Because this is a routine subpoena enforcement action applying established legal precedent to an uncomplicated factual record, the Commission does not believe oral argument is warranted.

STATEMENT OF JURISDICTION

The district court had jurisdiction over this matter pursuant to section 107(a) of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12117(a), which incorporates sections 706(f)(3) and 710 of Title VII, 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-9, and 29 U.S.C. § 161(2). This Court has jurisdiction over this appeal from the district court’s final order pursuant to 28 U.S.C. § 1291. The district court issued its order enforcing the subpoena on July 21, 2016. RE.7-Pg.ID-111-12. UPS filed a timely notice of appeal on August 3, 2016. RE.8-Pg.ID-113-14.

STATEMENT OF THE ISSUE

Whether the district court properly enforced the EEOC’s subpoena based on its finding that the information sought is relevant to the EEOC’s investigation of a valid ADA charge.

STATEMENT OF THE CASE

A. Course of Proceedings

This is a subpoena enforcement action pursuant to section 107 of the ADA, 42 U.S.C. § 12117. On April 21, 2016, the EEOC filed an application for an order to show cause why a subpoena issued by the agency on February 4, 2016, should not be enforced. RE.1-Pg.ID-1-24 (Application); RE.1-Pg.ID-35 (subpoena). On July 21, 2016, the district court granted the application and directed UPS to comply with the subpoena. RE.7-Pg.ID-111-12. This appeal followed.

B. Statement of Facts

Sinisa Matovski worked as an Operations Manager in UPS’s Ford West Park facility in Dearborn, Michigan. On two occasions in 2013, Matovski contacted UPS’s human resources department to complain about alleged discrimination based on his disability and on his need for a reasonable accommodation. RE.1-Pg.ID-30 (3/25/14 EEOC charge of discrimination). Also in 2013, Matovski requested a medical leave of absence as an accommodation of his disability. RE.1-Pg.ID-30 (EEOC Charge). Matovski learned from a UPS manager in another state that his confidential medical information related to his disability, including his condition and symptoms, were published on UPS’s Health and Safety intranet site, which is accessible by UPS managers nationwide. Id.; see also RE.5-Pg.ID-106 (Plaintiff’s Reply to Respondent’s Response to the Application for an Order to Show Cause). According to UPS, the company collects safety information to help identify injuries and accidents and their causes, and puts that information into a Microsoft Excel report. RE.1-Pg.ID-41 (UPS Petition to Modify Subpoena). Matovski requested that UPS remove his confidential medical information on February 11, 2014, but UPS did not remove the information from its intranet site. RE.1-Pg.ID-30 (EEOC Charge). Matovski alleged that he experienced increasingly negative treatment after communicating with human resources. Id.

Matovski filed a charge with the EEOC on March 25, 2014, alleging that UPS violated the ADA and retaliated against him because of his disability. His charge states:

In September of 2013, I requested a medical leave on account of my disability. Information related to that request, including my condition and symptoms and basis for my leave [is] published on the company’s Health and Safety intranet site. I believe this is in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112(d). I requested my private health information related to my disability be removed on February 11, 2014, but it remains accessible to other UPS employees as of today’s date.

In addition, since I have disclosed my disability, I have been subjected to heightened scrutiny of my performance and subjected to negative treatment that my peers who do not have disabilities do not face. In the spring of 2013 and again in October of 2013, I complained to Human Resources about what I believed to be discriminatory treatment based on my disability and need for accommodation, and since I raised these concerns, the negative treatment has accelerated.

I suffered adverse employment actions in violation of Title I of the Americans with Disabilities Act of 1990, as amended.

RE.1-Pg.ID-30. The Commission mailed a Notice of Charge of Discrimination to UPS on April 3, 2014. RE.1-Pg.ID-31.

On February 16, 2015, Matovski amended his charge of discrimination to add that he is “aware that all other employees subject to Health and Safety incident action/reports have had their confidentiality breached in the same manner as me.” RE.1-Pg.ID-32. The amended charge also states that, “I further believe all other employees subject to Health and Safety incident actions/reports have suffered a breach in confidentiality, in violation of the Americans with Disabilities Act of 1990, as amended.” Id.[1]

The EEOC sent a Notice of Charge of Discrimination on February 23, 2015. RE.1-Pg.ID-33. The Commission requested information related to UPS’s alleged disclosure of Matovski’s and other employees’ confidential medical information on December 9, 2015. RE.1-Pg.ID-34. This request sought information regarding UPS’s previous and current databases that allegedly contain confidential medical information related to employees’ disabilities, and mirrored the information of the subpoena at issue in this appeal. Id. After UPS refused to respond to the request for information, the Commission subpoenaed the following information in Subpoena DT-16-13 on February 4, 2016: (1) a copy of UPS’s Health and Safety reports identifying injuries and accidents for the years 2013 to present; (2) a copy of the criteria for designating an accident or injury report as a “privacy case,” and documents regarding the implementation of that criteria; (3) a copy of the RiskConsul Oracle database that replaced the Health and Safety reports, from its date of implementation to the present; (4) a list of UPS Supply Chain Systems management with access to the Health and Safety report from January 1, 2013, to the present; (5) a list of UPS Supply Chain System management with access to the Oracle Database from the date of implementation to the present. RE.1-Pg.ID-35-36 (Subpoena DT-16-13 dated 2/4/17).[2]

UPS filed a petition to modify the subpoena on February 12, 2016, RE.1-Pg.ID-40-51, which the Commission denied on March 7, 2016. RE.1-Pg.ID-55-66. UPS has to date refused to provide the information requested in Subpoena DT-16-13. The district court issued an order to show cause on April 28, 2016, RE.2-Pg.ID-70-71, which UPS opposed on June 23, 2016. RE.4-Pg.ID-76-102.

C. District Court’s Decision

At the show cause hearing on July 20, 2016, the district court stated, “[T]he EEOC has enough discretion to get this material and it can be marked. If there is privileged [material], you can do a privilege log or whatever the document is called these days. So I’m going to rule for the EEOC on all three points.” RE.11-Pg.ID-134 (Motion Hearing transcript). The court added, “I am not going to issue an opinion[,] which is a relief to the law clerks. But for the reasons that the EEOC has put on the record and in their brief.” RE.11-Pg.ID-135. The district court’s written order states: “For the reasons stated on the record, the Court directs the Respondent to Comply with all three remaining points of the EEOC’s subpoena and the Order to Show Cause is vacated.” RE.7-Pg.ID-111-12.

STANDARD OF REVIEW

This Court reviews a district court’s decision to enforce an administrative subpoena for abuse of discretion. EEOC v. Roadway Exp., Inc., 261 F.3d 634, 638 (6th Cir. 2001).[3]

SUMMARY OF ARGUMENT

The district court’s order enforcing the Commission’s subpoena should be affirmed. The information sought by the subpoena is patently relevant to the Commission’s investigation of Matovski’s amended charge, which contains individual allegations of disability discrimination and retaliation, as well as an allegation of broader discrimination against other disabled UPS employees who may have had disability-related medical information published on the company’s internal injury report site.

The EEOC is investigating whether UPS violated the ADA in maintaining an injury report that every manager in the United States could access. Based on its statutory authority, the EEOC subpoenaed information that would inform the agency what disability-related medical information was and is currently published by UPS, and who had access to this information. The allegations stated in the amended charge implicate UPS’s nationwide monitoring policy. Accordingly, the Commission sought copies of year-end reports of UPS’s internal Health and Safety database from 2013 to the present, the criteria UPS uses for keeping certain medical information private and any implementing documents for this policy; and a copy of the RiskConsul Oracle database reports that replaced the Health and Safety reports from the time of its implementation to the present. The Commission’s entitlement to the information listed in the subpoena is manifest—the information regarding the company’s internal database is not just relevant to the investigation, the database itself is the subject of the investigation.

The district court was required to enforce the Commission’s subpoena as long as the investigation is within the agency’s authority, the subpoena is not too indefinite and the information sought is reasonably relevant to the investigation, and producing the information is not unduly burdensome. The subpoena issued pursuant to the amended charge meets these criteria. UPS’s arguments to the contrary are based on a gross misunderstanding of the meaning of “relevance” in the administrative subpoena context. And UPS does not make a serious attempt to show that producing the Health and Safety report databases, which could be emailed as Microsoft Excel documents, is unduly burdensome. UPS also attacks the “validity” of the amended charge, accusing the EEOC of using it to obtain information to which it is not entitled. This contention is merely a distraction from the applicable standards giving the Commission broad investigatory power that the agency has clearly met in this case. Consequently, this Court should affirm the district court and order UPS to comply with the subpoena so the Commission can complete its investigation.

ARGUMENT

The district court acted squarely within its discretion in enforcing the EEOC’s subpoena.

Congress granted the EEOC broad authority under Title VII of the Civil Rights Act of 1964 to obtain “any evidence . . . that relates to unlawful employment practices covered by this [title] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). The same authority extends to charges under the ADA. EEOC v. Waffle House, Inc., 534 U.S. 279, 285 (2002) (citing 42 U.S.C. § 12117(a)).

Subpoena enforcement proceedings are designed to be summary in nature and involve only limited judicial review. EEOC v. Roadway Express, Inc., 750 F.2d 40, 42 (6th Cir. 1984) (“A subpoena enforcement proceeding is a summary process designed to decide expeditiously whether a subpoena should be enforced.”). “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.” EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987); see also EEOC v. Shell Oil, 466 U.S. 54, 72 n.26 (1984) (“The district court has a responsibility to satisfy itself that the charge is valid and that the material requested is ‘relevant’ to the charge, and more generally to assess any contentions by the employer that the demand for information is too indefinite or has been made for an illegitimate purpose.”).

The district court correctly ruled that the EEOC was entitled to the subpoenaed information in this case. Matovski’s charge of disability discrimination and retaliation was filed with the EEOC on March 25, 2014, alleging that after he requested a medical leave because of his disability, “information related to that request, including my condition and symptoms and basis for my leave, [is] published on the company’s Health and Safety intranet site.” RE.1-Pg.ID-30. The charge further alleges that the information “remains accessible to other UPS employees” despite Matovski’s request to remove it. Id. The charge also alleges retaliation “since I have disclosed my disability” in the form of “heightened scrutiny of my performance” and “negative treatment that my peers who do not have disabilities do not face.” Id. Matovski amended the charge on February 16, 2015, to allege that other employees similarly have had the confidentiality of their medical information breached in violation of the ADA. RE.1-Pg.ID-32.

First, the subpoena is clearly within the EEOC’s authority and statutory duty to investigate a charge of disability discrimination under the ADA. See 42 U.S.C. § 12117(a). UPS does not dispute this. The amended charge implicates several possible ADA violations. The ADA requires that certain employee medical information be kept confidential. See 42 U.S.C. § 12112(d)(3)(B) (“information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record”); 29 C.F.R. § 1630.14(b)(1) (information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and be treated as a “confidential medical record”). Hence, UPS’s widely-accessible injury database could constitute a violation of the statute’s confidentiality requirement.

Maintaining the Health and Safety injury reports could also elicit information or disclosure regarding employee disabilities and could constitute a violation of the statute’s prohibition on inquiries likely to reveal information about a disability. See 42 U.S.C. § 12112(d)(4). The allegations contained in a charge “do not narrowly circumscribe the Commission’s investigation. Rather, the charge serves as ‘a jurisdictional springboard’ enabling the Commission ‘to investigate whether the employer is engaged in any discriminatory practices.’” EEOC v. Astra, U.S.A., 94 F.3d 738, 746 (1st Cir. 1996) (quoting EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir. 1975)).

Second, the information requested in the subpoena is relevant to the EEOC’s reasonable investigation of Matovski’s amended charge of discrimination. The Commission has broad subpoena power during an administrative, pre-suit investigation and is entitled to information that is relevant to the charge under investigation. EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979). While the relevance requirement should not be interpreted so broadly as to “render it a nullity,” the Supreme Court has explained that the limitations the requirement imposes “are not especially constraining.” Shell Oil, 466 U.S. at 68- 69. This Court has reiterated that, “[t]he Supreme Court has noted that ‘[s]ince the enactment of Title VII, 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.’” E.E.O.C. v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994) (quoting Shell Oil, 466 U.S. at 68–69); Cambridge Tile Mfg., 590 F.2d at 206 (“Notions of relevancy at the investigatory stage are very broad.”).

The EEOC’s subpoena asks for two limited categories of information that are directly relevant to its investigation. The Commission is investigating what employee medical or disability-related information was and currently is published by UPS as part of its accident or injury reports and who had or continues to have access to this published information. The EEOC seeks the injury report in its initial form, the Microsoft Excel file version, and its current version, the RiskConsul Oracle Database version. The reports could be accessed by managers throughout the company. Thus the allegations stated in the charge implicate UPS’s nationwide monitoring policy. The Commission therefore seeks information regarding UPS’s previous and current electronic databases containing employee medical information: copies of year end reports of UPS’s internal Health and Safety database from 2013 to the present, a copy of the database that replaced the Health and Safety database from its implementation to the present, as well as the criteria UPS uses for keeping certain medical information private, and the implementing documents for this policy. RE.1-Pg.ID-35 (subpoena).

The Commission is plainly entitled to the information listed in the subpoena. The EEOC has not yet made any determination as to whether UPS has published disability-related medical information in violation of the ADA. The EEOC seeks this information to determine whether there has been a violation. The database reports requested in the subpoena thus would confirm or refute the allegations in the charge. The information sought in the subpoena that UPS challenges is needed to determine the scope of UPS’s alleged practice of posting confidential medical information on its Health and Safety intranet site and to determine who was affected and how they were affected. The subpoenaed information is thus directly relevant to the amended charge’s allegations.

UPS argues in its opening brief that the Commission is using the subpoena for a “fishing expedition.” See UPS Br. at 21, 23. UPS maintains that the subpoena is too indefinite and seeks irrelevant information. The company argues the subpoena should be limited to three calendar years, limited geographically to employees in Matovski’s assigned district, and limited to the injury sheet within the Health and Safety database. UPS Br. at 14, 26.

The information requested is not overly broad and is targeted at investigating Matovski’s amended charge. The subpoena is temporally limited and requests information dating from 2013 to the present. This is appropriate because the subpoenaed information tracks the date of the alleged discrimination and is aligned with the allegation that although Matovski requested that his “private health information related to my disability be removed on February 11, 2014,” “it remains accessible to other UPS employees as of today’s date,” which was February 16, 2015. RE.1-Pg.-ID-32 (amended charge). This Court has “enforced EEOC subpoenas that sought post-charge information. Like pre-charge data, this information provides the context that is necessary to evaluate whether discrimination occurred.” EEOC v. Roadway Express, Inc., 261 F.3d 634, 642 (6th Cir. 2001) (citing Roadway Express, 750 F.2d at 43).

The information the Commission has subpoenaed is appropriately broader geographically than Matovski’s assigned facility as Matovski’s allegations of ongoing discrimination are not limited to his unit or position. Matovski alleges that UPS managers throughout the United States had access to his confidential medical information through UPS’s internal site containing the Health and Safety reports of employee injuries. It is undisputed that UPS’s alleged conduct involves a monitoring policy used throughout its facilities nationwide. “An employer’s nationwide use of a practice under investigation supports a subpoena for nationwide data on that practice.” EEOC v. Kronos Inc., 620 F.3d 287, 298 (3d Cir. 2010); see also Cambridge Tile Mfg., 590 F.2d at 206 (“A company’s business practices are not so compartmentalized as the defendant in this case would contend.”). And Matovski alleges that other employees subject to UPS’s Health and Safety incident actions or reports have had their confidential disability-related medical information unlawfully posted, not just individuals in his unit or region. RE.1-Pg.ID-32 (amended charge). The Commission is thus investigating the allegation that UPS published the confidential disability-related medical information of Matovski as well as other potential harmed employees. “[I]t is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired.” Shell Oil, 466 U.S. at 69.[4]

UPS complains that because Matovski was a Network Account Manager II in District 7 at a facility in Dearborn, Michigan, the EEOC is entitled only to information regarding employees in the same district or job category. UPS Br. at 22-23. UPS also protests that request 1 is not limited to information about employees “comparable or nearly identical to Matovski.” Id. at 22.

There is no authority, and UPS cites none, for its claim that the EEOC must confine its investigation to employees “nearly identical” to Matovski. The charge alleges that UPS violates the confidentiality rights of other employees in addition to Matovski by maintaining these injury reports. This allegation is not limited to employees in Matovski’s position or location in the company. And in its investigations, the Commission is entitled to information of any type which might shed light on the allegations in the charge, including information regarding any other employee—not just those in charging party’s specific job—whose medical information has been improperly divulged.

UPS also argues it should not have to produce the RiskConsul Oracle Database, request 3, that replaced the Health and Safety report because it “was not in existence at the time of the alleged violations or when Matovski made his initial charge.” UPS Br. at 24-25. Again, this information is manifestly relevant to the EEOC’s investigation of the charge because the EEOC is investigating UPS’s alleged practice of posting confidential medical information beginning in 2013. Whether UPS is still posting such information is relevant to the investigation.

UPS further claims the EEOC is not entitled to information about its classification of some matters as “privacy cases” because it is undisputed Matovski was not listed as a privacy case. UPS Br. at 23. As part of the EEOC’s investigation of the allegations that UPS has a practice of publishing disability-related medical information on its intranet site, it is important to understand how and why some cases are classified as privacy cases and some are not. Although Matovski’s disability-related information and need for accommodation was not categorized as a privacy case, the EEOC is attempting to discern why that is, what cases are classified that way, and whether those cases are kept confidential and not posted on the intranet site.

UPS also contends that Matovski’s amended charge is not “valid,” and thus cannot justify the subpoena because it was amended for “an illegitimate purpose”—to allow the EEOC access to documents the original subpoena could not reach. UPS Br. at 16. UPS asserts that enforcing the subpoena would allow the EEOC to “serve an overly broad and unduly burdensome subpoena request, seeking information not relevant to a charge.” Id. at 19. This argument is neither factually or legally accurate.

Matovski amended his charge to clarify the scope of the alleged discrimination, not to allow the Commission to obtain information irrelevant to its investigation. The first subpoena (DT-15-14, which is not in the record) asked for the Health and Safety reports for the years 2011- 2013 in Excel format, while the second, operative subpoena (DT-16-13) requests the Health and Safety reports for the years 2013 to the present. RE.1-Pg.ID-25. The second subpoena also requests the “RiskConsul Oracle Database,” which was the newer database that replaced the Health and Safety reports, from the date it was implemented to the present. The Commission’s subpoena authority is at all times cabined by the limits of relevance and undue burden and, as discussed previously, the subpoenaed information is manifestly relevant. UPS does not explain why the subpoenaed information is not relevant to Matovski’s charge, nor does it make any showing that producing the information would be unduly burdensome on the company.

Nor is there any merit to UPS’s argument that the amended charge is not “valid.” The EEOC’s regulations provide that “a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b); see also Shell Oil, 466 U.S. at 72 (charging party may not “merely . . . allege that an employer has violated Title VII”). Matovski’s amended charge clearly meets these basic requirements. It is written, identifies the parties, and describes generally the practices complained of: discrimination against Matovski and other employees at UPS who were the subject of a Health and Safety report and may have had confidential medical information about their disabilities published on the company’s intranet site. The charge lists the date parameters of discrimination as 2013 to the present; specifies the type of discrimination (disability and retaliation) and the conduct that is the alleged instrument of the discrimination, the Health and Safety report; and alleges that UPS violated the ADA. See RE.1-Pg.ID-32.

UPS further asks this Court to reverse and remand the case to the district court to allow “limited discovery into the circumstances regarding the amendment of Matovski’s charge and the provision of the underlying information to the EEOC,” citing EEOC v. Roadway Express, 590 F. Supp. 1063, 1066-67 (W.D. Tenn. 1984). UPS Br. at 20. In that case, Roadway Express noticed the deposition of the EEOC’s Memphis Director because the company believed the EEOC investigator who was investigating two charges of race discrimination “harbored personal animosity” against Roadway Express and “vindictively initiated issuance of the subpoenas in bad faith,” and one of the subpoenas issued was “deliberately framed to gather information entirely unrelated to the charge in such a way as to present the greatest burden to respondent.” 80 F. Supp. at 1064, 1065. The district court enforced the EEOC’s subpoenas and granted the agency’s motion for a protective order preventing Roadway Express from deposing its Memphis director. The court noted that, “[c]onsistent with the summary nature of proceedings to enforce an administrative subpoena, discovery is usually not permitted” during a subpoena dispute, and stated that Roadway would have had to offer specific facts that the EEOC, as an agency, acted in bad faith in issuing the subpoena, which Roadway Express failed to do. Id. at 1066. This Court affirmed the district court’s order enforcing the subpoena with no mention of the protective order. See Roadway Express, 750 F.2d at 43.

There is nothing “dubious” about Matovski’s amended charge or its timing, and UPS makes no attempt to explain how the EEOC as an agency acted in bad faith in issuing the subpoena at issue in this case. The amended charge was filed on February 16, 2015, and the EEOC granted the petition to modify on February 25, 2015. Like the subpoena the district court enforced in Roadway Express, “the information sought is not only highly relevant, it is essential to the Commission’s investigation of the charge.” 80 F. Supp. at 1067. In addition, because UPS did not ask the district court for discovery or raise any allegations that the EEOC was acting in bad faith in the proceedings below, this Court should not consider the argument for the first time on appeal. See, e.g., United States v. Doxey, 833 F.3d 692, 704 (6th Cir. 2016) (arguments not raised below are generally waived on appeal).

Although the Commission did not continue its investigation on the basis of Matovski’s original charge, the agency would have been entitled to the Health and Safety database reports and newer versions that were subpoenaed even without Matovski’s additional allegation of class-wide discrimination. UPS’s argument to the contrary reveals a misunderstanding of the applicable legal standards. “Notions of relevancy at the investigatory stage are very broad, and so long as the EEOC is not wandering into wholly unrelated areas, . . . the Commission has the power to investigate and thus to subpoena documents concerning any employer practice which may shed light on the discrimination charged.” Cambridge Tile Mfg., 590 F.2d at 206 (internal citation omitted). Applying the broad standard for relevancy, this Court has held repeatedly that the agency’s investigation is not limited to the specific allegations of the charge under investigation. See Roadway Express, 750 F.2d at 43 (the “relevancy limitation does not, however, force the EEOC only to review evidence concerning the specific charge”); Blue Bell Boots v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (information concerning “job classifications or hiring situations other than those of the complainants” is relevant to investigation of individual charges because it may show a pattern of race discrimination and may assist the EEOC in framing a remedy) (cited with approval in Shell Oil, 466 U.S. at 69 n.20).

UPS’s internal Health and Safety database reports are relevant to the allegations of individual disability discrimination and retaliation stated in Matovski’s initial charge. “The employer’s pattern of action provides context for determining whether discrimination has taken place.” Roadway Express, 261 F.3d at 639.

Although, as UPS notes, there are limitations to how far away the EEOC’s investigation may move from the specific allegations of a charge, the information sought in the subpoena is closely related to Matovski’s individual as well as class-wide allegations. The fact that the Commission could have obtained the same database reports based on Matovski’s original charge further undermines UPS’s suggestion that Matovski amended his charge so that the EEOC could pursue information it otherwise could not obtain.

Finally, complying with the subpoena would not pose a significant hardship for UPS. A court may “modify or exclude portions of a subpoena only if the employer ‘carries the difficult burden of showing that the demands are unduly burdensome or unreasonably broad.’” EEOC v. United Air Lines, 287 F.3d 643, 653 (7th Cir. 2002) (quoting FTC v. Shaffner, 626 F.2d 32, 38 (7th Cir. 1980)). What is unduly burdensome “depends on the particular facts of each case and no hard and fast rule can be applied to resolve the question.” Id. However, “[t]here is a presumption in favor of requiring an employer’s compliance with a subpoena when the EEOC inquires into legitimate matters of public interest.” EEOC v. Konica Minolta Bus. Solutions U.S.A., 639 F.3d 366, 371 (7th Cir. 2011).

The subpoena seeks UPS’s previous and current electronic database reports that potentially contain employees’ confidential disability-related medical information. The Health and Safety reports are in an Excel file maintained on the internal site, and the newer database could be exported to an Excel file. UPS has already admitted that the information sought is in an Excel spreadsheet. UPS never argues that providing the information would be unduly burdensome. Instead, the company points out that it is a “voluminous amount of data.” See UPS Br. at 23. This conclusory allegation does not meet UPS’s burden to show hardship. See United Air Lines, 287 F.3d at 653 (conclusory allegations of burdensome are insufficient).

Thus these electronic databases could easily be provided to the Commission with little, if any, burden to UPS. Given the size of UPS and large number of employees, any hardship would not approach being “unduly burdensome in the light of the company’s normal operating costs.” EEOC v. Maryland Cup Corp., 785 F.2d 471, 479 (4th Cir. 1986). Given that the subpoenaed information is plainly relevant to the EEOC’s investigation, and the burden of complying is slight, the district court’s decision to enforce the subpoena should be affirmed.

CONCLUSION

For the foregoing reasons, the order of the district court enforcing the Commission’s subpoena should be affirmed.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/ Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,471words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/ Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

Dated: March 1, 2017

Record Entry #	Document Description	Page ID #
1	Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced	1-69
2	Order to Show Cause	70-71
4	UPS-SCS’s Response in Opposition to the Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced	76-103
5	Plaintiff’s Reply to Respondent’s Response to the Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced	104-08
7	Order Directing the Respondent to Comply with the Subpoena; Vacating Order to Show Cause	111-12
8	Notice of Appeal	113-14
9	Certificate of Service re: Notice of Appeal	115
10	Certificate of Service re: Notice of Appeal	116
11	Transcript of July 20, 2016 Motion Hearing	117-36

[1] The EEOC issued a request for information on July 29, 2014, and when UPS did not respond, issued subpoena DT-15-14. UPS filed a petition to modify the subpoena with the Commission on February 9, 2015. See generally 29 C.F.R. § 1601.16(b) (petition procedures). After UPS submitted its petition but before the EEOC ruled on it, UPS submitted partially responsive documents on February 13, 2015. The EEOC granted the petition to modify on February 25, 2015 (not on February 13, 2015, as UPS states at p. 7 of its brief as appellant). The initial request for information, the first subpoena, UPS’s petition to revoke or modify the first subpoena, and the EEOC’s determination all are not part of the district court record. These documents have no bearing on the Commission’s entitlement to the information sought by the second subpoena, which is at issue in this appeal.

[2] The EEOC withdrew requests 4 and 5 from the subsequent enforcement action because UPS conceded in its materials that all managers in the company could view the Excel files requested, which removed the need to obtain a list of personnel with access to the files. RE.5-Pg.ID-107 (Plaintiff’s Reply to Respondent’s Response to Application for Order to Show Cause).

[3] On February 21, 2017, the Supreme Court heard argument in McLane Co. v. EEOC, No. 15-1248, and will decide “[w]hether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standard of review.” As we argued in our opposition to UPS’s motion to stay proceedings pending the outcome of the McLane Supreme Court litigation, the EEOC is entitled to the information sought in its subpoena under either standard of review.

[4] UPS argues that subpoena request 1, which seeks the year-end Health and Safety reports from 2013 to the present, is not relevant and overbroad because only the “injury detail” sheet contained information regarding Matovski’s disability, and UPS has produced it. UPS Br. at 21. This again exposes a fundamental misunderstanding of relevance in the subpoena enforcement context. The Commission is investigating Matovski’s allegations that confidential disability-related medical information has been improperly published on UPS’s internal site viewable by other UPS employees. The EEOC requires the entire Health and Safety database to ascertain whether, and to what extent, UPS is violating the ADA in posting medical information. See, e.g., EEOC v. Franklin & Marshall Coll., 775 F.2d 110, 116 (3d Cir. 1985) (“Clearly, an alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation.”); EEOC v. McLane Co., Inc., 804 F.3d 1051, 1057 (9th Cir. 2015) (“If the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it.”).