In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3452
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Petitioner‐Appellee,
v.
UNION PACIFIC RAILROAD COMPANY,
Respondent‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14‐mc‐00052‐LA — Lynn Adelman, Judge.
____________________
ARGUED FEBRUARY 6, 2017 — DECIDED AUGUST 15, 2017
____________________
Before ROVNER and WILLIAMS, Circuit Judges, and CONLEY,
District Judge.*
CONLEY, District Judge. Union Pacific Railroad challenges
the legal authority of the Equal Employment Opportunity
Commission to continue an enforcement action after issuing
* Of the Western District of Wisconsin, sitting by designation.
2 No. 15‐3452
a right to sue letter and subsequent resolution of the underly‐
ing charges of discrimination in a private lawsuit. The EEOC
petitioned the district court to enforce its subpoena for Union
Pacific’s employment records related to these charges. After
denying Union Pacific’s motion to dismiss for lack of author‐
ity to maintain the investigation under Title VII and the
EEOC’s own regulations, the district court granted the peti‐
tion, prompting this appeal. While an issue of first impression
in this circuit, similar challenges have created a split in au‐
thority between the Fifth Circuit in EEOC v. Hearst, 103 F.3d
462 (5th Cir. 1997), and more recently the Ninth Circuit in
EEOC v. Federal Express Corporation, 558 F.3d 842 (9th Cir.
2009). Both the United States Supreme Court and this court
have repeatedly recognized the EEOC’s broad role in promot‐
ing the public interest by preventing employment discrimina‐
tion under Title VII, including its independent authority to in‐
vestigate charges of discrimination, especially at a company‐
wide level. Accordingly, we agree with the district court that
neither the issuance of a right‐to‐sue letter nor the entry of
judgment in a lawsuit brought by the individuals who origi‐
nally filed the charges against Union Pacific bars the EEOC
from continuing its own investigation.
I. Background
On January 3, 2011, Frank Burks and Cornelius L. Jones,
Jr., began working at Union Pacific as “Signal Helpers,” an en‐
try‐level job that involves laying wires and cables, digging
trenches, changing signal lines, and climbing poles. Burks and
Jones were the only African‐American employees in their ori‐
entation group. After a 90‐day probationary period, both be‐
came eligible for possible promotion to an “Assistant Signal
Person” position. In June 2011, Jones applied to take the
No. 15‐3452 3
Skilled Craft Battery Test (“SCBT” or “the test”), a require‐
ment to seek the promotion. After receiving no response,
Jones reapplied in September 2011. Burks also applied to take
the test in October 2011. Neither, however, were ever pro‐
vided the opportunity to do so.
Instead, on October 10, 2011, Union Pacific eliminated the
Signal Helper position in the zones where Burks and Jones
worked, and both were terminated. That same month, Burks
filed a charge with the EEOC, which states in pertinent part:
“I have been denied the opportunity to take a test for the As‐
sistant Signalman position. On or about October 10, 2011, I
was discharged again.1 I believe that I have been discrimi‐
nated because of my race, Black, and in retaliation for having
engaged in protected activity.” Jones filed a similar charge the
following month.
After receiving notification from the EEOC that charges
had been filed, Union Pacific responded with a position state‐
ment, attaching tables that listed Signal Helpers working in
the same district as Burks and Jones and the results of those
employees’ applications for promotion. In particular, a table
provided by Union Pacific showed that of the eighteen Signal
Helper applicants, eleven were white, six were black, and one
was Hispanic. Of the eleven white applicants, ten passed the
test and were promoted, while one failed and was denied the
promotion. The one Hispanic applicant passed the test and
was promoted. Of the six black applicants, Burks and Jones
1 Burks’ charge states that he was terminated again because he was
also fired after 20 days on the job. After filing an EEOC complaint that
alleged racial discrimination, however, Union Pacific opted to reinstate
Burks, acknowledging that he had been inadequately coached before ter‐
mination. Burks returned to work in May 2011.
4 No. 15‐3452
are the only applicants who applied but were not adminis‐
tered the tests. Of the other four applicants, none were pro‐
moted, although the table does not state the reason.
In March 2012, the EEOC sent Union Pacific its first re‐
quest for information seeking, among other items, a copy of
the test used by Union Pacific to promote Signal Helpers to
the Assistant Signalman position and company‐wide infor‐
mation about persons who sought the Assistant Signalman
position during the relevant period. After Union Pacific re‐
fused that request, the EEOC issued its first subpoena in May
2012 and brought suit to enforce it in March 2013. EEOC v.
Union Pacific R.R. Co., Misc. No. 13‐mc‐22 (E.D. Wis.). The par‐
ties then reached a settlement in which: (1) Union Pacific
agreed to provide identification information, including test
results, for all individuals who took the test for the Assistant
Signalman position during the relevant period of time; and (2)
the EEOC dismissed its enforcement action. However, the
EEOC contends that Union Pacific never provided this prom‐
ised company‐wide information.
In July 2012, the EEOC issued a right‐to‐sue letter to both
Jones and Burks on their charges. See 42 U.S.C. § 2000e‐5(f)(1)
(requiring the EEOC to provide a notice of right‐to‐sue to the
charging individual within 180 days of the filing of the
charge). Jones and Burks then filed a joint complaint, assert‐
ing discrimination claims in the United States District Court
for the Northern District of Illinois. Burks v. Union Pacific R.R.
Co., No. 2012 C 8164 (N.D. Ill. Oct. 11, 2012).
In July 2014, the district court granted Union Pacific’s mo‐
tion for summary judgment in the Jones and Burks’ lawsuit,
finding insufficient evidence to support their claims of hostile
No. 15‐3452 5
work environment, retaliation for filing prior EEOC com‐
plaints, and racial harassment. Burks v. Union Pac. R.R. Co.,
No. 12 C 8164, 2014 WL 3056529 (N.D. Ill. July 7, 2014); see also
App. 017‐034. Consistent with that finding, the district court
dismissed Jones and Burks’ claims with prejudice, and this
court later affirmed. Burks v. Union Pac. R.R. Co., 793 F.3d 694
(7th Cir. 2015).
While Jones and Burks’ action was still proceeding in dis‐
trict court, the EEOC issued Union Pacific a second request
for information in January 2014, seeking information about
Union Pacific’s electronic storage systems, additional testing
and computer information, and details about Signal Helpers
across the company who were similarly situated to Burks and
Jones. Union Pacific again refused, and the EEOC served a
second subpoena in May 2014, which is the focus of this ap‐
peal.
After Union Pacific administratively petitioned to revoke
or modify the subpoena, the EEOC brought an enforcement
action in September 2014. The district court denied Union Pa‐
cific’s motion to dismiss, rejecting its arguments that the
EEOC lost its investigatory authority either (1) after the issu‐
ance of a right to sue notice to Jones and Burks or (2) when the
district court granted judgment in favor of Union Pacific. The
district court also rejected Union Pacific’s challenge to the rel‐
evance of the material requested and granted the EEOC’s mo‐
tion to enforce its subpoena. This appeal followed.
II. Discussion
The appeal actually presents two issues. The first is a ques‐
tion of law—whether the EEOC is authorized by statute to
continue investigating an employer by seeking enforcement
6 No. 15‐3452
of its subpoena after issuing a notice of right‐to‐sue to the
charging individuals and the dismissal of the individuals’ sub‐
sequent civil lawsuit on the merits—which we review de novo.
See EEOC v. United Air Lines, 287 F.3d 643, 649 (7th Cir. 2002).
The second—whether the information sought in the subpoena
was relevant to the EEOC’s investigation—we review under
an abuse of discretion standard. See McLane Co. v. EEOC, 581
U.S. ____, 137 S. Ct. 1159, 1170 (2017); United Air Lines, 287
F.3d at 649. 2
A. Enforcement Authority
Title VII was amended in 1972 to provide the EEOC with
the authority to sue employers as a means “to implement the
public interest as well as to bring about more effective en‐
forcement of private rights. Gen. Tel. Co. of Nw. v. EEOC, 446
U.S. 318, 326 (1980) (discussing 42 U.S.C. § 2000‐5(f)(1)). In‐
deed, this amendment expressly recognized that the EEOC’s
critical role in preventing employment discrimination ex‐
tends beyond the private charge filed by an individual. As the
Supreme Court explained in General Telephone, “When the
EEOC acts, albeit at the behest of and for the benefit of specific
individuals, it acts also to vindicate the public interest in pre‐
venting employment discrimination.” Id. at 326; see also EEOC
2 Jurisdiction over the EEOC’s petition for enforcement of the sub‐
poena below is found both in 42 U.S.C. § 2000e‐5(f) and § 2000e‐8(c), which
authorize a district court to adjudicate subpoena enforcement actions filed
by the EEOC, and 28 U.S.C § 1345, which provides district courts with
subject matter jurisdiction over suits filed by the United States or its agen‐
cies. See EEOC v. Watkins, 553 F.3d 593, 595 (7th Cir. 2009). Because the
district court’s October 15, 2015, order enforcing the subpoena is a final
order, and Union Pacific filed a timely appeal, we exercise jurisdiction
over this appeal under 28 U.S.C. § 1291.
No. 15‐3452 7
v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th Cir. 1993)
(EEOC’s “interests are broader than those of the individuals
injured by discrimination.”).
Certainly, as Union Pacific stressed in its appeal, “the
EEOC’s investigative authority is tied to charges filed with
the Commission; unlike other federal agencies that possess
plenary authority to demand to see records relevant to mat‐
ters within their jurisdiction, the EEOC is entitled to access
only to evidence ‘relevant to the charge under investigation.’”
EEOC v. Shell Oil Co., 466 U.S. 54, 64 (1984) (citing 42 U.S.C.
§ 2000e‐8(a)); see also United Air Lines, 287 F.3d at 650 (citing
Shell Oil for proposition that “the authority of the EEOC to
investigate is grounded in the charge of discrimination”). Un‐
ion Pacific’s appeal is premised on a theory, however, that the
EEOC’s investigatory authority also ends when the charging
individual commences a lawsuit on his or her claim of em‐
ployment discrimination. As a result, Union Pacific argues
that the district court erred in allowing the EEOC to pursue
an investigation, including its issuance and enforcement of a
subpoena, after issuing Jones and Burks a right‐to‐sue letter,
and even if the EEOC’s authority extended beyond the issu‐
ance of the right‐to‐sue letter, any investigatory authority
surely ended when the district court granted judgment in Un‐
ion Pacific’s favor on the individuals’ claims themselves.
As mentioned, whether the issuance of a right‐to‐sue letter
to the charging individual terminates the EEOC’s authority to
investigate is an issue of first impression for this circuit and
has produced a split in the circuits that have considered the
issue. In EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997), the Fifth
Circuit held that the EEOC’s authority to investigate a charge
ends when it issues a right‐to‐sue letter; in contrast, in EEOC
8 No. 15‐3452
v. Federal Express Corporation, 558 F.3d 842 (9th Cir. 2009), the
Ninth Circuit held that the issuance of a right‐to‐sue letter
does not strip the EEOC of authority to continue to process
the charge, including independent investigation of allega‐
tions of discrimination on a company‐wide basis.
Not surprisingly, Union Pacific primarily relies on the
Fifth Circuit’s decision in support of its appeal.3 The Hearst
court found relevant that the “‘integrated, multistep enforce‐
ment procedure’ established by Title VII is divided into four
distinct stages: filing and notice of charge, investigation, con‐
ference and conciliation, and, finally enforcement.” Hearst,
103 F.3d at 468 (citing Occidental Life Ins. Co. v. EEOC, 432 U.S.
355, 359 (1977)). The court further found that these steps must
always proceed as separate stages, rather than overlapping
each other. Id. While acknowledging the EEOC’s ability to con‐
tinue an investigatory role by either intervening in an individ‐
ual’s lawsuit, by pursuing discovery or by filing a Commis‐
sioner’s charge, 29 C.F.R. § 1601.11, the Fifth Circuit did not
explain why the EEOC’s authority to investigate necessarily
must be limited to the pre‐enforcement phase. On the con‐
trary, if you read the entire Hearst opinion, particularly “Sec‐
tion A,” which deals with whether the subpoena was un‐
timely, the Fifth Circuit appeared most concerned about
speeding up the EEOC process as a whole. See Hearst, 103 F.3d
at 468 (“Notwithstanding that the 180‐day period appears to
be an important part of the statutory design, it has been ren‐
dered practically meaningless.”); see also Federal Express, 558
3 The amicus brief submitted by the Equal Employment Advisory
Council also relies heavily on the Hearst opinion. While we have reviewed
the submission, the amicus brief does not add materially to the arguments
presented by the appellant.
No. 15‐3452 9
F.3d at 853 n.4 (similarly observing that Fifth Circuit appears
primarily motived by speed). Policy concerns about delays in
resolving charges, while worthwhile, would seem an insuffi‐
cient (if not irrelevant) basis to assess the statutory authority
vested in the EEOC to investigate in parallel or inde‐
pendently, especially in light of the EEOC’s broad obligation
to the public interest. Cf. Shell Oil, 466 U.S. at 69 (cautioning
that the EEOC’s ability “to investigate charges of systemic dis‐
crimination not be impaired”).
Twelve years after the Hearst opinion, the Ninth Circuit in
Federal Express rejected the Fifth Circuit’s concept of distinct,
linear stages of enforcement by the EEOC, holding that “the
beginning of another stage does not necessarily terminate the
preceding stage.” 558 F.3d at 852. Today, we join in that hold‐
ing, concluding that the text of Title VII, and more recent Su‐
preme Court and Seventh Circuit opinions, do not support
such a restrictive interpretation of the EEOC’s enforcement
authority.
To begin, Title VII sets forth the requirements and general
process for: (1) the filing of a charge by an aggrieved individ‐
ual or by an EEOC Commissioner, § 2000e‐5(b), (e); (2) initiat‐
ing an investigation of the charge by the EEOC, § 2000e‐8(a);
(3) exploring conciliation efforts if appropriate, § 2000e‐5(b);
and (4) engaging in enforcement efforts through its own civil
action or by issuing a right‐to‐sue letter to the private party,
§§ 2000e‐5(f)(1), 2000e‐5(b). As previously noted, the Supreme
Court explained in Shell Oil that a charge must meet the re‐
quirements of 42 U.S.C. § 2000e‐5(b) to serve as a “prerequi‐
site to judicial enforcement of a subpoena issued by the
10 No. 15‐3452
EEOC.” Shell Oil, 466 U.S. at 65.4
The requirements of the statute itself are minimal: the
charge “shall be in writing, under oath or affirmation and
shall contain such information and be in such form as the
Commission requires.” Id. at 67 (quoting 42 U.S.C. § 2000e‐
5(b)). The applicable regulations further provide that a charge
must contain “[a] clear and concise statement of the facts, in‐
cluding the pertinent dates, constituting the alleged unlawful
employment practices.” Id. (quoting 29 C.F.R. §
1601.12(a)(3)(1983)). As also previously explained, “[w]hether
a specific charge is valid is determined from the face of the
charge, not from extrinsic evidence.” United Airlines, 287 F.3d
at 650 (internal citation omitted); see also Watkins Motor Lines,
Inc., 553 F.3d 593, 597 (7th Cir. 2009) (requiring only the filing
of a valid charge to authorize the EEOC to investigate). Since
there seems no dispute that the charges filed in 2011 met these
basic requirements, there is no reasonable dispute that the
EEOC was expressly authorized to conduct an investigation.
In contrast, once begun, the statute does not expressly (nor
from the court’s perspective, implicitly) limit the EEOC’s in‐
vestigatory authority to the 180‐day window it has to issue a
notice of right‐to‐sue letter if requested by the charging indi‐
vidual. Moreover, while a valid charge is a requirement for
4 In EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009), this
court observed that, although the Supreme Court refers to a “jurisdictional
prerequisite,” the statutory requirement of a valid charge is not that, at
least in the broadest sense, but rather it is a “mandatory case‐processing
rule[].” Id. at 595‐96. As such, the lack of a valid charge does not deprive
the court of subject matter jurisdiction over a subpoena enforcement ac‐
tion, though it would doom any enforcement action. Id.
No. 15‐3452 11
beginning an EEOC investigation, nothing in Title VII sup‐
ports a ruling that the EEOC’s authority is then limited by the
actions of the charging individual.
Between the Fifth Circuit’s decision in Hearst and the
Ninth Circuit’s more recent opinion in Federal Express, the Su‐
preme Court also considered whether an arbitration agree‐
ment with the charging individual would bar the EEOC from
pursuing victim‐specific judicial relief on behalf of that em‐
ployee. See EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). In
holding that the charging individual’s agreement to arbitrate
did not bar further action on the part of the EEOC, the Su‐
preme Court addressed the interplay between an individual
charge and the EEOC’s continuing authority to investigate
and pursue enforcement actions: “The statute clearly makes
the EEOC the master of its case and confers on the agency the
authority to evaluate the strength of the public interest at
stake.” Id. at 291. As such, the Court necessarily rejected the
notion—endorsed by the Fifth Circuit in Hearst and again
proffered by the appellant here—that the EEOC’s role is
“merely derivative” of the charging individual. Id. at 297.
Following Waffle House, this court similarly held in Watkins
Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009), that the with‐
drawing of a charge of discrimination by an employee does
not strip the EEOC of its authority to pursue its investigation.
“All Shell Oil requires is a valid charge. Once one has been
filed, the EEOC rather than the employee determines how the
investigation proceeds.” Id. at 596; see also EEOC v. Sidley Aus‐
tin LLP, 437 F.3d 695, 696 (7th Cir. 2006) (“The reason there
was no bar [in Waffle House] was not that the arbitration clause
was unenforceable but that the Commission was not bound
by it because its enforcement authority is not derivative of the
12 No. 15‐3452
legal rights of individuals even when it is seeking to make
them whole.” (emphasis added)).
This understanding of the EEOC’s independent authority
is further confirmed by the amendments to Title VII, which
granted the EEOC broader authority to investigate and initi‐
ate enforcement actions to address employment discrimina‐
tion, expressly beyond the specific complaints of the private
charging individual. As this court explained in Watkins, to
limit the EEOC’s investigation to the decisions made by the
charging individuals would needlessly inhibit its ability to
conduct “a pattern‐or‐practice investigation that might lead
to relief for many persons in addition to [the charging indi‐
vidual].” 553 F.3d at 597. Accordingly, the EEOC has subse‐
quently adopted a regulation that expressly contemplates the
continuation of an investigation after the issuance of a notice
of right‐to‐sue.
Issuance of a notice of right to sue shall termi‐
nate further proceeding of any charge that is not
a Commissioner charge unless the District Di‐
rector; Field Director; Area Director; Local Di‐
rector; Director of the Office of Field Programs
or upon delegation, the Director of Field Man‐
agement Programs; or the General Counsel, de‐
termines at that time or at a later time that it
would effectuate the purpose of title VII, the
ADA, or GINA to further process the charge.
29 C.F.R. § 1601.28(a)(3); see also Federal Express, 558 F.3d at 850
& n.2.5
5 While Union Pacific challenges whether this regulation is entitled to
Chevron deference based on its contrary construction of Title VII, “[t]he
No. 15‐3452 13
Perhaps Union Pacific’s stronger argument is that the
EEOC has other avenues available to pursue an investigation
once a notice of right‐to‐sue letter has been issued—namely,
the EEOC could (1) serve a Commissioner’s charge or (2) in‐
tervene in the charging individual’s lawsuit.6 However, the
availability of alternate investigatory avenues hardly sup‐
ports limiting the EEOC’s use of its most effective avenue, es‐
pecially given that both alternatives could undermine the full
investigatory authority of the EEOC. For example, a Commis‐
sioner’s charge filed after issuance of a notice of right‐to‐sue
may be deemed untimely, see Watkins, 553 F.3d at 598, or lim‐
itations on discovery may be imposed in the charging indi‐
vidual’s lawsuit, see Fed. R. Civ. P. 26(b)(1). In light of the ab‐
sence of any textual support in Title VII for appellant’s posi‐
tion, the EEOC’s adoption of a regulation that expressly con‐
templates the continuation of an investigation after the notice
of right‐to‐sue letter has been issued, and the Supreme
Court’s express guidance that the EEOC is the master of the
charge in order to serve a public interest extending beyond
that of a charging individual, therefore, we hold that the issu‐
ance of a right‐to‐sue letter does not bar further investigation
EEOC’s interpretation of its own rules is entitled to deference.” Shell Oil,
466 U.S. at 74 n.28. Regardless, since the court has already rejected Union
Pacific’s construction, this challenge completely fails to get off the ground.
6 “A Commissioner charge is a discrimination claim issued by an
EEOC Commissioner; there is no private charging party.” EEOC v.
Quad/Graphics, Inc., 63 F.3d 642, 644 (7th Cir. 1995); see also EEOC v. A.E.
Staley Mfg. Co., 711 F.2d 780, 785 (7th Cir. 1983) (explaining that one pur‐
pose of a Commissioner’s charge is “to initiate an investigation where an
individual is unwilling to file the charge for fear of retaliation by the em‐
ployer” (internal citation omitted)).
14 No. 15‐3452
on the part of the EEOC.
This leaves Union Pacific’s alternative contention, that any
authority the EEOC had to enforce a subpoena after the right‐
to‐sue letter was issued ended when the charging individuals’
lawsuit was dismissed on the merits. While this issue extends
beyond that posed to the Fifth and Ninth Circuits, the
answer—and the reasoning underlying the answer—would
appear the same: the 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. In its opening brief,
Union Pacific asserts flatly without offering any textual or
legal support that “if a court rules that a charge is invalid, then
an investigation of that charge is over.” Appellant’s Br. 10. To
the contrary, the validity of the charge is judged on the face of
the charge itself. See United Airlines, 287 F.3d at 650; Watkins,
553 F.3d at 597. Assuming the charge meets the requirements
of 42 U.S.C. § 2000e‐5(b), and the EEOC has not resolved or
dismissed the charge, see 29 C.F.R. §§ 1601.21, 1601.19, the
language of Title VII grants the EEOC control over its own
investigation and enforcement efforts. Accordingly, the
disposition of a civil action brought by charging individuals
does not necessarily prevent the EEOC from continuing that
investigation.7 To hold otherwise would not only undercut
the EEOC’s role as the master of its case under Title VII, it
would render the EEOC’s authority as “merely derivative” of
that of the charging individual contrary to the Supreme
Court’s holding in Waffle House. 534 U.S. at 291, 297. The
7 For example, the charge of a larger pattern or practice of discrimina‐
tion obviously extends beyond the interests of the two charging individu‐
als.
No. 15‐3452 15
policy implications of such a ruling are also disturbing, since
it would give unhealthy leverage to an individual litigant and
an undue incentive to employers to purchase a stipulated
dismissal with prejudice in order to prevent the EEOC from
pursuing a larger public interest where the circumstances
warrant. Even an adjudication on the merits of the
individuals’ charges, as here, would leave the outcome to the
narrower, private interests and resources of those individuals,
rather than to the judgment that the EEOC is required to
exercise in pursuing leads uncovered as part of its own,
independent investigation in the public interest.
Of course, in determining whether to enforce a subpoena,
there is also the requirement of relevance, as discussed imme‐
diately below. And, although of little solace to Union Pacific
here, the EEOC itself describes the continuation of its own in‐
vestigation after the issuance of a right‐to‐sue notice as unu‐
sual or atypical. Appellee’s Br. 29; see also 29 C.F.R.
§ 1601.28(a)(3) (describing exception to usual proceeding of
terminating investigation upon issuance of notice of right‐to‐
sue). Finally, in determining whether to enforce a subpoena,
a district court could still consider the date of filing of the
charge, the course of the investigation, the timing of the sub‐
poena, and any civil actions brought by the charging individ‐
uals in determining whether the subpoena poses an undue
burden. See McLane, 137 S. Ct. at 1170.
16 No. 15‐3452
B. Relevance
Under Title VII, the EEOC is authorized to examine and
copy “any evidence … relevant to the charge under investiga‐
tion,” and it may “petition the district courts to enforce the
subpoenas it issues pursuant to this authority.” 42 U.S.C.
§ 2000e‐8(a); EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 645 (7th
Cir. 1995) (citing 42 U.S.C. § 2000e‐9)). As the Supreme Court
explained in Shell Oil, the requirement under § 2000e‐8 that
the EEOC is only entitled to “relevant” evidence is not in‐
tended to be “especially constraining.” 466 U.S. at 68; see also
United Air Lines, 287 F.3d at 652 (describing the burden as “not
particularly onerous”). Rather, “courts have generously con‐
strued 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.
Still, “[t]he requirement of relevance, like the charge require‐
ment itself, is designed to cabin the EEOC’s authority and pre‐
vent ‘fishing expeditions.’” United Air Lines, 287 F.3d at 653.
Here, the EEOC received information from Union Pacific
itself that all other African‐American Signal Helpers, not just
the original claimants Burks and Jones, applying for a promo‐
tion to Assistant Signalman were turned down for a promo‐
tion. Based on this, the EEOC sought additional information
about the test being administered to become eligible for pro‐
motion and the successful and unsuccessful applicants, in‐
cluding computerized personnel information. While Union
Pacific contends that the information sought extends beyond
the allegations in the underlying charges, this argument is
premised on the same overly narrow view of the role of the
EEOC already rejected in this opinion above. Moreover, the
information sought in the subpoena might well “cast light on
No. 15‐3452 17
the allegations against the employer,” thus satisfying the rel‐
evance requirement, or at least the district court did not abuse
its discretion in so finding.8 Accordingly, the district court’s
order enforcing the subpoena is AFFIRMED.
8 As the Supreme Court reiterated recently in McLane Co. v. EEOC, 581
U.S. ____, 137 S. Ct. 1159 (2017), “[i]f the charge is proper and the material
requested is relevant, the district court should enforce the subpoena un‐
less the employer establishes that the subpoena is ‘too indefinite,’ has been
issued for an ‘illegitimate purpose,’ or is unduly burdensome.” Id. at 1170
(quoting Shell Oil, 466 U.S. at 72 n.26). While Union Pacific argued to the
district court that the petition should be dismissed because the EEOC un‐
reasonably delayed in serving its subpoena, Union Pacific did not press
this argument on appeal. Even if it had, the district court did not abuse its
discretion in finding that Union Pacific contributed to the delay by refus‐
ing to provide information requested in the EEOC’s first and second sub‐
poena.