FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. EQUAL EMPLOYMENT No. 13-15126
OPPORTUNITY COMMISSION,
Plaintiff-Appellant, D.C. No.
2:12-cv-02469-GMS
v.
MCLANE COMPANY, INC., OPINION
Defendant-Appellee.
On Remand From the United States Supreme Court
Filed May 24, 2017
Before: J. Clifford Wallace, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
2 EEOC V. MCLANE CO.
SUMMARY*
Subpoena / EEOC
On remand from the United States Supreme Court, the
panel vacated the district court’s order denying enforcement
of an administrative subpoena issued by the Equal
Employment Opportunity Commission to McLane Company
as part of an investigation of a sex discrimination claim.
The EEOC alleged that McLane discriminated the basis
of sex when it fired a former employee after she failed to pass
a physical capability strength test. As relevant here, the
subpoena requested “pedigree information” (name, Social
Security number, last known address, and telephone number)
for employees or prospective employees who took the test.
The panel held that the district court abused its discretion
by denying enforcement of the subpoena because the
information was relevant to the EEOC’s investigation. The
panel vacated the district court’s order denying enforcement
of the subpoena and remanded for further proceedings. The
panel held that on remand McLane was free to renew its
argument that the EEOC’s request for pedigree information
was unduly burdensome. The panel further instructed that on
remand, the district court should resolve whether producing
a second category of evidence—the reasons test takers were
terminated—would be unduly burdensome to McLane.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EEOC V. MCLANE CO. 3
COUNSEL
James Tucker (argued), Attorney, P. David Lopez, General
Counsel, Lorraine C. Davis, Acting Associate General
Counsel, Daniel T. Vail, Acting Assistant General Counsel,
U.S. Equal Employment Opportunity Commission,
Washington, D.C., for Plaintiff-Appellant.
Ronald E. Manthey (argued) and Ellen L. Perlioni, Morgan,
Lewis & Bockius LLP, Dallas, Texas; Joshua R. Woodard
and Ashley T. Kasarjian, Snell & Wilmer L.L.P., Phoenix,
Arizona, for Defendant-Appellee.
OPINION
WATFORD, Circuit Judge:
This case returns to us on remand from the United States
Supreme Court. In our earlier decision, we held that the
district court erred by denying enforcement of an
administrative subpoena issued by the Equal Employment
Opportunity Commission (EEOC) to McLane Company.
EEOC v. McLane Co., 804 F.3d 1051 (9th Cir. 2015),
vacated, 137 S. Ct. 1159 (2017). The EEOC issued the
subpoena as part of its investigation into a charge filed by
Damiana Ochoa, a former employee of a McLane subsidiary.
Ochoa alleged that McLane discriminated against her on the
basis of sex when it fired her after she failed to pass a
physical capability strength test. As relevant here, the
subpoena requests “pedigree information” (name, Social
Security number, last known address, and telephone number)
for employees or prospective employees who took the test.
In accordance with prevailing circuit precedent at the time,
4 EEOC V. MCLANE CO.
we reviewed de novo the district court’s ruling that the
pedigree information was not relevant to the EEOC’s
investigation. Id. at 1056. The Supreme Court vacated our
judgment after concluding that a district court’s decision
whether to enforce an EEOC subpoena should be reviewed
for abuse of discretion. McLane Co. v. EEOC, 137 S. Ct.
1159, 1164 (2017). The Court remanded the case so that we
could re-evaluate the district court’s ruling under the proper
standard of review. Id. at 1170. Having done so, we
conclude that the district court abused its discretion by
denying enforcement of the subpoena.
The district court held that the pedigree information was
not relevant “at this stage” of the EEOC’s investigation
because the evidence McLane had already produced would
“enable the E.E.O.C. to determine whether the [strength test]
systematically discriminates on the basis of gender.” The
court suggested that if the EEOC’s analysis of the
information McLane had already produced during the
investigation indicates systemic discrimination, the pedigree
information might become relevant at that point, and its
production to the EEOC might then be “necessary.”
The district court’s ruling was predicated on an erroneous
view of the legal standard governing relevance in this context.
We adopt below the portions of our earlier analysis that
remain relevant to explaining why the district court
committed legal error in this regard.
Under Title VII of the Civil Rights Act of 1964, the
EEOC has the right to obtain evidence if it relates to
employment practices made unlawful under Title VII and “is
relevant to the charge under investigation.” 42 U.S.C.
§ 2000e–8(a). The relevance limitation imposed by
EEOC V. MCLANE CO. 5
§ 2000e–8(a) “is not especially constraining.” EEOC v. Shell
Oil Co., 466 U.S. 54, 68 (1984). The question is not whether
the evidence sought would tend to prove a charge of unlawful
discrimination. At the investigative stage, the EEOC is trying
to determine only whether “reasonable cause” exists “to
believe that the charge is true.” 42 U.S.C. § 2000e–5(b). So
the relevance standard in this context sweeps more broadly
than it would at trial. It encompasses “virtually any material
that might cast light on the allegations against the employer.”
Shell Oil, 466 U.S. at 68–69.
Under this standard, the pedigree information is relevant
to the EEOC’s investigation. Ochoa’s charge alleges that
McLane’s use of the strength test discriminates on the basis
of sex. To decide whether there is any truth to that allegation,
the EEOC can of course speak to Ochoa about her experience
with taking the test. But the EEOC also wants to contact
other McLane employees and applicants for employment who
have taken the test to learn more about their experiences.
Speaking with those individuals “might cast light” on the
allegations against McLane—whether positively or
negatively. To take but one example, the EEOC might learn
through such conversations that other female employees have
been subjected to adverse employment actions after failing
the test when similarly situated male employees have not. Or
it might learn the opposite. Either way, the EEOC will be
better able to assess whether use of the test has resulted in a
pattern or practice of disparate treatment. To pursue that
path, however, the EEOC must first learn the test takers’
identities and contact information, which is enough to render
the pedigree information relevant to the EEOC’s
investigation.
6 EEOC V. MCLANE CO.
McLane contends that, given all of the other information
it has produced, the EEOC cannot show that production of the
pedigree information is “necessary” to complete its
investigation. But the governing standard is not “necessity”;
it is relevance. If the EEOC establishes that the evidence it
seeks is relevant to the charge under investigation, we have
no warrant to decide whether the EEOC could conduct the
investigation just as well without it. The EEOC does not
have to show a “particularized necessity of access, beyond a
showing of mere relevance,” to obtain evidence. University
of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1990).
Congress has not left it to employers accused of
discrimination to decide what evidence may be necessary for
the EEOC to complete its investigation. Id. at 193.
For similar reasons, the district court erred as a matter of
law when it held that pedigree information is irrelevant “at
this stage” of the investigation. The court reasoned that the
evidence McLane had already produced would allow the
EEOC to determine whether McLane’s use of the strength
test discriminates on the basis of sex. The court suggested
that if the EEOC’s analysis of that evidence indicates
systemic discrimination, the pedigree information might
become relevant and obtaining that information might then be
“necessary.” The EEOC argues that the district court
improperly required it to substantiate the allegation of
systemic discrimination before it could obtain access to
relevant evidence. We doubt that is what the district court
meant, as the Supreme Court has made plain that courts may
not condition enforcement of EEOC administrative subpoenas
on a threshold evidentiary showing that the allegations under
investigation have merit. Shell Oil, 466 U.S. at 71–72 &
n.26. Rather, the district court appeared to conclude that the
EEOC did not really need pedigree information to make a
EEOC V. MCLANE CO. 7
preliminary determination as to whether use of the strength
test has resulted in systemic discrimination. As we have
explained, however, that line of reasoning is invalid: The
EEOC’s need for the evidence—or lack thereof—simply does
not factor into the relevance determination.
McLane argues that the pedigree information is not
relevant because Ochoa’s charge alleges only a “neutrally
applied” strength test, which by definition cannot give rise to
disparate treatment, systemic or otherwise. McLane’s
argument misconstrues the charge. Ochoa alleges that
McLane requires all employees returning from medical leave
to take the strength test before they can return to work, but
she does not allege that the test is neutrally applied. (She
alleges just the opposite—that the test was discriminatorily
applied as to her.) Even though McLane requires everyone to
take the test, the test could still be applied in a discriminatory
manner—if, for example, the company were to routinely
excuse the failure of male employees to pass the test but grant
no such exemptions to similarly situated female employees.
The very purpose of the EEOC’s investigation is to determine
whether the test is being neutrally applied; the EEOC does
not have to take McLane’s word for it on that score. See
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,
296–99 (4th Cir. 2010).
Because the district court based its ruling on an incorrect
view of the legal standard governing relevance, it necessarily
abused its discretion when it held that the pedigree
information is not relevant to the EEOC’s investigation. See
McLane, 137 S. Ct. at 1168 n.3; id. at 1170 (Ginsburg, J.,
concurring in part and dissenting in part) (stating that “the
District Court erred as a matter of law in demanding that the
EEOC show more than relevance in order to gain
8 EEOC V. MCLANE CO.
enforcement of its subpoena”). We therefore vacate the
district court’s judgment and remand for further proceedings.
On remand, McLane is free to renew its argument that the
EEOC’s request for pedigree information is unduly
burdensome. McLane raised that argument in the district
court during the first round of litigation, but the court had no
occasion to reach it given the court’s ruling on relevance. We
decline to address McLane’s undue burden argument in the
first instance ourselves.
On remand, the district court should also resolve whether
producing a second category of evidence—the reasons test
takers were terminated—would be unduly burdensome to
McLane. In our earlier decision, we noted that the district
court had declined to enforce this portion of the EEOC’s
subpoena, without stating its reasons for doing so. 804 F.3d
at 1058–59. We vacated that aspect of the district court’s
judgment, and McLane did not seek review of that ruling in
the Supreme Court. McLane, 137 S. Ct. at 1166 n.2. That
issue thus remains open for the district court to resolve in the
first instance as well.
VACATED and REMANDED. Each party shall bear
their own costs on appeal.