STATEMENT OF JURISDICTION

The district court had jurisdiction over this subpoena enforcement action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(3), and 42 U.S.C. § 2000e-9. Section 2000e-9 incorporates by reference 29 U.S.C. § 161 of the National Labor Relations Act. The court also had jurisdiction under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 626. The district court’s July 5, 2017, order denying the EEOC’s application (District Court Record No. (R.) 31) is a final, appealable order that this Court has jurisdiction to review under 28 U.S.C. § 1291. The Equal Employment Opportunity Commission (EEOC or Commission) filed a timely notice of appeal (R.33) on September 1, 2017. See Fed. R. App. P. 4(a)(1)(B)(ii).

1. Did the district court abuse its discretion when it refused to enforce the EEOC’s administrative subpoena on the ground that it believed that the information the EEOC seeks—in an effort to investigate the Charging Party’s allegation of systemic, class-wide sex discrimination—was not relevant to the Charging Party’s asserted personal harm? The EEOC addressed this issue below at Excerpts of Record, Volume II (II‑ER.) at 214-216; II-ER.83-89; and II-ER.77-80.

2. Did the district court abuse its discretion when it held, in the alternative, that full compliance with the EEOC’s administrative subpoena would impose an undue burden on VF Jeanswear, where the district court applied the wrong legal standard to assess undue burden and VF Jeanswear failed to meet its burden under the correct standard? The EEOC addressed this issue below at II‑ER.216-218; II-ER.89-91.

STATEMENT OF THE CASE

This subpoena enforcement action is part of the EEOC’s investigation of an administrative charge of discrimination that Lori Bell filed in July 2014 against VF Jeanswear, LP, d/b/a Wrangler Jeans. The charge alleges, among other things, the existence of a glass ceiling at Jeanswear that affected Bell and other women. II-ER.221. The subpoena asks Jeanswear to produce information relevant to investigating whether women in specified portions of Jeanswear’s operations were deprived of opportunities to advance to higher-level positions within the company. II-ER.283. The district court declined to enforce the subpoena and held, in the alternative, that if that ruling was error, it would enforce the subpoena only partially. Excerpts of Record, Volume I (I-ER.) at 1-14.

A. Statement of the Facts

Jeanswear is an apparel company that manufactures and sells denim jeans and other clothing to retailers nationwide. II-ER.225-226. The company employs approximately 2,500 employees in facilities located throughout the United States. II-ER.123. Bell was one of about 150 sales staff and merchandisers who work remotely from their homes or in Jeanswear offices in Texas, Colorado, Wisconsin, or New York City. Id. Another 900 employees work in administrative, managerial, product development, or support positions in offices located in North Carolina or Kansas. Id. The company’s remaining employees work in its five distribution centers or its trucking operations in South Carolina and Texas. Id.

Bell held various positions during her tenure with Jeanswear and its predecessor. She initially worked in a variety of roles as part of the “sales support team.” II‑ER.163. In 1995, Jeanswear promoted her into the first of two supervisor/manager positions, and she served as a supervisor/manager in either Retail Productivity Management (RPM) or Retail Space Management (RSM) for the next twelve years. II-ER.163-165. In both jobs, Bell managed or supervised between 15 and 25 individuals. II‑ER.165.

In October 2007, Jeanswear promoted Bell again, to an Account Executive position (II‑ER.121, 125, 166), which Bell refers to in her charge as “Executive Sales Representative.” See II-ER. 221. She worked out of her home and was assigned to the company’s Wrangler division, where she was responsible for Jeanswear’s Boot Barn account. II-ER.121, 125, 166, 168. After more than twenty years with the company, Bell resigned from Jeanswear in February 2014 in lieu of accepting a demotion. II-ER.238-239. Four months later, she filed a charge of discrimination with the EEOC. II-ER.221.

Bell’s charge alleges that she and “a class of females have been discriminated against because of sex (female), in violation of Title VII.” II‑ER.221. Specifically, the charge alleges that while Bell worked for Jeanswear she “was not offered any higher level position than Executive Sales Representative” but was, instead, “demoted to a lesser position” with “significantly less pay.” Id. The charge further alleges that “[f]emales are not afforded … opportunit[ies] in top level positions. Top level positions are male dominated,” and that Bell’s manager commented on how great it was to see all the “young men being promoted [into] top positions.” Id. Bell’s charge also alleges that while working at Jeanswear, she was harassed and demoted based on her sex and her age and was paid less than men performing the same work, in violation of Title VII, the Equal Pay Act (EPA), and the Age Discrimination in Employment Act (ADEA). Id. The Commission sent Jeanswear a copy of the charge and asked the company for its response to the allegations. II-ER.223.

Jeanswear responded by asking the Commission to dismiss Bell’s EEOC charge because she had already filed a private lawsuit against the company alleging violations of the EPA. II-ER.225-226; see Bell v. VF Jeanswear LP, Civ. No. 2:14-cv-1916 (D. Ariz.) (II-ER.228-234). The company further stated that Bell had resigned from her Account Executive position “in lieu of accepting a job reassignment to … Field Sales Representative.” II-ER.226.

Jeanswear attached Bell’s resignation letter. II-ER.226, 238-239. In it, Bell explained that she was resigning rather than accept a new position with “significantly lesser responsibilities and compensation opportunities.” II-ER.238. She further complained in the letter that Jeanswear had replaced her with a younger man and had also refused her request for a lateral transfer, instead promoting a younger man into that position. Id.

The EEOC declined to dismiss the charge based on Bell’s private lawsuit and proceeded with its investigation. In November and December 2014, the Commission sent Jeanswear a request for information (RFI) seeking ten categories of information. II-ER.241-244, 246-250. The request sought, among other things, the job description and salary range for Bell’s former position, and information about the other individuals who held the same position since January 1, 2012, including whether any other Executive Sales Representatives were promoted, demoted, or resigned during the relevant time. II-ER.242-243. The last item (Request No. 10) sought information about the company’s entire workforce. II‑ER.243-244. Jeanswear responded by urging the Commission, again, to cease processing Bell’s charge because she had filed a private lawsuit. II-ER.252-253.

At Bell’s request, the Commission issued her a right-to-sue notice in December 2014.[1] II-ER.254; II-ER.158. EEOC regulations indicate that issuing this notice ends the EEOC’s investigation unless the Commission determines that continuing to process the charge “would effectuate the purpose of title VII.” 29 C.F.R. § 1601.28(a)(3). The EEOC made such a determination here and advised both parties in the right-to-sue notice that it was continuing to process Bell’s charge. II-ER.158. The Commission then reissued the same RFI. II‑ER.256-259. Jeanswear responded to the first nine items and partially to the tenth (the portions that Jeanswear believed related directly to Bell’s claims of personal harm). II-ER.261-264; see also Excerpts of Record, Volume I (I-ER.) at 23 (Hearing Transcript at 9:2-5).

Jeanswear objected to Request No. 10 to the extent it sought information on all Jeanswear employees. See I-ER.23 (Hearing Tr. at 9:5-9). Jeanswear provided the requested information for the thirteen Account Executives who held the same position as Bell; the company otherwise refused to comply. II-ER.263-264. Jeanswear stated that it would re-evaluate its refusal if the Commission would “explain why the requested information is pertinent to the investigation of Ms. Bell’s Charge of Discrimination.” II-ER.264.

Jeanswear continued to object to producing this information even after the EEOC modified the request by limiting it to “supervisors, managers and executive employees” rather than all Jeanswear employees. II-ER.266, 269, 272-273, 275-276. Jeanswear’s counsel stated that, because “[Bell’s] … charge of discrimination does not allege a claim of unlawful denial of a promotion,” the company believed the information requested, even if limited to supervisors, managers, and executives, was not “reasonably related to the charge filed by Ms. Bell.” II‑ER.269; see also II-ER.275-276.

Pursuant to its authority under Title VII, the EPA, and the ADEA, the EEOC issued an administrative subpoena on August 12, 2015, that embodied RFI Request No. 10 as modified in response to Jeanswear’s objections. II-ER.283. The subpoena directed Jeanswear to “[s]ubmit an electronic database identifying all supervisors, managers, and executive employees at VF Jeanswear’s facilities during the relevant period, January 1, 2012, to present.” Id. The subpoena directed Jeanswear to provide, for each such individual:

a. employee identification number, if applicable,

b. name,

c. age and sex,

d. facility name and location,

e. date of hire,

f. position(s) held and date in each position,

g. if no longer employed, date of termination and reason for termination

h. last known home address, e-mail, SSN, and telephone number.[2]

Id.

Jeanswear petitioned the full Commission to revoke the subpoena (II‑ER.290-296), which the Commission denied in December 2015. II-ER.298-309. The Commission’s decision explained: “Bell’s charge alleges classwide gender discrimination” and the information requested is relevant to “whether [Jeanswear] discriminated against Bell and other qualified female employees by refusing to promote them because of their sex.” II-ER.305-306 (citing EEOC v. McLane Co., 804 F.3d 1051, 1056-57 (9th Cir. 2015) (McLane I), rev’d on other grounds by McLane Co. v. EEOC, 137 S. Ct. 1159 (2017)). The decision further stated that “the Commission’s request for a list of supervisors, managers, and executives will provide it with witnesses who may reveal whether Petitioner systematically excludes women from its upper ranks.” II-ER.306 (citing McLane I, 804 F.3d at 1056-57).

When Jeanswear continued to refuse to provide this information, II-ER.311, 203-204, the Commission sought enforcement in district court.[3] II-ER.197-199. The application for enforcement explained that the Commission sought this information “to assess the validity of [Bell’s] claims of discrimination against herself and a class of female employees and determine whether, in fact, female employees were not given similar promotional opportunities as male employees.” II-ER.208. The Commission argued that the information would “help shed light on whether [Jeanswear’s] top level ranks are male-dominated,” “allow the EEOC to analyze whether women are afforded similar promotional opportunities” as compared to men, and might “also help the Commission formulate other requests for information.” II-ER.215-216; see also II-ER.87-89.

Jeanswear opposed the application. II-ER.96. The company argued that the EEOC could not seek promotion-related information because Bell’s charge did not allege failure to promote, as confirmed by the absence of any such claim in her private lawsuit. Jeanswear asserted that the scope of the EEOC’s investigative authority was defined and limited not by the allegations in Bell’s EEOC charge or a reasonable investigation that ensued from the charge, but by the claims Bell chose to assert in her subsequent private lawsuit, as that proceeding unfolded. II‑ER.97-98, 107-111. And while acknowledging circuit authority to the contrary, Jeanswear argued that the EEOC lacked authority to issue a subpoena after it issued Bell her right-to-sue notice. II-ER.106-107.

Finally, Jeanswear asserted that it would be unduly burdensome to produce the requested information for the more than 600 supervisors, managers, and executives who currently held such a position or had at any time since January 1, 2012. II-ER.115-117. Relying on the declaration of its Vice-President for Human Resources North America, Jeanswear estimated that to extract the information from the two human resources (HR) information systems it used during the relevant timeframe (Workday at present and PeopleSoft from 2002 to 2014), it would take one HR official eight full weeks of doing nothing else at a projected salary cost of approximately $10,700. II-ER.128-132.[4]

In response to Jeanswear’s burdensomeness assertion, the EEOC agreed to modify its request for information about other positions held in the company, and limit the timeframe by only going back to January 1, 2012. II-ER.91. The EEOC otherwise argued that Jeanswear had artificially inflated the effort and time needed to obtain the requested information. Id. The EEOC relied on a declaration from the EEOC’s then-Director of Program Research and Surveys Division, Ronald Edwards, who at the time oversaw the Commission’s statistical analysis of data relating to charges of discrimination. II-ER.94, ¶1. Edwards explained that PeopleSoft and Workday have the capacity to capture the information the EEOC seeks here, and that the EEOC routinely receives the type of data sought here from companies utilizing these systems. II-ER.94-95, ¶¶ 2-8. He further attested that PeopleSoft and Workday allow users to generate reports and Excel spreadsheets that contain specified personnel information for specified individuals, without the need to copy and paste individual personnel information manually from these databases. Id., ¶¶ 5-7.

The court held a hearing on September 30, 2016. I-ER.15-66. The EEOC informed the court—as it had advised Jeanswear beforehand—that it was further limiting its request to the supervisors, managers, and executives in only two portions of Jeanswear’s operations: the 150-person sales department (scattered throughout the country), and the Jeanswear operations in Greensboro, North Carolina, and Kansas (an additional 900 employees). I-ER.42-44. The Commission explained that this information was relevant to investigation of whether “there is a glass ceiling at the company” and would help identify potential witnesses who could discuss whether the company operates under “a tap on the shoulder culture.” I-ER.45, 47, 51-54; see also I-ER.3.

As noted, Jeanswear had previously represented that for its entire 2,500-person workforce, there were over 600 current or former supervisors, managers, and executives who fell within the EEOC’s request. II-ER.117. Jeanswear never explained how many fewer current or prior supervisors, managers, and executives fell within the EEOC’s modified request. Instead—despite the fact that the modified request encompassed less than half of Jeanswear’s total workforce—Jeanswear’s counsel advised the court orally that the EEOC’s narrowing of the subpoena would reduce its estimated response time from eight weeks to five, not including any time needed to supplement a computer search with a search of paper files or people’s memories. I-ER.38, 44-45. Jeanswear’s counsel did not explain the basis for this estimate or provide any evidence to support it.

The company claimed it had only one person authorized to retrieve the information; the task could not be delegated; and that one person “is an integral part of the human resources function who has a regular full time job of doing things on a regular basis.” I-ER.38. Counsel stated, without elaboration: “[T]o say that they [sic] have to be sidelined for eight [sic] weeks is unreasonable.” Id.; see also II-ER.132, ¶¶ 44-45 (same).

Although the EEOC had submitted Edwards’s declaration five weeks before the hearing, Jeanswear did not respond to it. The company gave no indication it did not use PeopleSoft and Workday to maintain the information the EEOC sought, see I-ER.13 & n.4, and submitted no evidence disputing Edwards’s attestations concerning the ease of compiling information maintained under the two systems.

The court took the case under advisement. The matter was still pending six months later, when Bell tried her Title VII and EPA sex discrimination/equal pay claims in March 2017. The jury awarded Bell $28,000 in compensatory damages and $500,000 in punitive damages (later reduced to $300,000). See Bell v. VF Jeanswear LP, Civ. No. 14-cv-01916-PHX-JJT, District Court Record #204 (3/31/2017 jury verdict).

The district court thereafter asked the Commission if, given Bell’s favorable jury verdict, the EEOC continued to seek enforcement of the subpoena. II-ER.71.[5] The Commission confirmed that it did, explaining: “The EEOC is investigating class-wide allegations of discrimination.… [that Jeanswear] failed to promote or employ women in top level positions.” II-ER.69. The EEOC stated that Bell’s favorable jury verdict was “relevant to the EEOC’s investigation, but not dispositive,” because the Commission was investigating whether Jeanswear also subjected other women, besides Bell, to employment discrimination. II-ER.69-70.

B. District Court Decision

On July 5, 2017, the district court denied the Commission’s application to enforce the subpoena. I-ER.1-14 (Order). At the outset, the court acknowledged that the Commission has the authority to continue investigating a charge despite having issued a right-to-sue notice, rejecting Jeanswear’s argument to the contrary. I-ER.4-5 (citing EEOC v. Federal Express Corp., 558 F.3d 842, 845, 854 (9th Cir. 2009)). The court nevertheless ruled the requested information was not relevant to Bell’s charge based on its views that (1) Title VII limits the EEOC to investigating discrimination that the charging party alleges she experienced personally, and (2) Bell did not allege that Jeanswear excluded her from, or denied her an opportunity to obtain, a top-level position. I-ER.5-10.

The district court noted that Bell’s charge included an allegation that females are not afforded the opportunity to attain “top level positions” (I-ER.2, 6, 9), and the court did not question that the requested information would be relevant to an investigation of systemic gender discrimination in upper-level jobs. The court stated, however, that Bell herself had “never held, sought, or was refused a managerial or ‘top’ position,” and dismissed that part of her charge as a mere “tip” or “hunch” that had no bearing on her “own experience or detriment.” I-ER.9-10. The court further noted that Bell had filed a private lawsuit that the court said had “nothing to do with systemic employment practices, management jobs, or promotion,” referencing evidence the court said was presented at Bell’s trial. I‑ER.2, 9 n.2.

The court characterized Bell’s EEOC charge as alleging “a one-off discriminatory demotion and unequal pay” and described the “crux” of its inquiry as “whether Bell’s charge of demotion is enough for a companywide and nationwide subpoena for discriminatory promotion, a discriminatory practice not affecting the charging party.” I-ER.9-10 (emphasis added). The court concluded that the EEOC’s request “is too removed from Bell’s charge of one-off demotion from a sales job to be relevant in a practical sense” and denied the EEOC’s application. I-ER.10.

Alternatively, the court stated that if it “err[ed] in not enforcing the subpoena because it exceeds relevance,” it would limit any order of compliance to “only the data that [Jeanswear’s] computer system will yield.” I-ER.14. The court opined that “[t]he entire universe of data [requested in the EEOC’s subpoena] is not needed for statistical analysis” and concluded that limiting compliance to a computer search was, “on balance, … reasonable” and any additional compliance “would be unduly burdensome.” Id.

After noting that this Court has not yet addressed how to measure undue burden in the context of subpoena enforcement, the district court adopted a test that considered relevance a second time. That test, used in two circuits prior to the Supreme Court’s 2017 decision in McLane Co., required courts “‘to weigh the likely relevance of the requested material to the investigation against the burden to [the employer] of producing the material.’” I-ER.11 (quoting EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 763 (11th Cir. 2014) (other citation omitted)). The court declined to apply the undue burden standard used by the majority of circuits that requires a respondent to show that compliance would seriously disrupt normal business operations—a showing that, the court acknowledged, Jeanswear never attempted to make here. I-ER.11-12.

Assessing relevance a second time, the court characterized the value of the information to the EEOC’s investigation as “attenuated at best.” I-ER.11. The court stated that the EEOC’s briefs did not focus on “anything specific [the EEOC] would do with the data to yield usable conclusions” and concluded, on this basis, that “the balance of relevance against burden starts with faith, hope, and mystery on the EEOC’s side.” I-ER.11-12.

The court then weighed its view of relevance against the hardship of complying with the EEOC’s original subpoena request rather than the Commission’s narrower, modified request. I-ER.12-13. The court noted several gaps in Jeanswear’s hardship evidence, including Jeanswear’s failure to “state whether compliance would ‘seriously disrupt’ normal business operations.” I‑ER.12; see generally I‑ER.12-14. The court nevertheless stated that it would be unduly burdensome to require Jeanswear to do anything more than search its computer records, and, as an alternative ruling, limited enforcement “to this extent and no further.” I-ER.14.

SUMMARY OF ARGUMENT

The district court abused its discretion and erred as a matter of law both when it denied enforcement on the ground that the requested information is not relevant to Bell’s allegations of personal harm and when it ruled, in the alternative, that Jeanswear would be unduly burdened by full compliance.

The court’s relevance analysis rests, first, on a misreading of Bell’s charge. In concluding that Bell did not allege experiencing the same discrimination she said women generally experienced at Jeanswear, the court ignored Bell’s explicit statement that Jeanswear never offered her any higher-level position than Executive Sales Representative. This allegation accords with Bell’s class allegation that Jeanswear did not afford women access to top-level positions in the company. The court further erred to the extent it based its relevance ruling on subsequent developments in Bell’s private lawsuit—including which claims she chose to advance and which claims she did not—apparently based on the mistaken belief that Bell’s private lawsuit essentially modified the content of her earlier charge and, by extension, the EEOC’s authority to investigate.

The court also abused its discretion by resting its relevance decision on two legal errors: its mistaken belief that the EEOC has authority to investigate allegations of class-wide discrimination only when the charging party alleges she personally experienced the same form of discriminatory harm as the class, and its incorrect belief that such allegations must satisfy a specified level of certainty before the EEOC has authority to investigate. Neither belief has any support in the language of Title VII, the EEOC’s regulations, or precedent of this Court or the Supreme Court.

Finally, the district court abused its discretion when it concluded that full compliance with the Commission’s request would unduly burden Jeanswear. The court applied the wrong legal standard when it assessed relevance a second time. The majority of circuits, and now the Supreme Court, reject blurring the relevance and undue burden inquiries. Instead, the court should have required Jeanswear to show that compliance would seriously disrupt its normal business operations or impose undue costs as compared to its normal operating costs.

The court further erred when, under the “double-relevance” test that it applied, it weighed Jeanswear’s bald assertion of undue burden—without any demonstration of what kind or how much burden it would entail—against the EEOC’s original RFI instead of the EEOC’s substantially-narrowed, modified request. Moreover, the district court erred by factoring in its flawed view of the value of the requested information to the EEOC’s investigation, incorrectly calling it “attenuated at best.” Applying the correct legal standards, the subpoena should be enforced.

ARGUMENT

The district court abused its discretion when it denied the Commission’s application to enforce this subpoena.

A. Standard of review

This Court reviews a district court’s decision to enforce or quash an EEOC subpoena for abuse of discretion. McLane Co. v. EEOC, 137 S. Ct. 1159, 1166-70 (2017). A district court “would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” Id. at 1168 n.3 (citation omitted); EEOC v. McLane Co., 857 F.3d 813, 816-17 (9th Cir. 2017) (McLane II) (same). A district court also abuses its discretion “if it rests its decision on a clearly erroneous finding of material fact.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000) (citation omitted). Whether the underlying charge on which the subpoena is based is “valid,” and whether a district court applied the correct legal standard in enforcing or quashing a subpoena, are both questions of law entitled to a de novo review by this Court. McLane Co., 137 S. Ct. at 1168 n.3.

B. Bell’s charge provides a proper basis for the EEOC to investigate her class allegation and to issue this subpoena seeking information relevant to investigating class-wide discrimination.

The EEOC seeks information through this subpoena to investigate Bell’s charge allegation that Jeanswear has a glass ceiling that prevents women from advancing to higher-level positions within the company. Congress entrusted the EEOC with primary responsibility for enforcing Title VII, which prohibits discrimination based on sex and other protected traits. See 42 U.S.C §§ 2000e-2(a), 2000e-5(a); McLane Co., 137 S. Ct. at 1164; EEOC v. Shell Oil Co., 466 U.S. 54, 61-62 (1984). Under this statutory scheme, the EEOC’s authority to investigate potential workplace discrimination is “‘triggered by the filing of a specific sworn charge of discrimination’” alleging a violation of Title VII, such as Bell filed here. McLane Co., 137 S. Ct. at 1164 (quoting Univ. of Pa. v. EEOC, 493 U.S. 182, 190 (1990)); 42 U.S.C § 2000e-5.

When the Commission receives such a charge, Title VII authorizes and directs the EEOC to “investigate ‘to determine whether there is reasonable cause to believe that the charge is true.’” McLane Co., 137 S. Ct. at 1164 (quoting Univ. of Pa., 493 U.S. at 190); 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.15(a). And where a charge “raises the specter of systemic discrimination,” as Bell’s allegation of class-wide discrimination against women does here, Title VII authorizes the EEOC to investigate the broader allegations beyond the alleged harm to the individual charging party. Federal Express, 558 F.3d at 855. Moreover, while “[t]he EEOC’s investigative authority is limited, at least initially, to the unlawful employment practices specified in the charge,” it can be expanded further “[i]f new facts come to light during an investigation.” EEOC v. McLane Co., 804 F.3d 1051, 1055 (9th Cir. 2015) (McLane I) (citations omitted), rev’d on other grounds by McLane Co., 137 S. Ct. at 1170.

In conducting its investigations, Title VII grants the Commission access to, and the right to copy, “any evidence of any person being investigated” that “relates to unlawful employment practices” covered by Title VII and “is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). This provision gives the EEOC “a broad right of access to relevant evidence.” McLane Co., 137 S. Ct. at 1165.

Notably, “relevance” in this context “is not especially constraining”; it “sweeps more broadly than it would at trial” and is not limited to evidence that would tend to prove a charge of unlawful discrimination. McLane II, 857 F.3d at 815 (quoting Shell Oil, 466 U.S. at 68-69). Nor is it limited to evidence that a district court might decide is “necessary” to the EEOC’s investigation. McLane I, 804 F.3d at 1057 (criticizing district court for denying subpoena enforcement on ground that EEOC did not show the evidence was necessary; stating that governing standard is “relevance,” not “necessity”). Indeed, the Supreme Court has stressed that the EEOC, under its statutory authority, may seek “virtually any material that might cast light on the allegations against the employer.” McLane, 137 S. Ct. at 1165 (citing Shell Oil, 466 U.S. at 68-69).

Consistent with this statutory authority, after the EEOC received Bell’s charge, it directed Jeanswear to provide information responding to the allegations in her charge. The EEOC’s RFI sought information relating both to Bell’s allegations of individual harm as well as to her broader allegation concerning women generally. See discussion at pp. 5-6, supra.

The information the EEOC asked Jeanswear to provide relating to Bell’s class allegation (RFI Request No. 10) fell well within the Supreme Court’s and this Court’s definition of relevance. See McLane II, 857 F.3d at 815-16. Among other things, Request No. 10 asked Jeanswear to identify current and former supervisors and managers and the positions they held, and to provide the type of information that would enable the EEOC to contact these individuals. Thus, this information would have enabled the EEOC to identify and contact witnesses who could help the Commission uncover whether Jeanswear affords women similar promotional opportunities as men, or systematically excludes women from its upper ranks. Cf. id. (upholding EEOC’s right to similar information in a Title VII sex discrimination investigation because speaking with other employees and applicants who have taken the company’s challenged strength test “might cast light on” the charging party’s allegation that company-wide use of a strength test discriminates on the basis of sex).

Because Jeanswear refused to produce this information (contending it was not relevant to an investigation of Bell’s charge), the EEOC issued a subpoena requiring its production in accordance with 42 U.S.C. § 2000e-9 and 29 U.S.C. § 161(1). See discussion supra at 6-7. And when Jeanswear refused to obey the subpoena, the EEOC sought enforcement in accordance with 42 U.S.C. § 2000e-9 and 29 U.S.C. § 161(2). See discussion supra at 7-8.

Thus, at every stage of this investigation—up to and including the EEOC’s application for judicial enforcement—the EEOC acted pursuant to well-established legal authority to seek information relevant to its investigation of this Title VII charge alleging class-wide discrimination. The subpoena should, therefore, have been enforced. In refusing to do so, the district court erred.

C. The district court’s grounds for denying enforcement rest on errors of law and fact.

The district court’s role in an EEOC subpoena enforcement proceeding is “straightforward.” McLane Co., 137 S. Ct. at 1165 (citing Univ. of Pa., 493 U.S. at 191; Shell Oil, 466 U.S. at 72 n.26). The district court may not use a subpoena enforcement action “to test the strength of the underlying complaint.” Id. (citing Shell Oil, 466 U.S. at 68-69). Instead, the court is limited to satisfying itself “that the charge is valid” and “the material requested is ‘relevant’ to the charge,” cognizant of the generous construction courts give the term “relevant.” Id. As this Court has emphasized repeatedly, “courts must enforce administrative subpoenas unless the evidence sought … is plainly incompetent or irrelevant to any lawful purpose of the agency.” Federal Express, 558 F.3d at 854 (citations omitted)).

This Court has identified three primary questions that guide the “narrow” scope of “judicial inquiry in an EEOC … subpoena enforcement proceeding”: “(1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.” Id. at 848 (citations omitted). Concerning the first question—whether Congress granted the EEOC the authority to investigate—this Court has emphasized “the ‘strictly limited’ role of the district court when an agency subpoena is attacked for lack of jurisdiction.” Id. (quoting EEOC v. Children’s Hosp. Med. Ctr. of N. Cal., 719 F.2d 1430 (9th Cir. 1983) (en banc), abrogated on other grounds as recognized in Prudential Ins. Co. v. Lai, 42 F.3d 1299, 1303 (9th Cir. 1994)). So long as “there is some ‘plausible’ ground for jurisdiction, or, to phrase it another way, unless jurisdiction is ‘plainly lacking,’ the court should enforce the subpoena.” Id. (quoting Children’s Hosp., 719 F.2d at 1426, 1430); see also id. at 850-51 (upholding enforcement of EEOC subpoena because EEOC did not “plainly lack” authority to issue it and there was at least a “plausible ground for jurisdiction”).

The district court here couched its decision as a ruling on “relevance,” but its explanation reveals that it was actually premised on the court’s erroneous conclusion that under the circumstances of this case, the EEOC lacked the authority to investigate Bell’s allegation of class-wide gender discrimination. See, e.g., I-ER.5-10. Indeed, the court expressed no doubt that the requested information would be relevant to an EEOC investigation of whether Jeanswear generally denied women opportunities to advance within the company. The court noted (I-ER.7) Jeanswear’s assertion of two specific challenges to the relevance of the EEOC’s information request to an investigation of Bell’s class allegations, but the court’s explanation for refusing to enforce the subpoena reflects neither concern.[6] Rather, the court’s opinion indicates that it denied enforcement because the EEOC sought information that the court said was not relevant to Bell’s allegations of personal harm, which the court characterized as “a one-off discriminatory demotion and unequal pay.” I-ER.9-10.

The court did acknowledge that Bell included class-wide allegations in her charge. See, e.g., I-ER.2, 6. And after Bell’s trial concluded, the EEOC advised the court that investigating this class allegation was the sole reason the EEOC continued to seek this information. II-ER.69-70. The court, however, characterized Bell’s class allegation as a mere tip or hunch and then opined, with no legal support, that the Commission’s “investigatory and subpoena powers” are not “triggered by tips or hunches.” I-ER.9-10. On this basis, the court concluded that the class-wide information the Commission seeks “is too removed from Bell’s charge of one-off demotion from a sales job to be relevant in a practical sense.” I‑ER.10.

This was error in three respects. First, the court read Bell’s charge too narrowly when it characterized her allegations of individual harm as limited to “demotion and unequal pay.” To the contrary, Bell expressly alleges that she, like the class, was not offered opportunities to advance. Second, the court apparently believed—erroneously—that the EEOC cannot investigate class allegations in an otherwise-proper charge unless the charging party asserts that she experienced the same discriminatory harm as the class. Third, in discounting Bell’s class allegation as a mere “tip” or “hunch” that cannot trigger the EEOC’s statutory powers, the court applied an unjustifiably heightened standard of certainty to the content of charges. The district court abused its discretion by resting its refusal to enforce on all three factual and legal errors. This Court should reverse.

1. The district court read Bell’s charge too narrowly.

When each of Bell’s statements is read in the context of her entire charge, it is evident that Bell’s charge includes an allegation that while she worked at Jeanswear, the company deprived her, like other women, of opportunities for advancement in favor of men. The court does not explain why it ignored this allegation in its analysis. The court’s references to Bell’s private litigation suggest the court may have believed that Bell’s failure to raise a promotion claim in her private lawsuit effectively nullified her allegation in her charge concerning her personal lack of advancement opportunity while at Jeanswear. Whatever the court’s reasoning, this allegation is in Bell’s charge. Ignoring it was an abuse of the court’s discretion.

It is well-settled in this circuit that courts are to “construe the language of EEOC charges with utmost liberality.” See, e.g., B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (citations omitted). As this Court has explained, charges “are made by those unschooled in the technicalities of formal pleading” and, consequently, may not always be as clear or as expansive as a document prepared by counsel. Id. B.K.B. addressed a slightly different legal question (whether the plaintiff had exhausted her judicial claims in an EEOC proceeding before filing suit), but courts have applied the same principle in determining whether information the EEOC seeks in an administrative subpoena is relevant to the charge on which the investigation was based. See, e.g., EEOC v. Kronos Inc., 620 F.3d 287, 300 (3d Cir. 2010) (construing the charge in question liberally and finding the EEOC’s subpoena sought relevant information).

Here, Bell’s charge alleges broadly: “I believe I and a class of females have been discriminated against because of sex (female), in violation of Title VII.” II-ER.221. More specifically, her charge alleges personal harm:

· she was demoted to a position with less pay and less responsibility despite “excellent performance appraisals and no performance write-ups”;

· she requested, but was denied, a lateral move;

· she received less pay than similarly situated men performing substantially the same work; and

· during her tenure, she “was not offered any higher level position than Executive Sales Representative,” but was “demoted to a lesser position and significantly less pay.”

Id. And her charge also alleges harm that extends to other women:

· “Females are not afforded the opportunity in top level positions. Top level positions are male dominated”; and

· her manager commented how “great” it was to see “young men being promoted” into “top positions.”

Id. Jeanswear, in responding to Bell’s charge, provided the EEOC with a copy of Bell’s resignation letter. II-ER.238. The EEOC learned further details from that letter, including that the person who replaced Bell was a younger man and that after Jeanswear denied Bell’s request for a lateral transfer to a vacant position, the company filled that position by promoting a younger, less experienced man into the position instead. Id.

When the EEOC asked Jeanswear to produce class-wide information, it had both Bell’s charge and her resignation letter. Reading Bell’s charge liberally and in light of the letter, the charge more than plausibly asserts that both Bell herself and other women experienced a glass ceiling at Jeanswear because of their sex.

At a minimum, the charge and other information before the Commission would certainly prompt the EEOC to investigate how Jeanswear fills higher level positions. This, in turn, would undoubtedly include whether the company advertises supervisory and management openings and encourages employees to apply, or instead uses a “tap-on-the-shoulder” process to pre-select employees for advancement. And although one way to investigate would be to ask Jeanswear to describe its promotional practices, the EEOC is not restricted to any particular investigative approach, and it is not obligated to accept an employer’s description of company practices without using other available avenues to verify the accuracy of the company’s response. See, e.g., EEOC v. Sterling Jewelers, Inc., 801 F.3d 96, 103 (2d Cir. 2015) (nature and extent of an EEOC administrative investigation falls within the discretion of the EEOC; it is not for courts “to second guess the choices made by the EEOC in conducting an investigation”) (citations omitted).

Thus, even if the EEOC’s authority to investigate class-wide allegations were limited to instances when a charging party asserts that she experienced the same form of discriminatory harm as the class, Bell’s charge would satisfy this requirement. Bell alleged that Jeanswear demoted her (in favor of a man), denied her a lateral transfer (in favor of a less experienced man who was being promoted into the position), and never offered her any higher-level position than executive sales representative. A fair and plausible reading of this allegation in the context of the entire charge and the other information the Commission had when it fashioned its request for information places Bell well within the ambit of the sex discrimination that she alleges women generally experienced at Jeanswear. See B.K.B., 276 F.3d at 1100. The basis on which the district court stated that it was refusing to enforce the subpoena—that the information the EEOC requested is not relevant to Bell’s allegations of individual harm—is factually incorrect.

The court also erred to the extent its decision flowed from an erroneous belief that the scope of Bell’s EEOC charge could be re-defined by her subsequent litigation strategy in her private lawsuit. Jeanswear argued below that the scope of the EEOC’s authority to investigate Bell’s class allegation was limited by the claims Bell alleged in her private lawsuit. See II-ER.97-98, 107-111. There is some indication the district court may have accepted this view. See I-ER.9 & n.2. In other words, the court may have mistakenly believed that the absence of a failure-to-promote claim or a challenge to any systemic employment practices in Bell’s private lawsuit effectively nullified the allegation in her charge that Jeanswear did not afford her and other women opportunities to attain higher-level positions within the company.

Neither the court nor Jeanswear offers any legal support for such a proposition, and it is incorrect. Although the filing of a valid charge is what triggers the EEOC’s investigative authority, once that has happened, the charging party’s actions cannot retract or limit the investigative authority that the filed charge invested in the Commission. See Federal Express, 558 F.3d at 848-51; see also EEOC v. Union Pacific R.R. Co., 867 F.3d 843, 849 (7th Cir. 2017); cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) (“once a charge is filed, … the EEOC is in command of the process”). And even if a charging party’s lawsuit and recovery might be a consideration if the EEOC were to bring a merits suit against the employer, it is not a consideration at the administrative investigation stage. See Children’s Hosp., 719 F.2d at 1429 (agency jurisdiction to conduct an administrative investigation “is not abrogated because the party being investigated may have a valid defense to a subsequent suit by the agency”); EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir. 1993) (“a charging party’s settlement with his employer does not necessarily end the EEOC’s investigatory and enforcement powers”).

The notion that Bell’s private lawsuit could limit the EEOC’s investigation of an allegation of class-wide discrimination is undermined by this Court’s decision in Federal Express. The charging party in Federal Express, who was African American, had filed a charge alleging both personal discrimination and systemic discrimination against other African-Americans and Latinos. Id. at 850-52. He then asked the EEOC for a right-to-sue notice and joined an already-pending private class action against Federal Express. Id. at 845.

This Court noted that EEOC regulations expressly permit the EEOC to continue its investigation after issuing the charging party a right-to-sue notice when the Commission “‘determines … that it would effectuate the purpose of title VII … to further process the charge.’” 558 F.3d at 850 (quoting 29 C.F.R. § 1601.28(a)(3)). Given that the charging party’s allegations suggested “a possible policy or pattern of discrimination affecting others,” this Court “found nothing to suggest that the EEOC exceeded its authority” in continuing to investigate his allegations of discrimination against other individuals, even after he obtained a right-to-sue notice and joined a private class action. Id. (citing, inter alia, Waffle House, 534 U.S. at 291). Nothing in the decision suggests this Court believed that subsequent developments in the private class action could narrow or limit the EEOC’s authority to investigate the allegations of class-wide discrimination in the charge before it. See generally id. at 845-46, 848-54.

The Seventh Circuit likewise recently enforced an EEOC subpoena after the Commission issued the charging parties right-to-sue notices and they initiated private litigation. See Union Pacific R.R., 867 F.3d at 847-52. The Seventh Circuit concluded that the EEOC had the statutory authority to continue investigating the charges to determine whether Union Pacific’s promotional test discriminated against African-American employees. The court found it immaterial that by the time the EEOC sought enforcement of its subpoena, the charging parties had already lost their lawsuit. The court explained, “[T]he entry of judgment in the charging individual’s civil action has no more bearing on the EEOC’s authority to continue its investigation than does its issuance of a right-to-sue letter to that individual,” adding that “[t]o hold otherwise would … undercut the EEOC’s role as the master of its own case under Title VII.” Union Pacific R.R., 867 F.3d at 851 (citing Waffle House, 534 U.S. at 291).

The same should be true in this case. As this Court noted in Federal Express, “The EEOC’s investigatory authority serves a greater purpose than just investigating a charge on behalf of an individual”; it also reflects the EEOC’s “obligation to serve the public interest.” 558 F.3d at 852. The EEOC’s ability to act in furtherance of the larger public interest would be undermined if a private individual’s litigation decisions could retroactively alter the scope of the EEOC’s authority to investigate a charge alleging class-wide discrimination. Union Pacific R.R., 867 F.3d at 851. The district court’s criticism of the EEOC’s continued investigation of a charge after issuing a right-to-sue notice as “giv[ing] dead charges eternal life,” I-ER.14, reveals its misunderstanding of this aspect of the EEOC’s investigatory authority.

In sum, if EEOC authority to investigate class allegations depended on a congruence between a charging party’s claims of personal harm and her allegations of class-wide discrimination, that requirement is satisfied here. Bell’s charge alleges that Jeanswear did not offer her and a class of women opportunities to advance to higher-level positions in the company. Bell’s failure to raise this later in her private lawsuit has no bearing on the EEOC’s authority to investigate her class allegation in the charge.

2. The district court misconstrued the EEOC’s statutory authority to investigate charge allegations of class-wide discrimination.

The district court compounded its factual error by wrongly constricting the EEOC’s investigative authority based on the court’s view that the information requested had to be relevant not only to Bell’s class allegation, but also to some allegation in the charge of discriminatory harm that affected Bell personally. See, e.g., I-ER.9-10.

Contrary to the court’s assumption, the EEOC would be authorized to investigate Bell’s class allegation, even if she had not alleged in her charge that Jeanswear subjected her to the same type of discriminatory harm that she asserts women at Jeanswear experienced as a class. This is so because Bell’s class allegation satisfies the statutory and regulatory requirements for a valid charge under Title VII. Where a class allegation is stated in a charge, the court pointed to no authority, and the EEOC is aware of none, that restricts the EEOC’s investigative authority to instances where the charging party also alleges that she, herself, is a member of that class.

The Commission’s investigative authority under Title VII is triggered “[w]henever a charge is filed by or on behalf of a person claiming to be aggrieved … alleging that an employer … has engaged in an unlawful employment practice.” 42 U.S.C. § 2000e-5(b). Bell’s charge comports with this provision. In addition to her individual allegations, Bell’s charge states that her manager told her it was “great” seeing all the “young men being promoted [into] top positions,” and it alleges that Jeanswear denies women opportunities to attain top level positions at the company and that those top level positions are “male dominated,” in violation of Title VII. II-ER.221.

This allegation “raises the specter of systemic discrimination.” See Federal Express, 558 F.3d at 855. As such, this Court has held, and the district court acknowledged, that the EEOC has the “authority to investigate charges of discrimination beyond the alleged individual discrimination.” I-ER.6 (citing Federal Express, 558 F.3d at 855); see Federal Express, 558 F.3d at 855 (rejecting employer’s argument that the subpoena was overbroad because the company-wide information the EEOC sought was not relevant to the charging party’s individual allegations). Nothing in the statute, EEOC regulations, or this Court’s precedent requires the EEOC to ignore a class allegation such as this one simply because Bell did not allege, additionally, that she applied for and was denied a promotion or was deterred from applying for one.

Courts have long held that the EEOC’s authority to investigate class allegations is not restricted to instances when the charging party alleges she experienced the same discriminatory harm as the class. In Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973), for example, an African American charging party filed a charge alleging that her former employer discriminated against her by discharging her based on her race or color. The charge added: “The respondent also fails and refuses to hire Negroes and persons of Mexican ancestry,” id. at 180, an allegation that did not apply to the charging party in two respects—Joslin had hired her before discharging her, and she was not of Mexican ancestry. Based on this statement in the charge, however, the EEOC issued a subpoena seeking information about the company’s hiring practices as well as the race and ethnicity of its employees.

The district court in Joslin refused to enforce the subpoena, holding “that no investigation could be made of the hiring practices of Joslin on the complaint of [the charging party] because she had not been the object of any hiring discrimination.” Id. at 184. The Tenth Circuit reversed. Id. The court explained that “[t]he factual statement of a wrongful discharge is enough to justify an investigation of employment practices and policies, as to hiring as well as to firing.” Id. See also Circle K Corp. v. EEOC, 501 F.2d 1052, 1054 (10th Cir. 1974) (EEOC entitled to information about polygraph test administered to job applicants—even though employer never administered the polygraph test to the charging party—because charging party had alleged in her charge that the employer used the test discriminatorily). Likewise, the EEOC is statutorily authorized to investigate Bell’s allegations that there exists a glass ceiling for women at Jeanswear, regardless of whether Bell personally experienced that specific discriminatory harm.

Analogous legal principles further support enforcement of the EEOC’s subpoena. This Court and other circuits uniformly agree that the EEOC can file suit to enforce Title VII based on discrimination that was not alleged in a charge but was discovered by the EEOC during a reasonable investigation. See, e.g., McLane I, 804 F.3d at 1055; EEOC v. Occidental Life Ins. Co. of Calif., 535 F.2d 533, 540-42 (9th Cir. 1976), aff’d on other grounds Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977); EEOC v. General Electric Company, 532 F.2d 359 (4th Cir. 1976). EEOC can file litigation to redress discrimination under Title VII, however, only after completing an administrative investigation. See generally 42 U.S.C. § 2000e-5(b) & (f)(1). If, as these decisions recognize, Title VII permits the EEOC to investigate and then bring a lawsuit based on discrimination that is not alleged in the charge but discovered during the course of a reasonable investigation, see McLane I, 804 F.3d at 1055, it stands to reason that Title VII even more clearly authorizes the Commission to investigate discrimination that is alleged in the charge, regardless of whether the charging party alleges that she too experienced that particular form of discriminatory harm.

In Occidental Life, for example, the district court dismissed the EEOC’s lawsuit on the ground that the EEOC was barred from proceeding in court on claims that had not been included in the underlying charge. 535 F.2d at 540-41. This Court reversed. Agreeing with several other circuits, this Court held that the EEOC could proceed in court on any discrimination included in the Commission’s reasonable cause determination and subjected to conciliation if it was uncovered during the course of a reasonable investigation of the charge. Id. at 540-42 (citing, inter alia, General Electric, 532 F.2d at 366).

This Court noted that the discrimination in question—discrimination against unmarried women and men—did not affect the charging party, a married woman, and that she had not alleged those particular forms of discrimination in her charge; rather, the EEOC had discovered them while investigating her charge. Id. at 542. Nevertheless, this Court declined to require the EEOC to file and investigate a separate commissioner’s charge before filing a lawsuit to redress discrimination not alleged in the original charge but discovered during a reasonable investigation of that charge. Id. This Court reasoned that to do so would “champion form over substance” and generate “inexcusable waste” of resources and “intolerable delay” in remedying discrimination. Id.; cf. Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1204-05 (9th Cir. 2016) (EEOC lawsuit “may allege any discrimination ‘stated in the charge itself or discovered in the course of a reasonable investigation of that charge’”) (citations omitted).

The Fourth Circuit previously reached the same result in General Electric, 532 F.2d 359. Furthermore, the Fourth Circuit upheld such EEOC authority even though—as was true in Occidental Life—the newly-discovered discrimination impacted a protected group of which the charging party was not a member. Id. at 362-66. The court expressly rejected the district court’s view that the EEOC could proceed on the new allegation only where the charging party could have asserted it himself. Id. at 362-63, 370. The court explained that a charge of discrimination provides the EEOC with “a jurisdictional springboard” or “starting point” to investigate whether the employer is engaged in discriminatory practices, and if the EEOC’s reasonable investigation discloses “illegal practices other than those listed in the charge,” the Commission is not obligated “to cast a blind eye over such discrimination.” Id. at 364-65 (citations and quotation marks omitted).

Although Occidental Life and General Electric did not involve subpoena enforcement actions, the same reasoning has been applied in this context. See, e.g., EEOC v. Schwan’s Home Serv., 644 F.3d 742, 748 (8th Cir. 2011) (even if systemic discrimination charge were invalid, EEOC would be entitled to information requested in subpoena because investigation of individual charge of gender discrimination revealed potential systemic gender discrimination); EEOC v. Union Pac. R.R. Co., 102 F. Supp. 3d 1037, 1040-41 (E.D. Wis. 2015) (collecting cases, and enforcing EEOC subpoena seeking information relevant to a class-wide investigation, despite fact that charges alleged only individual discrimination, because “scope of an EEOC investigation also encompasses areas that reasonably grow out of the investigation”), aff’d, 867 F.3d 843 (7th Cir. 2017).

The district court here cited two cases to support its decision not to enforce the EEOC’s subpoena because the information sought was purportedly not relevant to Bell’s allegations of individual harm. See R.31 at 8-9 ((discussing EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154 (10th Cir. 2012), and EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir. 2014)). Both are in tension with this Court’s decision in Occidental Life and both are, in the EEOC’s view, incorrect. In any event, they are inapposite here. Although both courts denied enforcement on the ground that the Commission’s broad requests for information were not relevant to the individual charges under investigation, the charges in the cases involved only allegations of individual discrimination.

In Burlington Northern, the EEOC had advised the company that it was seeking information relevant to a possible pattern or practice of discrimination. There were no pattern or practice allegations in either of the two individual charges under investigation. 669 F.3d at 1157-58. The court held that, under those circumstances, nationwide data was not relevant. Id. See also id. at 1158 (distinguishing Circle K, 501 F.2d 1052, and Joslin, 483 F.2d 178, based on their particular facts). The charge in Royal Caribbean likewise contained no class allegations, and the Eleventh Circuit held that the EEOC’s request for company-wide information was not relevant to the charging party’s individual allegations of disability discrimination. 771 F.3d at 761.

Bell’s charge, in contrast to the charges in Burlington Northern and Royal Caribbean, expressly alleges class-wide discrimination. Furthermore, she alleges such discrimination with respect to the same protected group in which she is a member (women). And the discriminatory practice she alleges in her charge (lack of opportunities for women to advance into top-level positions), overlaps closely with the discriminatory harms she alleges affected her personally (demotion; replacement by a less-experienced man; denial of a transfer in favor of promoting a less-experienced man; and failure to be offered any higher-level position during her tenure). Therefore, even under the more limited standard of those cases, Bell’s charge would be a proper springboard for the Commission to investigate her class allegation that Jeanswear places men in top level positions and denies women those opportunities.

In sum, this Court and other circuits have long held that Title VII authorizes the EEOC to investigate new forms of discrimination uncovered during a reasonable investigation of a charge, even where the allegation was not stated in the charge. Under this precedent, and even under the narrower decisions relied on by the district court, the court abused its discretion in refusing to enforce a subpoena that seeks information relevant to a class allegation that is expressly included in Bell’s verified charge, regardless of whether Bell also alleged that she, personally, experienced the same discriminatory harm.

3. The district court required an improper degree of factual certainty in Bell’s charge allegations.

The district court’s decision further suggests the court refused to enforce the subpoena because it believed that Bell’s class allegation was a mere “tip” or “hunch” that is insufficient to trigger the EEOC’s investigatory and subpoena powers. See I-ER.9-10. Refusing to enforce a subpoena on this basis imposes a level of certainty or proof on charge allegations that lacks legal support and conflicts with the requirements for a valid charge established by Title VII, EEOC regulations, and Supreme Court precedent.

Title VII “prescribes only minimal requirements [for] the … content of charges.” Shell Oil Co., 466 U.S. at 67. Congress specified that charges must be “in writing” and “under oath or affirmation.” Id. at 63; 42 U.S.C. § 2000e-5(b); see 29 C.F.R. § 1601.9 (charge must be “in writing and signed and shall be verified”). Bell’s class allegation satisfies these statutory and regulatory criteria.

Congress otherwise left it to the EEOC to specify the form and content of charges and authorized the EEOC to promulgate “suitable procedural regulations.” 42 U.S.C. §§ 2000e-5(b), 2000e-12(a). The Commission has done so. See 29 C.F.R. § 1601.12(b) (“[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.”). Bell’s charge satisfies these regulatory requirements: the charge identifies Jeanswear as Bell’s former employer, and it describes generally the action or practices complained of, i.e., that Jeanswear denied Bell and other women opportunities for higher-level positions in the company. Beyond these requirements, neither Title VII nor the EEOC’s regulations require charging parties to offer some level of evidence or “proof” to support the allegations in a charge.

Title VII addresses the district court’s apparent concern about rogue allegations that are factually unsupported (see, e.g., I-ER.9-10, 41) by requiring that charges be signed and verified, a criterion that Bell’s charge satisfies here. See 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.9. The verification requirement “protect[s] employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.” Edelman v. Lynchburg Coll., 535 U.S. 106, 112-13 (2002); see also id. at 115 (charge verification provides “some degree of insurance against catchpenny claims of disgruntled, but not necessarily aggrieved, employees”). Thus, the purpose of verification “is to impress upon its taker an awareness of his duty to tell the truth.” Shell Oil, 466 U.S. at 76 n.32. It does not, however, create any obligation for a charging party “to plead facts having a prescribed evidentiary value.” Id.

The district court, by dismissing Bell’s class allegation as inadequate to trigger the EEOC’s investigatory and subpoena powers because it is a mere “tip” or “hunch,” I-ER.9-10, essentially required a level of certainty in Bell’s charge that conflicts with these standards. In particular, it conflicts with Shell Oil, where the Court rejected as “plainly inconsistent with the structure of the enforcement procedure” any notion that a charge must be so specific as to require that the person filing the charge “substantiate his allegations before the EEOC initiates an investigation.” Shell Oil, 466 U.S. at 71. This is so, the Court explained, because the purpose of an EEOC investigation “is to determine whether there is reason to believe those allegations are true.” Id.; see also id. at 72 n.26 (rejecting employer’s argument that a court, in deciding whether to enforce an EEOC subpoena, could or should “determine whether the charge … is ‘well founded’ or ‘verifiable’”).

Indeed, the Shell Oil Court noted that prior to 1972, Title VII imposed a “reasonable cause” requirement on Commissioner charges (but not on charges filed by individuals) which Congress eliminated in its 1972 amendments. The Court saw only one plausible explanation for this Congressional amendment: to clarify that Title VII held neither a Commissioner, nor an aggrieved private party, “to any prescribed level of objectively verifiable suspicion at the outset of the enforcement procedure.” Id. at 76; see also id. at 77 n.33 (rejecting implication of employer’s argument that EEOC authority to proceed with a charge investigation depended on “an objectively verifiable level of ‘reasonable suspicion’”).

The Supreme Court has continued to reject a heightened standard of certainty in EEOC charges. In McLane Co., the Court recently reiterated that “[a] district court is not to use [a subpoena] enforcement proceeding as an opportunity to test the strength of the underlying [charge]” but only to “satisfy itself that the charge is valid and the material requested is relevant to the charge.” 137 S. Ct. at 1165 (citing Shell Oil, 466 U.S. at 72 n.26; other citation and internal quotations omitted); see also Univ. of Penn. v. EEOC, 493 U.S. at 191 (court to determine only if charge is valid and material sought is relevant, not whether the charge “is ‘well founded’ or ‘verifiable’”) (citing Shell Oil, 466 U.S. at 72 n.26).

In refusing to enforce the EEOC’s subpoena because it considered Bell’s class allegation to be nothing more than a “tip” or “hunch,” the court distorted Title VII’s charge-filing requirements by imposing, at the initial charge-filing stage, the type of evidentiary certainty that an EEOC’s investigation is intended to ferret out. The court’s legal error constitutes an abuse of its discretion.

D. The district court abused its discretion by alternatively denying full enforcement based on “undue burden.”

The district court abused its discretion when it ruled, in the alternative, that if it erred “in not enforcing the subpoena because it exceeds relevance,” it would compel compliance only partially, on the ground that full compliance would impose an undue burden. R.31 at 14. “Undue burden” is one of the bases on which an employer can defeat the enforcement of an EEOC subpoena, in full or in part. Children’s Hosp., 719 F.2d at 1428 (citations omitted).[7] The district court, however, applied the wrong standard; under the correct standard, Jeanswear plainly failed to show undue burden.

The basis for an employer’s challenge to an EEOC administrative subpoena as unduly burdensome comes from case law addressing administrative subpoenas issued by federal agencies generally. See id. at 1428-29. Pursuant to this body of law, an employer resisting an EEOC subpoena based on undue burden must prove, not just allege, that the EEOC’s inquiry is unduly burdensome. See id.; see also FDIC v. Garner, 126 F.3d 1138, 1145-46 (9th Cir. 1997) (party objecting to FDIC administrative subpoena must provide support for its contention that compliance with subpoena would impose an undue burden). This requires more than a showing “that compliance would be inconvenient and involve some expense.” See Citicorp Diners Club, 985 F.2d at 1040; see also NLRB v. Vista Del Sol Health Servs., Inc., 40 F. Supp. 3d 1238, 1256, 1265-66 (C.D. Cal. 2014) (same). The objecting party must prove both what kind and how much negative effect will ensue if it complies with the subpoena—a showing that is “difficult to meet.” EEOC v. Aaron Bros. Inc., 620 F. Supp. 2d 1102, 1106 (C.D. Cal. 2009) (citing EEOC v. Maryland Cup Corp., 785 F.2d 471, 477 (4th Cir. 1986); EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002)).

The district court here applied the wrong standard in ruling that Jeanswear demonstrated that full compliance would be unduly burdensome. The court stated that “[t]he Ninth Circuit has not specifically addressed how to measure undue burden on the respondent,” I‑ER.11, and then proceeded to apply a test used by two circuits prior to the Supreme Court’s decision in McLane Co.. That outdated test—a minority approach even before McLane Co.—requires a district court to rule first on relevance and then consider relevance a second time in the “undue burden” inquiry by “weigh[ing] the likely relevance of the requested material to the investigation against the burden to [the employer] of producing the material.” See I-ER.11 (citing EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994); Royal Caribbean, 771 F.3d 757 (11th Cir.)); see also United Air Lines, 287 F.3d at 653-54 (7th Cir.; applying this double-relevance test and citing Ford Motor).

In contrast to the Sixth and Eleventh Circuits,[8] the majority of courts do not consider relevance a second time when assessing undue burden. Instead, they look at the impact of enforcing the federal agency’s administrative subpoena on the subpoenaed entity. Under that test, an employer would have to “show that producing the documents would seriously disrupt its normal business operations,” considering, as “an important factor,” “the cost of production ‘in light of the company’s normal operating costs.’” EEOC v. Randstad, 685 F.3d 433, 451-52 (4th Cir. 2012) (citations omitted). In addition to the Fourth Circuit, five other circuits apply this test. See FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977) (en banc) (FTC subpoena properly enforced “unless compliance threatens to unduly disrupt or seriously hinder normal operations of a business”); NLRB v. Am. Med. Response, Inc., 438 F.3d 188, 193 n.4 (2d Cir. 2006) (applying same standard in NLRB subpoena enforcement action); United States v. Chevron USA, Inc., 186 F.3d 644, 649-50 (5th Cir. 1999) (applying same standard in Department of Interior subpoena enforcement action); EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 645, 648-49 (7th Cir. 1995) (enforcing EEOC subpoena because employer failed to show “compliance would threaten the normal operation of [its] business”);[9] Citicorp Diners Club, 985 F.2d at 1040 (10th Cir.; enforcing EEOC subpoena because employer failed to show “compliance would unduly disrupt and seriously hinder normal operations of the business”).

And district courts within this circuit and elsewhere routinely have applied the “unduly disrupt” standard when addressing an employer’s undue burden challenge to an agency subpoena. See Aaron Bros., 620 F. Supp. 2d at 1106; see also, e.g., Fed. Hous. Fin. Agency v. Saticoy Bay, LLC, Civ. No. 17-cv-913, 2017 WL 3813908 (D. Nev. Aug. 31, 2017), adopting magistrate’s recommendation, 2017 WL 3447796, at *1 (D. Nev. Aug. 10, 2017) (citing Texaco, 555 F.2d at 882); Vista Del Sol Health, 40 F. Supp. 3d at 1255-56 (citing Citicorp Diners Club, 985 F.2d at 1040); EEOC v. Ayala AG Servs., Civ. No. 1:13-mc-32, 2013 WL 5670901, at *5 (E.D. Cal. Oct. 15, 2013); EEOC v. McCormick & Schmick’s, Civ. No. 07-cv-80065, 2007 WL 1430004, at *7 (N.D. Cal. May 15, 2007); NLRB v. Champagne Drywall, Inc., 502 F. Supp. 2d 179, 181-82 (D. Mass. 2007).

The Supreme Court has now confirmed that a district court should not revisit relevance a second time in addressing undue burden. As the Supreme Court explained in McLane Co., the relevance inquiry “requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation—an analysis ‘variable in relation to the nature, purposes and scope of the inquiry.’” 137 S. Ct. at 1167 (quotation omitted). But once relevance is established, it no longer has a place in the undue burden inquiry: “[T]he decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them.” Id. at 1168. The district court’s invocation of the double-relevance test thus conflicts with the Supreme Court’s ruling in McLane Co.

The double-relevance test also clashes with this Court’s allocation of the burden of proof in subpoena enforcement actions. Factoring relevance into the undue burden analysis improperly shifts a portion of the burden of proof for this stage of the proceedings from the employer back to the EEOC to address relevance a second time. It would require the EEOC, after having shown that the information it seeks is relevant to its investigation, to show, in addition, just how relevant or important the evidence is.

The district court’s undue burden analysis here demonstrates the danger of such a double-relevance test. At the hearing, the court pressed the EEOC to explain exactly what the Commission would do with the information, if it received everything it requested. I-ER.52-56. And the court proposed alternate ways for the Commission to pursue its investigation. I-ER.59-60. Then, in its decision, the court minimized the value of the requested information in part because the EEOC had not yet identified a specific discriminatory practice that might emerge from the agency’s analysis of data that it has not yet received. I‑ER.11. The court also speculated that the incremental value to the EEOC’s investigation between partial compliance and full compliance is “nil.” Id.

The court erred by making its own assessment of the value of the information the EEOC requested. Congress granted the EEOC—not the court—the discretion to decide how to conduct investigations. Cf. Sterling Jewelers, 801 F.3d at 101 (“‘[L]imited [court] review respects the expansive discretion that Title VII gives to the EEOC’ in investigating discrimination claims”) (quoting Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1653 (2015)); see also Univ. of Pa., 493 U.S. at 188, 193-94 (holding that the EEOC need not “demonstrate a ‘specific reason for disclosure,’ … beyond a showing of relevance,” and rejecting “necessity” test for EEOC access to information during administrative investigation) (internal citation omitted); McLane I, 804 F.3d at 1057 (same). As the court’s decision here illustrates, the double-relevance test places a court in the untenable position of attempting to gauge how relevant or necessary specific information would be to a particular EEOC investigation, thus moving the court from its gate-keeper role to a more active—but improper—role in fashioning the contours of the EEOC’s administrative investigation.

Applying the correct standard, Jeanswear’s undue burden objection fails. As the district court acknowledged, Jeanswear did not state whether compliance would seriously disrupt or hinder its normal business operations. I‑ER.12. And although Jeanswear represented to the court that complying with the EEOC’s request would take one employee five weeks of doing nothing else, it never explained what tasks that employee would be foregoing while compiling the requested information. See I-ER.38 (at 24:13-15). Nor did Jeanswear offer any information about the company’s overall operating costs against which to compare its projected cost of compliance (this employee’s salary for five weeks). I-ER.12.

Furthermore, the court based its determination on the wrong version of the EEOC’s request. The court considered the impact of producing the requested information for the 600 supervisors, managers, and executives that Jeanswear said fell within the EEOC’s original request (I-ER.12), ignoring the modification that the EEOC had shared with Jeanswear before the hearing and then repeated at the hearing. I-ER.42-45. Jeanswear acknowledged the modification and told the court that it would reduce its estimated search time from eight weeks to five. I-ER.44-45. The court ignored this latter representation when it found undue burden based on Jeanswear’s original cost estimate. I-ER.12.

The EEOC also advised Jeanswear and the court that it no longer sought information on supervisors’, managers’, and executives’ employment history predating January 2012. See I-ER.13. Jeanswear had represented to the court that uncovering information before January 2012 would be difficult and time-consuming. The court acknowledged this modification in its decision. I-ER.13. And the court noted that Jeanswear had not explained how much that change would ease Jeanswear’s difficulty or expense of compliance. Id. The court nevertheless found undue burden, despite this critical gap in information that Jeanswear had the burden not just to proffer, but to prove. I‑ER.12-14.

Finally, Jeanswear’s estimate that it would take one person five weeks to produce the requested information is highly suspect in any event. The EEOC submitted the declaration of an EEOC employee responsible for data processing who attested that given the HR information systems that Jeanswear said it used, the information the EEOC seeks should be readily obtainable through a search of Jeanswear’s computer database, with minimal need to resort to paper records or people’s memories. See discussion supra at pp.10-11. Jeanswear never disputed this EEOC evidence. Jeanswear did not seek to respond, despite the passage of five weeks between the EEOC’s submission of the evidence to the court on August 22, 2016 (II-ER.94-95), and the hearing the court held on September 30, 2016 (I‑ER.15), and despite the parties’ submission of supplemental briefs thereafter on a different question. See II-ER.72-80.

In sum, the court abused its discretion by applying the wrong legal standard. The court further abused its discretion because it found undue burden despite Jeanswear’s failure to provide any evidence of how the projected cost of compliance compares to Jeanswear’s “normal operating costs,” Randstad, 685 F.3d at 451, or how (if at all) compliance would “seriously hinder normal operations of the business.” Citicorp Diners Club, 985 F.2d at 1040. The court had no evidentiary basis on which to conclude that full compliance with the EEOC’s request would unduly burden Jeanswear, and the decision should be reversed.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s order and remand this matter with directions to the district court to enforce the Commission’s subpoena.

STATEMENT OF RELATED CASES

The undersigned knows of no related cases pending before this Court.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

SUSAN R. OXFORD

BARBARA L. SLOAN

Attorneys

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 12,558 words, 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 Times New Roman 14 point.

s/ Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507(202) 663-4791

Dated: December 11, 2017

Addendum

[1] Bell thereafter amended her private lawsuit to add Title VII and ADEA discrimination claims to her original EPA claims of unequal pay and retaliation. II-ER.143-154.

[2] Before the district court, Jeanswear objected to age (in paragraph c) and reason for termination (in paragraph g). See I-ER.7. The EEOC no longer seeks either.

[3] The EEOC’s application for enforcement relied on its statutory authority under Title VII and the ADEA. II-ER.197. Because the EEOC no longer seeks age information, it relies only on Title VII in this appeal.

[4] The declaration also discussed a third HR information system that Jeanswear had used up until 2002. II-ER.128, 130. After the EEOC agreed to limit its request to positions held on or after January 1, 2012, II-ER.91, that system ceased to be relevant to this matter, as the district court acknowledged. See I-ER.13.

[5] The jury verdict occurred on March 31, 2017, not on “October 31, 2017,” as the district court mistakenly stated in its April 6, 2017, order. II-ER.71.

[6] Jeanswear challenged the relevance of “age” and “reason for termination” to Bell’s allegations that she and other women lacked opportunities to advance. See I-ER.7. The court’s opinion suggests it agreed with respect to reason for termination (I-ER.10), but it did not indicate it was premising its decision on either request. See generally I-ER.7-10. The EEOC no longer seeks either. See p.8 n.2, supra. Jeanswear also objected that not all Jeanswear supervisors, managers, and executive employees should be considered “top level” positions. See I-ER.7. The district court appears to have rejected this objection, stating that “employment context is relevant to a charge of employment discrimination” and discussing a Third Circuit case that illustrates this point. See I-ER.7-8 (discussing EEOC v. Kronos Inc., 620 F.3d 287, 297-98 (3d Cir. 2010), and another case).

[7] A party can also resist an EEOC subpoena as overbroad. Children’s Hosp., 719 F.2d at 1428. Below, Jeanswear argued that the EEOC’s information request was overbroad for an investigation of Bell’s individual claims, but it never argued the requested information was overbroad for an investigation of Bell’s class allegation. II-ER.114-115. After Bell’s trial ended, the EEOC ceased investigating Bell’s individual allegations and informed the district court that it continued to seek the information solely to investigate the allegation of class-wide discrimination in Bell’s charge. II-ER.69-70. Jeanswear did not thereafter reassert overbreadth.

[8] As discussed infra at p.50 n.9, the United Air Lines decision is an aberration within the Seventh Circuit.

[9] The Seventh Circuit’s reference in United Air Lines to the Ford Motor double-relevance test appears to be an anomaly within that court. Seventh Circuit decisions before and after United Air Lines otherwise align with the “unduly disrupt” standard. See, e.g., EEOC v. Aerotek, Inc., 815 F.3d 328, 334 (7th Cir. 2016) (employer must comply with EEOC subpoena unless it “would threaten the normal operation of its business”); Quad/Graphics, Inc., 63 F.3d at 645 (same); EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir. 1981) (same).