The Equal Employment Opportunity Commission argues in this appeal that the district court abused its discretion when it refused to enforce the EEOC’s administrative subpoena against VF Jeanswear. The EEOC issued this subpoena to investigate allegations that Lori Bell included in an EEOC charge alleging, inter alia, that Jeanswear deprived her and other women of opportunities to advance. The Commission seeks information about the supervisors, managers, and executives in specified parts of the company to ascertain whether this allegation is true.

The court ruled that the information EEOC seeks is not relevant to Bell’s charge and, alternatively, that full compliance would unduly burden Jeanswear. In defending this ruling, Jeanswear concedes that “the EEOC has the ‘authority to investigate charges of discrimination beyond the alleged individual discrimination’ where the charge ‘raises the specter of systemic discrimination.’” Jeanswear-Brf at 41 (citation omitted); see also EEOC v. Federal Express Corp., 558 F.3d 842, 855 (9th Cir. 2009)). Bell’s charge, however, raises more than the specter of systemic discrimination. Her charge alleges it outright, stating: “Females are not afforded the opportunity in top level positions. … I believe I and a class of females have been discriminated against because of sex (female), in violation of Title VII.” II‑ER.221. Thus, Bell’s charge, on its face, provides the EEOC with the authority to investigate whether Bell’s “glass-ceiling” allegation is true. EEOC-Brf at 22-23.

Jeanswear acknowledges that the standard for relevance in the context of an EEOC subpoena is broader than at trial. Jeanswear-Brf at 27. And Jeanswear implicitly concedes, by not arguing otherwise, that the requested information would be relevant to an investigation into whether Jeanswear discriminates against women when it fills supervisory, managerial, and executive-level positions. That should have been the beginning and the end of this inquiry. Instead, Jeanswear offers an array of reasons why, in its view, Bell’s charge is not a proper basis for this investigation, id. at 26-61, and why full compliance with the subpoena would impose an undue burden, id. at 61-67. Jeanswear’s arguments—laced with hyperbole, and based on strained interpretations of Bell’s charge and misconceptions of the governing legal principles—fail to demonstrate that the district court acted within its discretion in denying the subpoena.

ARGUMENT

A district court abuses its discretion when it refuses to enforce an EEOC subpoena based on an incorrect view of the governing legal principles, clearly erroneous findings of fact, or an improper application of the law to the facts. See EEOC v. McLane Co., 857 F.3d 813, 815 (9th Cir. 2017); EEOC v. Kronos Inc., 620 F.3d 287, 295-96 (3d Cir. 2010). Because the district court’s refusal to enforce this EEOC subpoena was grounded in the court’s legal errors and its misreading of Bell’s charge, it warrants reversal.[1]

A. Jeanswear fails to counter EEOC’s arguments that the subpoena requests information relevant to Bell’s charge.

Jeanswear does not dispute the statutory basis and legal principles under which the EEOC seeks the requested information. Congress tasked the EEOC with enforcing Title VII, and the EEOC accomplishes this task, in part, by investigating allegations of workplace discrimination. See 42 U.S.C. § 2000e-5(b); McLane Co. v. EEOC, 137 S. Ct. 1159, 1164 (2017). The EEOC’s authority to investigate discrimination is “triggered by the filing of a specific sworn charge of discrimination” alleging a Title VII violation. Id. Thereafter, the content of the charge (at least initially) defines the scope of the investigation. The district court understood this, stating at the hearing below: “The linchpin here is the charge. That is the source of the Commission’s investigatory authority.” I-ER.41.

Title VII grants the EEOC access to any evidence, from any person, 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) (emphasis added). This limitation “is not especially constraining.” EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). Indeed, relevance, in this context, “sweeps more broadly than it would at trial.” McLane, 857 F.3d at 815.

Jeanswear quotes McLane, but then characterizes the relevance standard as “a significant restraint” on the EEOC’s powers. Jeanswear-Brf at 27. Jeanswear’s characterization is incorrect. As the Supreme Court first recognized in Shell Oil and reaffirmed last year in McLane, since Title VII’s inception “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.” Shell Oil, 466 U.S. at 68-69; McLane, 137 S. Ct. at 1165. This Court has likewise described the standard as “a broad right of access to relevant evidence” intended “[t]o enable the Commission to make informed decisions at each stage of the enforcement process.” Federal Express, 558 F.3d at 849 (emphasis added; citation and internal quotations eliminated).

Nowhere in its Answer Brief does Jeanswear dispute that Bell’s charge includes words alleging class-wide discrimination against women in attaining top-level positions. In fact, Jeanswear’s quote of Bell’s charge includes her allegation that

Females are not afforded the opportunity [to attain] top level positions. Top level positions are male dominated. … I believe I and a class of females have been discriminated against because of sex (female) in violation of Title VII.

Jeanswear-Brf at 11-12.

Nor does Jeanswear dispute that the requested information would be relevant to an investigation of whether Jeanswear discriminates against women as a class when it fills “top level positions,” i.e., supervisors, managers, and executives. Jeanswear plainly recognizes that Shell Oil’s broad relevance standard would make any such argument futile. Instead, Jeanswear offers an array of reasons why the words in Bell’s charge do not authorize the EEOC to conduct its investigation. None of these reasons withstand scrutiny.

First, Jeanswear incorrectly argues that Title VII limits EEOC investigations to discriminatory conduct that aggrieves the charging party. Jeanswear-Brf at 50-53. Second, building on that flawed legal premise, Jeanswear argues that Bell’s charge alleges only “three potentially unlawful acts or practices” that “aggrieved her”—demotion, harassment, and unequal pay (id. at 28-32, 36, 44-45). Jeanswear acknowledges that Bell’s charge alleges that Jeanswear never offered her any higher-level position than account executive, but argues that this allegation does not constitute a claim by Bell that she personally experienced the glass ceiling that affects women as a class. Id. at 29-40, 51. Third, Jeanswear argues that Bell’s glass-ceiling allegation is infirm because it fails to allege a specific policy or practice by which Jeanswear deprives women of opportunities to attain top-level positions. Id. at 44-53. Finally, Jeanswear disputes the EEOC’s contention that when the district court discounted Bell’s class allegation as a mere tip or hunch, it was requiring a level of certainty for her charge allegation that Title VII does not demand. Id. at 57-60. None of these arguments has merit.

1. Nothing in Title VII limits EEOC’s investigative authority to only those discriminatory acts that the charging party experienced.

Title VII permits an “aggrieved individual,” or someone filing on behalf of an aggrieved individual, to file a charge alleging a violation of the statute. 42 U.S.C. § 2000e-5(b). Jeanswear, however, premises its arguments on the erroneous view that when an individual files a charge, Title VII limits the EEOC’s investigative authority to discriminatory conduct that the charging party experienced herself. Jeanswear-Brf at 26-36, 40-45, 50-53. Jeanswear cites no statutory provision or judicial precedent that supports this view, and it is incorrect.

The EEOC’s authority or jurisdiction under Title VII to investigate allegations of class-wide discrimination does not depend on whether the charging party falls within the class allegation’s scope; the class allegation just needs to be stated in a valid charge. See discussion in EEOC-Brf at 35-43. When (as here) the class allegation is so stated, the EEOC’s investigation of that allegation is not “a roving search through an employer’s records for evidence of potential wrongdoing,” as Jeanswear contends. Jeanswear-Brf at 22-23. Rather, the EEOC’s investigation is simply the Commission’s compliance with its most basic directive from Congress: “Whenever 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, … the Commission … shall make an investigation thereof.” 42 U.S.C. § 2000e-5(b) (emphasis added).

Jeanswear points to no statutory provision that supports its argument. Instead, Jeanswear rewrites Title VII to impose an extra-statutory requirement. Citing the same provision quoted above, Jeanswear argues: “An EEOC charge must identify an ‘unlawful employment practice’ and be filed by a person ‘claiming to be aggrieved’ by that practice.” Jeanswear-Brf at 44 (emphasis added); see also id. at 50. Jeanswear, however, adds those last three words to the statute. The language enacted by Congress requires only that a charge be filed by an aggrieved individual and identify an alleged unlawful practice.

This view is reinforced by the statutory provision governing EEOC’s access to information during an investigation. Title VII gives the EEOC “access to … 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). Nothing in this provision limits EEOC investigations to unlawful employment practices the charging party personally experienced.

Jeanswear likewise identifies no judicial precedent that can support its constrained view of EEOC’s authority. Jeanswear fails to address the two cases, cited in the EEOC’s opening brief, where the Tenth Circuit enforced EEOC subpoenas seeking information relevant to a charge allegation of discrimination that did not affect the charging party. See EEOC-Brf at 36-37 (discussing Circle K Corp. v. EEOC, 501 F.2d 1052 (10th Cir. 1974); Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973)).

The four cases that Jeanswear suggests support its argument, see Jeanswear-Brf at 53-57, 60-61, are all inapposite. In two, the charge contained no class allegation. See EEOC v. Tricore Reference Labs., 849 F.3d 929, 934-35 (10th Cir. 2017) (holding that EEOC’s request for information on all employees with a disability and all pregnant employees who had requested accommodation was not relevant to individual charge); EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 761 (11th Cir. 2014) (holding that EEOC’s request for company-wide data on any employee with any medical condition was not relevant to charging party’s allegation of individual disability discrimination). In the two other cases Jeanswear cites, the court required the employer to disclose company-wide information that related to the charging party’s allegations, but denied enforcement for information relevant to a different basis of discrimination not alleged in the charge. See Kronos, 620 F.3d at 297-302 (denying race-based information where charge alleged only disability discrimination); EEOC v. S. Farm Bureau Cas. Ins. Co., 271 F.3d 209, 210-11 (5th Cir. 2001) (denying class-wide information about gender where charge alleged only class-wide race discrimination).

In contrast to these cases, Bell’s charge expressly alleges that Jeanswear fails to afford opportunities for women to attain top-level positions. Nothing in Title VII—and no legal precedent of which the EEOC is aware—bars the EEOC from investigating this alleged unlawful practice, regardless of whether Bell claims to be aggrieved by the same discriminatory harm. See EEOC-Brf at 35-43.

Jeanswear concedes that “the EEOC does not have to ignore evidence of previously unknown discrimination that ‘arises out of the reasonable investigation of the charge filed.’” Jeanswear-Brf at 43. This concession undermines its restrictive view of EEOC’s investigative authority. Since, as Jeanswear concedes, the EEOC can investigate and file a lawsuit to address discrimination not alleged in a charge but uncovered in an investigation, it stands to reason Title VII even more clearly authorizes the EEOC to investigate discrimination that is alleged in the charge. See EEOC-Brf at 38-41.

2. Even if Title VII limited EEOC’s investigative authority to discrimination the charging party suffered, Bell’s charge alleges Jeanswear did not offer her “any higher level position” than account executive.

The EEOC’s opening brief argued the district court mischaracterized Bell’s charge by ignoring or dismissing her own glass-ceiling allegation. Read properly, Bell’s charge would authorize this investigation, even if Title VII did limit the EEOC’s investigative authority to discrimination the charging party suffered—which it does not—because Bell’s charge alleges that Jeanswear failed to offer her any higher-level position than account executive. EEOC-Brf at 27-34.

Jeanswear acknowledges the court omits this allegation from its analysis, identifying the crux of the court’s ruling as its conclusion that “the EEOC’s ‘companywide search for systemic discrimination in promotions to top positions is too removed from Bell’s charge of one-off demotion from a sales job to be relevant in a practical sense.’” Jeanswear-Brf at 53 (quoting I-ER.10); see also id. at 26. Jeanswear argues that this constitutes a judicial “finding” that the EEOC “cannot establish … was an abuse of discretion.” Id. at 53; see also id. at 42. To the contrary, because the court essentially rewrote Bell’s charge to remove her glass-ceiling allegation, the court abused its discretion.

Throughout its Answer Brief, Jeanswear repeats the district court’s characterization of Bell’s charge as alleging only “three potentially unlawful acts or practices” that “aggrieved her”—demotion, harassment, and unequal pay. Jeanswear-Brf at 28-29, 31-32, 36, 44-45. But Jeanswear concedes Bell’s charge contains a fourth allegation, alleging that Jeanswear fails to afford women opportunities to attain top-level positions. See supra at 4-5. And Jeanswear acknowledges that Bell’s charge also states: “During my tenure with [Jeanswear] I was not offered any higher level position than” account executive. Jeanswear-Brf at 51 (quoting II-ER.221). In other words, Bell’s charge extends her glass-ceiling allegation (that Jeanswear failed to afford opportunities for women to attain “top level positions”) to her own experience. See EEOC-Brf at 25-34.

Jeanswear’s various attempts to make this language disappear or to render it meaningless are all unavailing. Jeanswear points first to the district court’s statement that Bell “never held, sought, or was refused a management or ‘top’ position.” I-ER.9; see also I-ER.6; see Jeanswear-Brf at 30, 44, 50-53. According to Jeanswear, Bell’s purported lack of supervisory or managerial experience means Bell, herself, was never subjected to the glass ceiling she alleges other women experienced. Jeanswear-Brf at 50-51, 53. This argument is illogical.

Whether Bell was ever a manager before she filed her EEOC charge is immaterial to her claim that Jeanswear deprived her of opportunities to advance. If anything, it lends weight to her allegation that Jeanswear never offered her advancement beyond account executive. Her charge alleges that Jeanswear failed to afford her and other women opportunities to attain top level jobs, not that she or any other woman experienced discrimination while she (or they) held such a position.

In any event, Bell was a manager. In the decade or so before Jeanswear promoted Bell to account executive in the sales division, she worked as both a manager and a supervisor in a different Jeanswear division. See II-ER.161-65.[2] The fact that Bell worked for Jeanswear as a manager and supervisor in a different division before Jeanswear promoted her to account executive is immaterial to her allegation that Jeanswear never offered her any further advancement thereafter. Nevertheless, the district court’s misstatement is also clearly erroneous, and Jeanswear’s repeated reliance on it is incorrect and troubling.

Likewise unpersuasive are Jeanswear’s arguments based on extrapolations from words used in documents from Bell’s private lawsuit or evidence presented at her trial. Jeanswear argues that Bell used the phrase “top positions” in her litigation to refer to the account executive position she held before she was demoted, not higher-level positions within the company. Jeanswear-Brf at 32-35. Jeanswear relies on language in Bell’s pro se Equal Pay Act complaint, id. at 33-34 (see II-ER.135-138); Bell’s deposition testimony from the same lawsuit, given months after she filed her EEOC charge, id. at 33 (see II-ER.174-75); and summary judgement evidence from Bell’s lawsuit that purportedly shows there was at least one other account executive whose position was higher than Bell’s. Id. at 51-53.

Jeanswear’s textual argument is implausible on its face. Bell’s charge alleges women experience discrimination in opportunities to attain “top level positions” immediately after it states that Jeanswear never offered her any higher‑level position than account executive. It would make no sense for Bell to complain that Jeanswear did not offer her an opportunity to advance above account executive, and then follow that allegation with two statements equating “top level positions” with the position she already held. The EEOC’s interpretation, in contrast, reads these sentences in a way that makes sense: when Bell said “top level positions,” she meant positions higher in Jeanswear’s organizational structure than the sales position she had already attained.

More importantly, Jeanswear offers no legal precedent for the remarkable notion that the EEOC would need to consult, or could be bound by, these types of extraneous sources to determine the meaning of the words contained in an EEOC charge. Given that Congress placed responsibility for conducting investigations in the hands of the EEOC, it cannot have intended that the subject of an investigation would be allowed to dictate to the Commission what the charge means based on post-charge events.

In any event, Jeanswear did not make these strained textual arguments (Jeanswear-Brf at 32-35, 51-53) below. Consequently, they formed no part of the district court’s reasoning and are waived on appeal. George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013) (issues insufficiently raised below are waived on appeal).

Finally, Jeanswear dismisses as unfounded the EEOC’s concern that the district court improperly based its decision on Bell’s trial strategy. Jeanswear-Brf at 36-40. Jeanswear argued strenuously below that Bell’s private lawsuit should factor into the court’s decision. See, e.g., I-ER.31-32 (Tr.17:11-18:8); II-ER.97, 100-101, 107-08. On appeal, Jeanswear now argues, first, that Bell’s litigation claims did not affect the court’s decision, and, second, that there would be nothing improper if they had because a court evaluating a subpoena’s relevance may consider “the entire record.” Jeanswear-Brf at 36-40.

Jeanswear is incorrect on all counts. The court’s decision reflects both that Bell’s lawsuit improperly factored into the court’s interpretation of Bell’s charge and that the court relied on evidence outside the record. I-ER.9 & n.2.

Briefing in this subpoena enforcement matter concluded in the fall of 2016. See II-ER.316 (district court docket entry #28). Bell tried her private suit before a different district court judge four months later. Thereafter, no party filed anything with the court here concerning Bell’s trial evidence. Yet the court’s decision confirms it took this trial evidence into account: it declined to enforce the EEOC’s subpoena based on the erroneous conclusion that Bell’s charge alleged only “a one-off discriminatory demotion and unequal pay,” I-ER.9-10, and it supported this conclusion by referencing evidence from Bell’s trial that purportedly showed Bell’s lawsuit “had nothing to do with systemic employment practices, management jobs, or promotion.” I-ER.9 n.2. Thus, the decision itself contradicts Jeanswear’s assertion that the court did not rely on evidence from Bell’s trial, which falls outside the record in this matter.

Jeanswear argues that if it was proper for the EEOC to consider Bell’s resignation letter in interpreting her charge, it was also proper for the district court to consider what occurred in Bell’s private lawsuit. Jeanswear-Brf at 39. It was not. Bell’s resignation letter is a document that Jeanswear supplied to the EEOC investigator in response to Bell’s charge. See EEOC-Brf at 29. The EEOC thus did not go outside the administrative record when it consulted Bell’s resignation letter. Rather, it did exactly what an administrative agency with investigative powers should do before fashioning a request for information from the employer: it began “investigating” the charge by reviewing the documents it had at hand, including those provided by the employer.

3. Bell did not need to identify a specific discriminatory act or practice causing women’s exclusion from “top level positions.”

Jeanswear misunderstands Title VII’s prohibitions and the statutory requirements for a charge when it argues that the EEOC’s subpoena should not be enforced because Bell’s charge “identifies no act or practice affecting supervisors, managers, and executives.” Jeanswear-Brf at 45; see also id. at 44-49. Title VII bars employers from making employment decisions because of an individual’s sex, including failing or refusing to hire or promote an individual because they are female. 42 U.S.C. § 2000e-2(a)(1). Bell’s charge identifies such a discriminatory act or practice: Jeanswear deprived women of opportunities to be hired or promoted into “top level positions.”

Jeanswear mistakenly argues that, absent more specificity, Bell’s charge alleges nothing more than a “statistical disparity” or “gender imbalance,” insufficient to authorize an EEOC investigation. Jeanswear-Brf at 45-49. This argument fails. To be sure, some charges do point to a specific discriminatory test or standard causing the alleged violation, like the physical capability strength test in McLane, 857 F.3d at 815, or the cognitive ability test in Federal Express, 558 F.3d at 845. Other charges, however, merely allege discrimination against a protected group, without indicating how the discrimination is accomplished. See, e.g., EEOC v. Schwan’s Home Serv., 644 F.3d 742 (8th Cir. 2011) (enforcing the EEOC’s subpoena to investigate charge of individual and systemic discrimination alleging Schwan’s excluded women from the position of general manager). Those more general charges are enough, as they satisfy Title VII’s minimal requirements for a charge. 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.12(b); see also EEOC-Brf at 43-44. Bell’s charge likewise satisfies these requirements.

Because Jeanswear has refused to allow the EEOC to proceed with this part of its investigation, the EEOC does not yet know what process or procedures Jeanswear uses to fill upper-level positions in the company. For example, the EEOC does not know if Jeanswear posts higher-level positions internally and/or externally to allow interested individuals to apply for them formally, or if it uses a “tap-on-the-shoulder” process to fill those positions. If the latter were the case, however, then denial of an application for promotion would never occur. Such a process would simply shut women out of the process for filling upper-level positions by behind-the-scenes decisions, and it would not matter whether Bell ever formally applied for a promotion or Jeanswear ever formally denied her one.

4. The district court improperly considered the strength of Bell’s claims.

The EEOC’s opening brief argued that the court’s refusal to enforce the subpoena reflected the court’s erroneous belief that Bell’s class allegation was merely a “tip” or “hunch,” insufficient to trigger the EEOC’s investigatory authority. EEOC-Brf at 43-46. Jeanswear responds by accusing the EEOC of mischaracterizing the record, arguing that the court was merely responding to a statement the EEOC’s trial attorney made at the hearing. Jeanswear-Brf at 58-59. This is incorrect.

The court’s reference to “tips” and “hunches” (I-ER.9-10) speaks for itself. The court reiterated its mischaracterization of Bell’s charge as alleging “a one-off discriminatory demotion and unequal pay.” I‑ER.9. It then acknowledged that Bell also alleges “females are not afforded the opportunity of top positions.” Id. The court dismissed this passage, stating that, coming from Bell, it “is just a tip not bearing on [Bell’s] own experience or detriment.” I-ER.10. The court connected this to the EEOC’s subpoena, stating that the EEOC failed to “demonstrate that its investigative and subpoena powers are triggered by tips or hunches.” The court concluded, on that basis, that the requested information did not bear on the portion of Bell’s charge that the court thought the EEOC could investigate—her claim of unequal pay. I‑ER.9-10.

Thus, the district court plainly based its refusal to enforce the EEOC’s subpoena on its belief that Bell’s class allegation was just a “tip” insufficient to trigger the EEOC’s investigatory and subpoena powers. The EEOC explained in its opening brief that this imposes a level of certitude on charge allegations that Title VII does not require and the Supreme Court has expressly rejected. EEOC-Brf at 43-46.

The court’s erroneous view did not come from anything the EEOC said at the hearing. The portion of the hearing transcript that Jeanswear quotes (Jeanswear-Brf at 58 (quoting I-ER.47)) addressed the EEOC’s potential uses of the requested information, not the EEOC’s authority to seek it. It is embedded, however, in an exchange that began when the court asked the EEOC: “Is it a ‘valid’ charge for someone to make an accusation of discrimination that does not affect them?” I‑ER.41 (Tr.27:13-15). EEOC responded that Bell’s charge alleges that Jeanswear had a glass ceiling and that she believed she had been subjected to it over the years, even though she never requested a promotion. I‑ER.45 (Tr.31:8-16).

Unsatisfied, the court repeated the question, I-ER.45 (Tr.31:17-20), I-ER.47 (Tr.33:5-13), and the parties addressed it thereafter in supplemental briefing. The EEOC explained: “[A] charge filed with the EEOC need not demonstrate personal harm as to each and every allegation in order to provide the EEOC with jurisdiction to investigate all of the charge’s allegations. … [and] to have jurisdiction to enforce an administrative subpoena.” II-ER.77-80. After Bell’s jury trial ended, the EEOC advised the court that it was continuing to seek enforcement of the subpoena to investigate Bell’s “class-wide allegations of discrimination.” II‑ER.69-70.

Thus, if the court was confused at the hearing about the EEOC’s position, the EEOC’s supplemental briefing clarified it. The court’s conclusion that Bell’s class glass-ceiling allegation is just a “tip” that cannot trigger EEOC investigatory and subpoena powers because it does not bear on Bell’s own experience or detriment, I-ER.9-10, is not only factually wrong (see supra at pp.9-15), it is also wrong as a matter of law. EEOC-Brf at 43-46. The court’s refusal to enforce the subpoena rests on this legal error.

B. Jeanswear fails to counter the EEOC’s arguments that the district court’s “undue burden” ruling fails.

The district court ruled, alternatively, that if it erred in not enforcing the subpoena on relevance grounds, it would require Jeanswear to comply only partially with the EEOC’s subpoena because full compliance “would be unduly burdensome” and “[t]he entire universe of data is not needed for statistical analysis.” I-ER.14. The EEOC’s opening brief explained why this ruling is also an abuse of discretion: the court applied the wrong legal standard, and under the correct legal standard, Jeanswear failed to meet its burden of proof. EEOC-Brf at 48-55. Jeanswear’s responsive arguments are all unavailing.

As the EEOC explained, the district court applied an outdated “double relevance” test that assesses undue burden 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 (citations omitted). The test thus improperly incorporates a second, more demanding consideration of relevance into the analysis of burden. See EEOC-Brf at 48-49, 51-52.

Jeanswear defends this test based on a misreading of the Supreme Court’s decision in McLane Co. v. EEOC, 137 S. Ct. 1159 (2017). Jeanswear-Brf at 62-63. The Supreme Court explained the differences between the two tasks a district court undertakes in determining whether to enforce an EEOC subpoena. McLane, 137 S. Ct. at 1167-68. The first step—determining relevance—requires a court “to evaluate the relationship between the particular materials sought and the particular matter under investigation.” Id. at 1167. Nothing in McLane suggests that a court is tasked with determining how relevant, however: the standard for relevance in this context is quite broad, and the materials requested either are, or are not, relevant to the EEOC’s investigation under the standard. See id. at 1164-65; McLane, 857 F.3d at 815-16 (rejecting test that would allow a district court to determine whether the information EEOC requests is “necessary” to EEOC’s investigation; standard is whether it “might cast light” on the charge allegations). The second step, in contrast—determining undue burden—considers only “the nature of the materials sought and the difficulty the employer will face in producing them.” McLane, 137 S. Ct. at 1168 (emphasis added).

Jeanswear wrongly equates “nature” of the materials sought with the relevance of these materials to the matter under investigation. Jeanswear-Brf at 62-63. Nothing in McLane supports Jeanswear’s strained interpretation. Rather, the plain meaning of “nature of the materials” refers to the type of information requested (i.e., paper documents, computerized records, witness testimony), a consideration wholly separate from the relevance of the content of such information to the matter being investigated. Cf. EEOC v. Maryland Cup Corp., 785 F.2d 471, 478-79 (4th Cir. 1986) (reversing district court’s partial denial of subpoena enforcement on grounds of burden; noting employer’s obligation to produce requested information to EEOC even when not already in documentary form, including gathering information by inspecting photo identification badges and interviewing supervisors, managers, and co-workers). Properly read, McLane undermines the district court’s choice of a double-relevance test and supports the “unduly disrupts” test applied by the majority of circuits even before McLane. See EEOC-Brf at 49-51.

Second, in response to the EEOC’s argument that the company’s evidence failed to demonstrate undue burden, Jeanswear simply reiterates the cost/burden information it presented below. Jeanswear-Brf at 64 (citing I-ER.12). Relying on the declaration of Fran Mellette (who was responding to an information request that the EEOC thereafter narrowed in response to Jeanswear’s objections), Jeanswear contended it would take its staff over 300 hours to manually retrieve and compile the requested information from its database. See II-ER.128-133 (¶¶ 28-46). Jeanswear does not dispute that it failed to offer any evidence of its overall operating costs, which the EEOC argued (EEOC-Brf at 48-50) is necessary so the court has a factual basis to determine whether the company’s projected costs of compliance would be burdensome. Instead, Jeanswear argues only that “no binding precedent” requires it to produce that information (Jeanswear-Brf at 65), a statement that is true only because this Court has not yet examined how to determine undue burden for EEOC subpoenas.

On appeal, as below, Jeanswear does not acknowledge, let alone rebut, the EEOC’s evidence showing that Jeanswear’s claims of time and effort are overstated. As the district court recognized (I-ER.13), the EEOC presented the declaration of Ronald Edwards who, at the time, was the EEOC official in charge of statistical analysis of data in connection with charges of employment discrimination. See EEOC-Brf at 11, 54-55; II-ER.94-95. Edwards explained that Jeanswear’s software allows users to obtain the information the EEOC seeks through a computer search, with minimal need to consult paper records or people’s memories. See EEOC-Brf at 11; II-ER.94-95.

It was on this basis that the EEOC told the court: “Jeanswear’s computer system can yield almost everything the EEOC demands.” See Jeanswear-Brf at 64 (citing I-ER.14). The EEOC did not offer this to the court as a concession that computer-generated information would suffice, as Jeanswear contends (Jeanswear-Brf at 66-67), but only to demonstrate how little time Jeanswear would need to spend searching its paper records. Indeed, Jeanswear would likely need to supplement a computer search with a manual search of paper records only in those presumably rare instances where a piece of information is missing from the computerized database. Thus, when the district court limited Jeanswear’s compliance to a computer search, it was not “accepting the EEOC’s own argument,” as Jeanswear contends (id. at 64, 66-67), and nothing the EEOC said justifies the court’s limitation of Jeanswear’s compliance to a computerized search.

Jeanswear did not respond to the EEOC’s evidence at the September 2016 hearing (see generally I-ER.15-66) or any time thereafter. And the district court never asked Jeanswear to respond, although the court permitted the parties to engage in supplemental briefing on a different question after the September 2016 hearing. See EEOC-Brf at 55 (citing II-ER.72-80). Nor did the court purport to resolve this factual dispute in its decision.[3] See I-ER.13-14. Given the EEOC’s unrefuted evidence that Jeanswear’s claims of burden were either unfounded or substantially overstated, the court abused its discretion in ruling that full compliance would constitute an undue burden on Jeanswear.

This Court’s decision in Federal Express provides no support for the district court’s rejection of full compliance here. See Jeanswear-Brf at 66. In Federal Express, this Court upheld the EEOC’s subpoena seeking “basic information about the computer files that it maintains” to “aid the EEOC in fashioning a more detailed request” in the future, if the need were to arise. 558 F.3d at 845-46; see id. at 854 (rejecting Federal Express’s relevancy challenge because the requested information “will help the EEOC craft additional information requests that may produce evidence of discriminatory treatment”). Here, in contrast, Jeanswear already told the EEOC that it currently uses Workday and used PeopleSoft from 2002 through the end of 2014. II-ER.128. Because the EEOC is familiar with those computer programs, II-ER.94-95, it does not need such basic information from Jeanswear at the outset.

C. EEOC’s attempt to accommodate Jeanswear’s objections by narrowing the subpoena does not make the subpoena unreasonable or this appeal unripe.

There is no merit to Jeanswear’s argument that the EEOC, by narrowing its subpoena request in response to Jeanswear’s objections, effectively conceded that the information originally sought was irrelevant, unduly burdensome, or otherwise improper. Jeanswear-Brf at 67. Nor does the EEOC’s decision to exclude from this appeal two items of information originally sought (age and reason for termination) make the issue on appeal essentially a new question never presented to the district court. Id. at 67-70. As this Court recognized in Federal Express, 558 F.3d at 854-55, when the EEOC conducts an administrative investigation, it is permitted—although not required—to seek relevant information in stages. And where an employer objects to the EEOC’s request, the Commission is likewise permitted—although, again, not required—to respond by narrowing the request in an effort to allay those objections. That is exactly what the EEOC did here. Such a reasonable and measured response on the EEOC’s part in no way alters the question before this Court—did the district court abuse its discretion by refusing to enforce the EEOC’s subpoena?

A district court that believes an EEOC subpoena includes both relevant and no-n-relevant items is not free, on that ground, to deny enforcement entirely. Rather, the proper response is to enforce compliance with the relevant portions (assuming the employer has not demonstrated undue burden), as courts regularly do and as the court recognized here. See, e.g., Kronos, 620 F.3d at 294 n.2, 297-302; EEOC v. Dillon Cos., 310 F.3d 1271 (10th Cir. 2002); I‑ER.57. Denying enforcement of an administrative subpoena entirely, based on a determination that a portion of the subpoena seeks non-relevant or unduly burdensome information, would constitute an abuse of discretion.

In any event, the district court here did not view its decision as an all-or-nothing proposition, observing at the hearing that it had the “authority to tailor things.” I-ER.57. Thus, it did not deny enforcement because it found some of the requested information not relevant, while finding other requested information relevant. And although the court recognized Jeanswear’s objection to “age” and “reason for termination,” it gave no indication it would have ordered compliance if the EEOC had only omitted those two requests. I-ER.7, I-ER.10 n.3; see also EEOC-Brf at 25 n.6.

D. Circuit precedent authorizes the EEOC to continue its investigation despite issuing Bell a right-to-sue-notice.

Jeanswear argues the Commission “lacks jurisdiction” to investigate Bell’s charge because after the Commission issued Bell a right-to-sue-notice, she filed a private lawsuit against Jeanswear “based on the specific acts and practices she claims aggrieved her.” Jeanswear-Brf at 70. Relying on the Fifth Circuit’s decision in EEOC v. Hearst Corp., 103 F.3d 462, 469 (5th Cir. 1997), Jeanswear suggests that the EEOC’s only recourse at that point was either to intervene in Bell’s litigation (even though her private suit did not include any “class” or systemic claims) or file a Commissioner’s charge. See Jeanswear-Brf at 71.

Jeanswear is mistaken. This Court’s unanimous decision in Federal Express establishes that Bell’s private lawsuit does not end the EEOC’s right to investigate the class allegation in her charge. See EEOC-Brf at 31. Citing EEOC v. Waffle House, Inc., 534 U.S. 279, 287 (2002), this Court noted that “[t]he EEOC’s investigatory authority serves a greater purpose than just investigating a charge on behalf of an individual.” Federal Express, 558 F.3d at 852. This Court further explained, “By continuing to investigate a charge of systemic discrimination even after the charging party has filed suit, the EEOC is pursuing its obligation to serve the public interest.” Id.

This Court relied on an EEOC regulation that expressly authorizes the EEOC to continue processing a charge (i.e., to continue investigating) when the Commission determines that doing so “would effectuate the purpose of title VII.” Id. at 850 (citing, inter alia, 29 C.F.R. § 1601.28(a)(3)). On this basis, this Court ruled that the EEOC acted within its authority when it continued to investigate a possible pattern of discrimination at Federal Express affecting other employees after the charging party in that case joined a private class action. Id. at 850-51.

This Court reached its decision after carefully examining the Fifth Circuit’s reasoning in Hearst, which was decided before Waffle House and was the only other circuit to have ruled on the issue at the time. Federal Express, 558 F.3d at 851-53. This Court rejected the Hearst rationale on which Jeanswear relies—that once a charging party files suit, Title VII’s purposes for EEOC investigations “are no longer served.” See Jeanswear-Brf at 71 (quoting Hearst, 103 F.3d at 469); compare Federal Express, 558 F.3d at 852 (disagreeing with Hearst’s conclusion).

Federal Express controls the question here, and a three-judge panel of this Court cannot overrule it. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc) (three-judge panel cannot overrule a prior decision unless it has been effectively overruled by higher authority). Jeanswear’s cryptic footnote, see Jeanswear-Brf at 72 *, offers no reason to revisit Federal Express, in any event. And the only other circuit to have addressed the question since Federal Express also rejected Hearst and concurred with this Court. See EEOC v. Union Pac. R.R. Co., 867 F.3d 843, 849 (7th Cir. 2017), petition for certiorari filed, __ U.S.L.W. __ (U.S. Feb. 22, 2018) (No. 17-1180).

Jeanswear acknowledges Federal Express, but distinguishes it on the ground that it involved “a possible policy or pattern of discrimination affecting others.” Jeanswear-Brf at 71-72. According to Jeanswear, Bell’s charge “does not ‘raise[] the specter of systemic discrimination,’ at least not for the supervisors, managers, and executives that are the subjects of the subpoena” because Bell did not identify any “potentially unlawful act or practice relevant to those employees.” Id. at 72 (citation omitted).

The EEOC has already explained why this reasoning is flawed. First, Bell’s class-wide glass-ceiling allegation does “raise[] the specter of systemic discrimination.” And she identifies a potentially unlawful act or practice—failing to afford women opportunities to advance to “top level positions.” The EEOC seeks the identity of “top level employees” in an effort to investigate whether this allegation is true. Title VII requires no greater level of specificity than Bell’s charge already contains.

As in Federal Express, the district court here abused its discretion in refusing to enforce the EEOC’s subpoena. The EEOC’s continued investigation of Bell’s class glass-ceiling allegation furthers the purposes of Title VII and is a proper exercise of the EEOC’s authority under Title VII and 29 C.F.R. § 1601.28(a)(3). Intervening in Bell’s private suit would not have fulfilled these purposes because, as the district court noted in its opinion, Bell’s private lawsuit “had nothing to do with systemic employment practices, management jobs, or promotion.” I-ER.9 n.2.

Likewise, the theoretical availability of a separate Commissioner’s charge “hardly supports limiting the EEOC’s use of its most effective avenue,” which is the existing charge. Union Pac., 867 F.3d at 850. Indeed, this Court has noted that requiring the EEOC to start over with a Commissioner’s charge when it already has a valid charge would simply “champion form over substance” and generate “inexcusable waste” of resources and “intolerable delay” in remedying discrimination. See EEOC v. Occidental Life Ins. Co. of Cal., 535 F.2d 533, 542 (9th Cir. 1976), aff’d on other grounds Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977)).

The EEOC has been delayed long enough in its investigation. Its subpoena should now be enforced.

CONCLUSION

This Court should reverse the district court’s order and remand for enforcement of the subpoena.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th 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. 32(a)(7)(B) because it contains 6,972 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 2016 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., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

Dated: March 9, 2018

[1] Jeanswear implies that McLane is the only case in which this Court has reversed a district court’s refusal to enforce an EEOC subpoena. See Jeanswear-Brf at 41. This, of course, is incorrect. See, e.g., EEOC v. Children’s Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983) (en banc); see also EEOC v. Sears, Roebuck & Co., 885 F.2d 875 (9th Cir. 1989) (unpub.), 1989 WL 107831, at *2 (“we conclude that the district court abused its discretion in finding the [EEOC’s] request to be overbroad”).

[2] Jeanswear’s counsel misrepresented at the September 2016 hearing that Bell never held a supervisory or management position. I-ER.21-22 (tr.7:24-8:7, 8:21-22). The district court incorporated this misrepresentation into its decision. On appeal, Jeanswear contends that the court’s statement that Bell never held a management position is a finding of fact that can be reversed only if clearly erroneous. Jeanswear-Brf at 30, 42. It is clearly erroneous, however, as it is refuted by the only record evidence on the matter. II-ER.164-65. See also II-ER.179-80 (summary judgment decision in Bell v. Jeanswear, Civ. No. 14-cv-1916-PHX-JJT (D. Ariz. June 30, 2016)).

[3] The court stated that Jeanswear had no opportunity to respond to the EEOC’s evidence because it was submitted in a reply brief. I-ER.13. But the EEOC’s reply brief was the EEOC’s first opportunity to address Jeanswear’s undue burden evidence, as Jeanswear had not previously offered this explanation. See, e.g., II-ER.295 (Jeanswear’s August 2015 petition to withdraw the subpoena, arguing only that compliance would require manual compilation of information and would be “expensive,” without further detail). Furthermore, Jeanswear did not respond to the Edwards declaration at the September 30, 2016, hearing, even though the EEOC had filed it five weeks earlier. And Jeanswear did not seek to respond during the ensuing nine months before the court’s July 5, 2017, decision.