FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 28, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff - Appellee,
No. 18-1188
v. (D.C. No. 1:16-MC-00055-WJM-MLC)
(D. Colo.)
CENTURA HEALTH,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McKAY, and LUCERO, Circuit Judges.
_________________________________
Centura Health (“Centura”) appeals the district court’s orders enforcing in part
an administrative subpoena issued to it by the Equal Employment Opportunity
Commission (“EEOC”). We affirm exercising jurisdiction under 28 U.S.C. § 1291.1
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1
See EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1038 (10th Cir.
1993) (explaining that, for § 1291 purposes, “[a]n order of a district court directing
the production of records described in an administrative subpoena is a final
judgment”).
I
When investigating charges of discrimination, the EEOC may obtain evidence
that “relates to unlawful employment practices . . . and is relevant to the charge under
investigation.” 42 U.S.C. § 2000e-8(a). The EEOC is authorized to obtain such
evidence by issuing a subpoena and seeking a court order enforcing it. § 2000e-9;
McLane Co. v. EEOC, 137 S. Ct. 1159, 1164 & n.1 (2017). The EEOC exercised
those powers when it sought information from Centura, a multi-facility healthcare
organization operating primarily in Colorado. Between February 2011 and October
2014, eleven current or former Centura employees, working across eight Colorado
locations, filed charges of discrimination with the EEOC. They alleged that Centura
violated the Americans with Disabilities Act (“ADA”) by terminating their
employment or refusing to allow them to return to work after medical leave. These
employment decisions were allegedly made because of their disabilities or their
requests for accommodations.
After receiving the first charge in February 2011, the EEOC requested
information from Centura related to that charge, including the employee’s personnel
file and a list of all positions Centura had open at the time her employment ended.
Centura provided the information. After three more charges had been filed, the
EEOC informed Centura that its “investigation may include like and related
allegations by other aggrieved individuals involving bases and/or issues not directly
affecting the Charging Party, as well as those like and related issues not alleged in
the charge.” The EEOC asked Centura for information about all employees from
2
January 2009 through the date of the request in February 2012 who had “requested
and/or who were placed on non-[Family and Medical Leave Act (“FMLA”)]” or
FMLA leave, or who had requested an accommodation for their disability. Centura
responded that the request was overbroad and unduly burdensome and asked the
EEOC to narrow the scope of its request.
A month later, the EEOC sent Centura an identical request identifying multiple
charges as the objects of its investigation. Centura provided some of the requested
information but argued some requests were irrelevant to the charges at issue and
contended the cases involved “unique and isolated circumstances at separate
locations” that did not suggest a pattern of discrimination that might justify the
EEOC’s broad request. As the remainder of the eleven charges were filed, the EEOC
sent Centura more requests for information.2 Centura provided information regarding
each charging party but refused to provide further information, arguing the requests
sought information irrelevant to the individual charges and were overly burdensome.
The EEOC issued an administrative subpoena in December 2014. Subpoena
items 9 and 18(e) requested identifying information for each employee who worked
at the same facilities in Colorado as the eleven charging parties and who, between
August 2009 and 2014, requested an accommodation due to a medical condition
(item 9) or were identified as disabled (item 18(e)). Item 9 requested information
about the identified employees’ accommodation requests, the outcome of those
2
Those requests are referred to in the notices of the charges the EEOC sent to
Centura, but we are unable to locate them in the appendix Centura filed.
3
requests, and any disciplinary action or separation from employment. Item 18(e)
requested for each identified employee the type of medical condition at issue and
information about discipline or separation from employment.
Centura petitioned the EEOC to revoke or modify the subpoena. The EEOC
denied the petition and directed Centura to provide the requested information.
Centura refused, so the EEOC filed a subpoena-enforcement action in the district
court. Centura challenged only parts of the subpoena, including items 9 and 18(e),
arguing that compliance would be unduly burdensome and that the information
sought was not relevant to the eleven individual charges within the meaning of
§ 2000e-8(a). It alleged the information would only be relevant to a
pattern-or-practice investigation, but the EEOC had not filed a pattern-or-practice
charge.
The district court issued an order enforcing the subpoena in part. The court
ordered Centura to provide information it did not object to and ruled against Centura
regarding the relevance of the information requested in items 9 and 18(e). The court
determined the disputed information was relevant within the meaning of
§ 2000e-8(a), “given the number of ADA charges the EEOC has received and the
widespread geographic distribution of those charges.” The court noted that relevance
is “generously construed” and that “it is crucial that the Commission’s ability to
investigate charges of systemic discrimination not be impaired.” It referred the
undue burden question to a magistrate judge, who concluded producing information
4
related to items 9 and 18(e) would not be unduly burdensome and declined to take up
Centura’s contention that the information was not relevant.
The district court overruled Centura’s objections to the magistrate judge’s
undue burden decision. The court construed Centura’s objections in part as a motion
to reconsider the earlier ruling regarding relevance and determined this argument
lacked merit.3 The court therefore ordered Centura to comply with the magistrate
judge’s order. Centura appealed.
II
Centura now challenges only the district court’s relevance determination, not
its undue burden ruling. We review a district court’s ruling on the enforceability of
an EEOC subpoena for abuse of discretion. McLane Co., 137 S. Ct. at 1164.
“[W]hether a district court employed the correct standard of relevance—as opposed
to how it applied that standard to the facts of a given case—is a question of law,” and
a district court “necessarily abuse[s] its discretion if it based its ruling on an
erroneous view of the law.” Id. at 1168 n.3 (quotation and citation omitted). A
district court also abuses its discretion if it “relies on clearly erroneous factual
3
Centura pointed out that in an email it received from the EEOC after the
district court had ruled on relevance, the EEOC said it wanted to use the disputed
information to “determin[e] Centura’s usual policies and procedures regarding the
provision of reasonable accommodation.” Centura argued this statement amounted to
a concession that the request was an attempt “to pursue plenary discovery for a
pattern and practice investigation, rather than prosecuting the claims of the
individually named Charging Parties.” The district court rejected this argument
because “procedures are as relevant to investigation of an individual charge as they
are to a pattern-or-practice charge.”
5
findings, or where there is no rational basis in the evidence for its ruling.” Trentadue
v. FBI, 572 F.3d 794, 806 (10th Cir. 2009) (quotation omitted).
The EEOC has the authority to subpoena evidence that “relates to unlawful
employment practices . . . and is relevant to the charge under investigation.”
§ 2000e-8(a). This limitation “is not especially constraining” and “afford[s] the
Commission access to virtually any material that might cast light on the allegations
against the employer.” EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (emphasis
added). But courts must not “read relevancy so broadly as to render the statutory
requirement a nullity.” EEOC v. TriCore Reference Labs., 849 F.3d 929, 937
(10th Cir. 2017) (quotation omitted).
In the district court, the EEOC had the burden of establishing that the
subpoenaed information is relevant to the charges under investigation. Id. The
EEOC had to show: (1) “it has a realistic expectation rather than an idle hope that
the information requested will advance its investigation”; and (2) a “link between
[its] investigatory power and the charges of discrimination.” Id. (quotation omitted).
We conclude the district court did not abuse its discretion in determining the
EEOC met its burden. The relevance standard under § 2000e-8(a) “sweeps more
broadly than it would at trial.” EEOC v. McLane Co., 857 F.3d 813, 815 (9th Cir.
2017). This is because “[a]t the investigative stage, the EEOC is trying to determine
only whether ‘reasonable cause’ exists ‘to believe that the charge is true.’” Id.
(quoting § 2000e-5(b)). And at the summary judgment stage of litigation, for
example, evidence that an employer has a discriminatory policy “is potentially
6
relevant” to an individual charge. Jones v. United Parcel Serv., Inc., 502 F.3d 1176,
1188 (10th Cir. 2007). Because evidence of a discriminatory policy is relevant to
individual charges under the narrower relevance standard in a civil case, it follows
that such evidence is relevant to individual charges under the broader standard of
§ 2000e-8(a) because it “might cast light” on the charges under investigation. Shell
Oil Co., 466 U.S. at 69; see also EEOC v. Associated Dry Goods Corp., 449 U.S.
590, 604 (1981) (“Statistics and other information about an employer’s general
practices may certainly be relevant to individual charges of discrimination[.]”); Blue
Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (“[A]n employer’s
pattern of action [is] relevant to the Commission’s determination of whether there is
reasonable cause to believe that the employer has practiced racial discrimination”
(quotation omitted)).
That is not to say there are no limits. Our decisions in EEOC v. Burlington
Northern Santa Fe Railroad, 669 F.3d 1154 (10th Cir. 2012) and TriCore Reference
Laboratories set some boundaries in cases in which the EEOC seeks
pattern-or-practice evidence based only on individual charges. But the limits
outlined in those cases do not require us to conclude the district court abused its
discretion in this case.
In Burlington Northern, we determined the district court did not abuse its
discretion in denying a petition to enforce an administrative subpoena requesting
nationwide pattern-or-practice information because it was not relevant to charges of
racial discrimination filed by two employees in Colorado. 669 F.3d at 1159.
7
Because the information request referenced only the two individual charges and the
EEOC did not refer to any other charging parties or otherwise “indicate that an
additional charge [was] at issue,” id. at 1157, the EEOC had done nothing to
“transcend the gap between the pattern and practice investigation and the private
claims,” and the “wide deference” courts afford to the scope of EEOC subpoenas
could not bridge that gap, id. at 1158 (quotation omitted). We did, however, suggest
the subpoena might have been enforceable if it had been confined to Colorado
positions and offices. Id. In this case, the EEOC’s subpoena was based on eleven
charges and requested information pertaining only to the locations in Colorado where
the charging parties worked. A subpoena adhering to the geographical scope of
individual charges supports a determination that pattern-or-practice evidence is
relevant to the investigation of individual charges.
In TriCore Reference Laboratories, the EEOC sought judicial enforcement of
an administrative subpoena it issued while investigating a single charge of
discrimination. 849 F.3d at 929. While “a single discriminatory act does not, by
itself, warrant a broader pattern-or-practice investigation,” id. at 939, in this case the
EEOC based its request for pattern-or-practice information on eleven charges.
Centura argues that in cases in which there is no pattern-or-practice charge,
pattern-or-practice evidence is only relevant if there is a specific and substantial
connection between the individual claims and the information requested, rather than a
general possibility of finding patterns or practices. Centura contends the only
common theme tying the requested information to the eleven individual charges is the
8
broad fact that all the charges alleged disability discrimination. Relatedly, Centura
distinguishes cases the EEOC relies on where pattern-or-practice evidence was held
relevant to individual charges, pointing out that each case related to the investigation
of a policy more specific than some generic form of discrimination.4 Centura’s
representations of the disparate factual nature of the eleven charges is largely
accurate, and we agree with the distinctions it draws regarding the EEOC’s cases.
But Centura fails to persuade us that eleven charges of disability discrimination, most
alleging a failure to accommodate across a handful of an employer’s facilities, are
insufficient to warrant finding information regarding an employer’s pattern-or-
practice relevant.
Centura also faults the district court for relying on the statement in Shell Oil
that it is important not to impair the EEOC’s ability to investigate systemic
discrimination, 466 U.S. at 70, pointing out that in Shell Oil, there was a
pattern-or-practice charge, see id. at 88-89. Given the absence of a pattern-or-
practice charge against Centura, the district court’s reliance on this statement is
questionable, but it is not enough to alter our relevance analysis. See Citicorp Diners
Club, 985 F.2d at 1039 (“The EEOC seeks to vindicate the public interest, which is
broader than the interest of the charging parties.” (quotation omitted)); Blue Bell
4
Centura also makes much of the fact that the EEOC first sought
pattern-or-practice evidence based only on the first charge, and then, when Centura
resisted, laid in wait for several years until it had amassed ten more charges to
support what Centura views as the proverbial fishing expedition. But Centura has not
pointed to any prohibition on the EEOC’s course, and our task is to assess the district
court’s relevance determination based on the eleven charges.
9
Boots, Inc., 418 F.2d at 358 (“The Commission may, in the public interest, provide
relief which goes beyond the limited interests of the charging parties,” and therefore
“evidence concerning employment practices other than those specifically charged by
complainants may properly be considered by the Commission in framing a remedy.”).
Finally, Centura argues that holding pattern-or-practice evidence can be
relevant to individual charges renders superfluous Congress’ 1972 expansion of the
EEOC’s powers to include investigating pattern-or-practice charges when such
charges have been filed. See § 2000e-6(e). We disagree. The grant of authority to
the EEOC to investigate patterns or practices of discrimination accompanied the
transfer of that authority from the Attorney General. See § 2000e-6(c), (d); Gen. Tel.
Co. v. EEOC, 446 U.S. 318, 328 (1980) (“The 1972 amendments [to Title VII of the
Civil Rights Act of 1964] . . . transferred to the EEOC the Attorney General’s
authority to bring pattern-or-practice suits on his own motion.”). There is no
evidence that in transferring that authority, Congress meant to limit the type of
evidence the EEOC can obtain when investigating individual charges.5
5
Because we conclude the pattern-or-practice evidence is relevant to the
investigation of individual allegations against Centura in this case, we need not
address the parties’ arguments regarding whether the information might also allow
the EEOC to identify comparators.
10
IV
The district court’s orders enforcing the administrative subpoena are
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
11