EEOC v. Ferrellgas, L.P.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0064p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

│

Applicant-Appellee, │

> No. 23-1719

│

v. │

│

FERRELLGAS, L.P., │

Respondent-Appellant. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:23-mc-50094—Stephen J. Murphy III, District Judge.

Decided and Filed: March 26, 2024

Before: BOGGS, MOORE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Brent N. Coverdale, SCHARNHORST AST KENNARD GRIFFIN, PC, Kansas

City, Missouri, John T. Below, BODMAN PLC, Troy, Michigan, for Appellant. Steven

Winkelman, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for

Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Ferrellgas, L.P., appeals the district court’s

order enforcing an Equal Employment Opportunity Commission subpoena. Because the district

court did not abuse its discretion in enforcing the subpoena, we affirm.

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 3

three Ferrellgas entities employed them.2 In response to the second RFI, Ferrellgas’s outside

counsel requested that “all further communications regarding this matter . . . be directed to [his]

firm.” DE 7–10, Ferrellgas Response to RFI No. 2, Page ID 126.

The EEOC’s investigation continued over the next twenty-one months. In December

2021, the EEOC served Ferrellgas with a subpoena by mailing it to Ferrellgas’s outside counsel.

Ferrellgas responded, leveling several objections to the subpoena’s breadth and burdensomeness

but at the same time providing some responsive information. Ferrellgas did not object to the

EEOC’s manner of service.

A few months later, the EEOC sent Ferrellgas a third RFI, transmitting the request to the

same human resources employee who had responded to its initial RFI. This time, Ferrellgas

refused to provide any of the requested documentation. And in its response, Ferrellgas again

requested that all communications from the EEOC be directed to its outside counsel.

In October 2022, the EEOC served Ferrellgas with a second subpoena — addressed to

“Ferrellgas, Inc.” — by mailing the subpoena to Ferrellgas’s outside counsel and uploading the

subpoena to the EEOC’s online portal.3 Two weeks later, Ferrellgas responded through outside

counsel, refusing to provide any of the requested information on grounds of overbreadth and

undue burden. Ferrellgas’s outside counsel also observed that the subpoena was unsigned and

indicated that Ferrellgas was “not aware of any . . . certified mailing.” DE 2-4, Ferrellgas

Response to Oct. 2022 Subpoena, Page ID 33.

The following month, the EEOC re-issued its October subpoena. A near replica of the

original subpoena, the Commission’s November subpoena differed only in that it was dated

November 2, 2022, and signed by Deanna Wooten, the Enforcement Manager for the EEOC’s

Detroit office, on behalf of the EEOC’s Detroit District Director. The response date specified in

the November subpoena remained October 25, 2022, and the EEOC again served the subpoena

2

In separate email communications with an EEOC investigator, the Ferrellgas employee’s email signature

reflected that Ferrellgas, L.P., employed her as a Senior Human Resource Generalist.

3

Both Ferrellgas and its outside counsel had previously used the EEOC’s online portal to transmit

documents to the EEOC.

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 4

by uploading it to the EEOC’s online portal and sending a copy by certified mail to Ferrellgas’s

outside counsel.4

Consistent with its response to the October subpoena, Ferrellgas refused to provide any

responsive documents. Without formally petitioning the Commission for the subpoena’s

revocation or modification, Ferrellgas’s outside counsel referred the EEOC to Ferrellgas’s earlier

response, indicating that the company still “object[ed] to the [Subpoena’s] current scope.” DE 2-

3, Coverdale Email to EEOC, Page ID 31.

In January 2023, the EEOC applied for an order to show cause why the November 2022

subpoena should not be enforced under Section 710 of Title VII, 42 U.S.C. § 2000e-9. The

district court granted the application and directed Ferrellgas to respond. Ferrellgas responded,

and roughly four-and-a-half months later, the district court ordered that the subpoena be

enforced. Ferrellgas timely appealed.

II.

We review the district court's decision to enforce the EEOC’s subpoena for abuse of

discretion. McLane Co., Inc. v. EEOC, 581 U.S. 72, 85 (2017); EEOC v. Roadway Express, Inc.

(Roadway Express II), 261 F.3d 634, 638 (6th Cir. 2001). Under this highly deferential standard,

we disturb the district court’s judgment only if it “relie[d] on clearly erroneous findings of fact,

applie[d] the wrong legal standard, misapplie[d] the correct legal standard when reaching a

conclusion, or ma[de] a clear error of judgment.” Cole v. City of Memphis, 839 F.3d 530, 540

(6th Cir. 2016) (citation omitted). To warrant reversal, the district court’s mistake must “affect[]

substantial rights and amount[] to more than harmless error,” Himes v. United States, 645 F.3d

771, 782 (6th Cir. 2011) (quoting Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009)).

4

The certified-mail return receipt indicates that counsel received the subpoena on December 7, 2022.

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 5

III.

A.

Title VII bars employers from discharging or refusing to hire employees on the basis of

“race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). When an individual files

a sworn charge of employment discrimination with the EEOC, the Act “obligates the

Commission to investigate [the charge] to determine whether there is ‘reasonable cause to

believe that the charge is true.’” Univ. of Pa. v. EEOC, 493 U.S. 182, 190 (1990) (quoting 42

U.S.C. § 2000e-5(b)). In furtherance of this investigatory mandate, Title VII arms the

Commission with “a broad right of access to relevant evidence,” id. at 191, instructing that “the

Commission . . . shall . . . have access to . . . any evidence of any person being investigated or

proceeded against 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).

The EEOC’s right of informational access includes the authority to issue subpoenas duces

tecum seeking relevant documents and information. 42 U.S.C. § 2000e-9 (incorporating 29

U.S.C. § 161). An employer may petition the EEOC to revoke such a subpoena, “but if the

EEOC rejects the petition and the employer still refuses to obey . . . , the EEOC may ask a

district court to issue an order enforcing it.” McLane, 581 U.S. at 76 (cleaned up) (quoting

29 U.S.C. § 161(2)).

“A subpoena enforcement proceeding is a summary process designed to decide

expeditiously whether a subpoena should be enforced.” EEOC v. United Parcel Serv., Inc., 859

F.3d 375, 378 (6th Cir. 2017) (quoting EEOC v. Roadway Express, Inc. (Roadway Express I),

750 F.2d 40, 42 (6th Cir. 1984)). The reviewing court’s limited role is not “to determine

‘whether the charge of discrimination is ‘well founded’ or ‘verifiable,’’” but instead to “satisfy

itself that the charge is valid and that the material requested is ‘relevant’ to the charge.” Univ. of

Pa., 493 U.S. at 191 (quoting EEOC v. Shell Oil, 466 U.S. 54, 72 n.26 (1984)). If so, the court

“should enforce the subpoena unless the employer establishes that the subpoena is ‘too

indefinite,’ has been issued for an ‘illegitimate purpose,’ or is unduly burdensome.” McLane,

581 US. at 77 (quoting Shell Oil, 466 U.S. at 72 n.26); see also EEOC v. Ford Motor Credit Co.,

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 6

26 F.3d 44, 45 (6th Cir. 1994) (“An EEOC administrative subpoena may be judicially enforced

only if it: (1) seeks relevant information; (2) is not unduly burdensome; and (3) is within the

statutory authority of the EEOC.”).

B.

The district court found that Wells’s charge is facially valid, and Ferrellgas does not

dispute that finding. Instead, Ferrellgas challenges the Commission’s subpoena on four other

grounds — two procedural and two substantive. None of its objections prove meritorious.

1.

Ferrellgas first contends that the subpoena is unenforceable because it was improperly

served. Title VII authorizes the Commission to serve subpoenas in the same manner as the

National Labor Relations Board serves process under the National Labor Relations Act.

42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161). That statute provides:

Complaints, orders, and other process and papers of the Board, its member, agent,

or agency, may be served either personally or by registered or certified mail or by

telegraph or by leaving a copy thereof at the principal office or place of business

of the person required to be served.

29. U.S.C. § 161(4). Ferrellgas argues that, under § 161(4), the EEOC cannot serve a subpoena

by posting it to the Commission’s online portal or by mailing it to counsel. Instead, Ferrellgas

argues, the Commission was required to either mail the subpoena to Ferrellgas itself or employ

one of the other methods set forth in the Act.

We reject this argument for several reasons. At the outset, we view Ferrellgas’s

contention skeptically. Ferrellgas earlier complied with a subpoena served in the same manner it

now contests. And despite objecting to that subpoena’s substance, Ferrellgas previously

expressed no objection to the process it received.

Relatedly, we hesitate to treat the Commission’s subpoenas as “an invitation to a game of

hare and hounds,” in which the subject must comply "only if cornered at the end of the chase.”

NLRB v. Strickland, 321 F.2d 811, 813 (6th Cir. 1963). “[W]ould-be process servers are not

entirely at the mercy of elusive defendants,” and here, where Ferrellgas twice instructed the

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 7

Commission to direct future communications to its outside counsel, it cannot now defeat service

of process by claiming that the Commission erred in following its explicit request. NLRB v.

Clark, 468 F.2d 459, 464 (5th Cir. 1972) (service at respondent’s former business address proper

under § 161(4) where “to all possible outward appearances” and by the respondent’s “own

doing” the former address was “still [respondent]’s ‘principal place of business’” (quoting

§ 161(4))). To hold otherwise would reward duplicity and allow potential defendants to easily

avoid the Commission’s subpoenas. What is more, it would “create a rule that would allow a

lawyer with actual notice of a subpoena to take no action, in hope that the [Commission] will not

seek enforcement, and to make objections only if enforcement proceedings ensue.” NLRB v.

Fresh & Easy Neighborhood Mkt., Inc., 805 F.3d 1155, 1162 (9th Cir. 2015). Either result

would defeat “[t]he evident Congressional purpose in enacting [29 U.S.C. § 161(4)]” — that is,

“to enable the NLRB to serve complaints and other papers by registered mail.” Clark, 468 F.2d

at 464.

Finally, we reject Ferrellgas’s interpretation of § 161(4) on its face. The statute is silent

as to whether service by registered or certified mail requires delivery to the respondent himself,

and this court has previously endorsed the view that an NLRB subpoena served by registered

mail need not be delivered directly to the subpoenaed individual to satisfy § 161(4). NLRB v.

Strickland, 220 F. Supp. 661, 666 (W.D. Tenn. 1962) (finding § 161(4) satisfied where NLRB

mailed subpoena to respondent’s office and respondent did not sign for the mailing), aff'd, 321

F.2d 811, 813 (6th Cir. 1963). We have elsewhere endorsed the principle that when “[a]ctual

notice reached counsel promptly and counsel responded on the merits,” service not in strict

conformity with the NLRB’s regulations does not preclude a district court’s enforcement of a

Board subpoena. NLRB v. Cincinnati Bronze, Inc., 811 F.2d 607, 607 (6th Cir. 1986) (per

curiam) (table disposition); see also NLRB v. Playskool, Inc., 431 F.2d 518, 520 (7th Cir. 1970)

(per curiam) (enforcing subpoenas duces tecum despite flawed service because “[n]o prejudice

ha[d] been shown to have resulted”). We see no reason why similar principles should not apply

to the EEOC’s subpoenas.5 Cf. EEOC v. C & P Tel. Co., 813 F. Supp. 874, 875 n.1 (D.D.C.

5

We find Ferrellgas’s reliance on Fed. R. Civ. P. 45 and cases that cite to that Rule unpersuasive. Whether

Rule 45 requires personal service of subpoenas is of little moment in this case, because the advisory committee notes

to Rule 45 state that the Rule “does not apply to the enforcement of subpoenas issued by administrative officers and

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 8

1993) (“Because respondents knew of the subpoena, the EEOC's manner of service, even if

technically defective, constitutes substantial compliance.”). Ferrellgas instructed the

Commission to send communications to its attorney, and its attorney received actual notice of the

Commission’s mailed subpoena; these facts suffice to demonstrate adequate service of process

under § 161(4). Cf. Strickland, 321 F.2d at 813.6

2.

Ferrellgas next challenges the Commission’s subpoena as facially invalid, arguing that it

failed to comply with the Commission’s procedural rules. We reject this argument on similar

grounds.

The Commission’s regulations provide that a subpoena

shall state the name and address of its issuer, identify the person or evidence

subpoenaed, the person to whom and the place, date, and the time at which it is

returnable or the nature of the evidence to be examined or copied, and the date

and time when access is requested.

29 C.F.R. § 1601.16(a). Here, Ferrellgas correctly observes that the EEOC’s subpoena (1) lists a

response deadline that predates the subpoena’s issuance and (2) names “Ferrellgas, Inc.,” as the

subpoenaed party rather than Ferrellgas Partners, L.P., (whom Wells charges discriminated

against her) or Ferrellgas, L.P., (the respondent identified in the EEOC’s application to enforce

its subpoena). So, at a surface level, the Commission issued a subpoena with an invalid response

date and now seeks court enforcement of that subpoena against an entity that was not, strictly

speaking, the target of the subpoena itself. These technical oversights are blameworthy, and the

Commission should have rectified them well before this juncture. Cf. EEOC v. Kimberly-Clark

commissions pursuant to statutory authority.” Fed. R. Civ. P. 45 advisory committee note (1937); see also

Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 451 (6th Cir. 1941) (citing advisory committee notes); EEOC

v. Maryland Cup Corp., 785 F.2d 471, 477 (4th Cir. 1986) (same). But see United States v. Tenn. Walking Horse

Breeders' & Exhibitors' Ass'n, 727 F. App'x 119, 124 (6th Cir. 2018) (“[A]lthough Rule 45 does not apply directly to

administrative subpoenas, Rule 81 makes clear that district courts have discretion to apply the federal rules generally

to proceedings to enforce administrative subpoenas.”).

6

To the extent the district court may have failed to address the EEOC’s manner of service, we find any

such error harmless. See Himes, 645 F.3d at 782.

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 9

Corp., 511 F.2d 1352, 1360 (6th Cir. 1975) (“The EEOC should, of course, follow its own

procedures[.]”).

But “it would exalt form over substance” to force the Commission to issue a new

subpoena, entertain Ferrellgas’s substantive objections, and then apply for enforcement of the

new subpoena in the district court, “all to bring us back to where we are now.” United States v.

Ritchie, 15 F.3d 592, 600 (6th Cir. 1994) (nonprejudicial errors in administrative procedures

mandated by Internal Revenue Code 7609(f) concerning IRS’s “John Doe” summonses not fatal

to the summons), cert. denied, 513 U.S. 868 (1994). Ferrellgas made no effort to clarify or seek

correction of the subpoena’s stale response deadline, and Ferrellgas’s subsequent conduct

demonstrates that it intended to defy the subpoena even if the response date had been valid.

Moreover, the Commission has not yet determined whether it possesses reasonable cause to

believe Wells’s allegations and, if so, which Ferrellgas entity would prove a suitable defendant in

a civil enforcement action. Indeed, identifying the charging individual’s de facto employer is

one (implied) purpose of the Commission’s investigation. See Swallows v. Barnes & Noble Book

Stores, Inc., 128 F.3d 990, 992–93 (6th Cir. 1997) (discussing alternative theories under which

an entity may qualify as an individual’s employer). We thus cannot wholly condemn the

Commission’s procedural lapses.

More to the point, however, the EEOC’s errors did not prevent Ferrellgas from raising its

substantive objections to the subpoena before the Commission, the district court, or this panel.

Kicking our inevitable consideration of those substantive objections several months down the

road would contravene the summary nature of these proceedings and exact a needless tax on

already limited judicial resources. See Kobetic v. Comm'r of Soc. Sec., 114 F. App'x 171, 173

(6th Cir. 2004) (“When ‘remand would be an idle and useless formality,’ courts are not required

to ‘convert judicial review of agency action into a ping-pong game.’” (quoting NLRB v. Wyman-

Gordon Co., 394 U.S. 759, 766 n.6 (1969))). We find these considerations especially persuasive

here, when the Commission’s procedural errors did nothing to prejudice Ferrellgas’s case on the

merits. See Smalley v. Comm'r of Soc. Sec., No. 20-1865, 2021 WL 4026783, at *4 (6th Cir.

Sept. 3, 2021) (per curiam) (“[A]n agency's violation of its procedural rules will not result in

reversible error absent a showing that the claimant has been prejudiced on the merits or deprived

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 10

of substantial rights because of the agency's procedural lapses.” (quoting Connor v. U.S. Civ.

Serv. Comm'n, 721 F.2d 1054, 1056 (6th Cir. 1983))). Because Ferrellgas suffered no prejudice,

the EEOC’s noncompliance with 29 C.F.R. § 1601.16 constituted harmless error, and it did not

preclude the district court from enforcing the subpoena.

3.

Before we reach Ferrellgas’s substantive objections, we briefly address the EEOC’s

contention that Ferrellgas forfeited its right to challenge the subpoena’s enforcement altogether.

Section 11(1) of the National Labor Relations Act, from which the Commission’s subpoena

power derives, provides that:

Within five days after the service of a subpena [sic] on any person requiring the

production of any evidence in his possession or under his control, such person

may petition the Board to revoke, and the Board shall revoke, such subpena [sic]

if in its opinion the evidence whose production is required does not relate to any

matter under investigation, or any matter in question in such proceedings, or if in

its opinion such subpena [sic] does not describe with sufficient particularity the

evidence whose production is required.

29 U.S.C. § 161(1) (emphasis added). The Fifth Circuit has interpreted § 161(1) to impose an

administrative-exhaustion requirement on employers who seek to avoid enforcement of an

EEOC subpoena, see EEOC v. Cuzzens of Georgia, Inc., 608 F.2d 1062, 1064 (5th Cir. 1979)

(per curiam), and the Seventh Circuit — in an unreported case — has interpreted the EEOC’s

implementing regulations to do the same, see EEOC v. Aerotek, Inc., 498 F. App'x 645, 647–48

(7th Cir. 2013). But see EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 962–67 (D.C. Cir. 1999)

(addressing an employer’s substantive objections to an EEOC subpoena despite the employer’s

failure to petition the Commission for revocation or modification). Citing these cases, the

Commission asserts that by neglecting to formally petition the EEOC for the subpoena’s

revocation or modification, Ferrellgas failed to exhaust its available administrative remedies and

thus forfeited its right to challenge the subpoena’s enforcement in court.

This argument is not without merit. We have previously held that an employer could

contest an NLRB subpoena in federal court, despite failing to petition the Board for its

revocation under § 161(1), only because the employer challenged the subpoena on constitutional

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 11

grounds. See NLRB v. Midland Daily News, 151 F.3d 472, 474 (6th Cir. 1998). And Ferrellgas

asserts no constitutional challenge here.

But Midland, Aerotek, and Cuzzens also appear distinguishable — none of those cases

addressed exhaustion of administrative remedies in light of an employer’s allegation that the

EEOC (or the NLRB) failed to properly serve a facially valid subpoena. It is self-evident,

Ferrellgas argues, that an employer’s obligation to exhaust its administrative remedies under

§ 161(1) and 29 C.F.R. § 1601.16(b)(1), if it exists at all, is contingent upon proper service of a

subpoena that complies with the statute and its implementing regulations. This argument carries

considerable logical force, and we find support for it in our caselaw. See Vokas Provision Co. v.

NLRB, 796 F.2d 864, 874 (6th Cir. 1986) (“[A] person is under a duty to obey a subpoena only

when that person has been validly served.”); Strickland, 321 F.2d at 814 (“[T]he obligation of a

witness to testify in response to a subp[o]ena is conditional upon being ‘properly summoned.’”

(quoting United States v. Bryan, 339 U.S. 323, 331 (1950))). But see Fresh & Easy, 805 F.3d at

1162–64 (applying administrative-exhaustion requirement to EEOC subpoena despite technically

flawed service). So while the Commission points to compelling precedent from outside our

circuit, we are not bound to adopt an administrative-exhaustion requirement under the present

circumstances. See Lutheran Soc. Servs., 186 F.3d at 963 (“[C]ourts may exercise their

traditional authority to hear issues not presented to the agency if the circumstances surrounding

noncompliance with agency procedures are sufficiently compelling.”). We therefore turn to

Ferrellgas’s substantive objections.

4.

Ferrellgas substantively objects to the Commission’s subpoena as overbroad and unduly

burdensome. The subpoena is overbroad, Ferrellgas argues, because while Wells’s charge

implicates the company’s pay and termination practices, the subpoena seeks information

concerning Ferrellgas’s hiring practices — a wholly different topic. The subpoena is unduly

burdensome, Ferrellgas claims, because the “file retrieval costs, copying costs, and employee

time spent complying with the EEOC’s requests, would be in excess of normal operating costs

and present a great burden.” CA6 R. 13, Appellant Br., at 25.

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 12

The district court did not abuse its discretion in rejecting these arguments. “Although the

relevancy standard [in 42 U.S.C. § 2000e-8(a)] places some limitation on the scope of the

EEOC’s investigative authority, 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.” United Parcel Service, 859 F.3d at 378 (cleaned up) (quoting Roadway

Express II, 261 F.3d at 639). Accordingly, the Commission need not limit its investigation to a

“review [of] evidence concerning the specific charge[s]” at hand. Id. (quoting Roadway Express

I, 750 F.2d at 43). Instead, even evidence concerning patterns of race- or sex-based

discrimination “in job classifications or hiring situations other than those that the EEOC’s charge

specifically targeted” may prove relevant. Roadway Express II, 261 F.3d at 639 (citing Blue Bell

Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969)).

Ferrellgas’s relevancy objection fails in two respects. First, the record supports the

district court’s conclusion that Wells charged discrimination not only in Ferrellgas’s pay and

termination practices, but also in its hiring decisions. Wells alleges that when she interviewed

for the service technician role, Ferrellgas’s representatives all but outright told her that they

would not hire a woman — twice informing Wells that the position was “a man’s job” and at one

point asking her if her husband was available to take the job instead. DE 7-2, Charge, Page ID

86. Wells further alleges that, although she was qualified for the service technician position, the

company ultimately hired her as a driver because “they have hired women [service technicians]

in the past and it never worked out.” Id. To be sure, Wells’s charge lacks the magic words

“discriminatory hiring.” But the Commission’s regulations do not hold complaining individuals

to the requirements of artful legal pleading; they demand only that the charge provide

information sufficient “to identify the parties, and to describe generally the action or practices

complained of.” 29 C.F.R. § 1601.12(b); see also EEOC v. UMPC, 471 F. App’x 96, 100 (3d

Cir. 2012) (“[T]he charge does not need to contain the legal theory under which the EEOC

proceeds.”); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970) (“In the context

of a statute like Title VII it is inconceivable that a charging party's rights should be cut off

merely because he fails to articulate correctly the legal conclusion emanating from his factual

allegations.”). Wells’s factual allegations encompass a discriminatory-hiring allegation, and the

material that the Commission seeks — temporally- and geographically-limited information

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 13

regarding other individuals who applied for a driver position with Ferrellgas — is directly

relevant to that charge.

Even if Wells had failed to allege discriminatory hiring, however, the requested material

would still be relevant under the § 2000e-8(a) standard. The application and hiring information

that the Commission seeks could cast light on whether Ferrellgas discriminated against other job

applicants — in the same region and during the same timeframe as Wells’s employment —

based on sex or race. In turn, that information might illuminate whether Ferrellgas discriminated

against Wells on those same bases but in other employment contexts — i.e., in her pay and

termination. See Roadway Express II, 261 F.3d at 638 (“[E]vidence that an employer

discriminated in one situation or employment position is relevant to a determination of whether

the employer discriminated in other circumstances.”); Ford Motor Credit, 26 F.3d at 47

(“[E]mployment context is relevant to a charge of employment discrimination.”). So even if

Ferrellgas were correct that Wells failed to allege discriminatory hiring, its relevancy objection

would still fall short.

Ferrellgas’s claim that the subpoena imposes an undue burden also fails. “[W]hether a

subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the

employer will face in producing them.” McLane, 581 U.S. at 81. Given its “fact-intensive”

nature, the burdensomeness inquiry is “generally not amenable to broad per se rules.” Id. (first

quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990), and then quoting

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008)). The employer bears the

obligation to show that compliance would impose an undue burden. Id. at 77.

The sole evidence on which Ferrellgas relies to show undue burden is an unsigned,

undated declaration. This is not a proper declaration under 28 U.S.C. § 1746, and we therefore

decline to consider it.7 See Blount v. Stanley Eng'g Fastening, 55 F.4th 504, 515 (6th Cir. 2022).

7

Ferrellgas asserts that the EEOC forfeited any argument regarding the propriety of the Yendrek

Declaration by failing to raise the issue below. But “[t]his court can affirm a decision of the district court on any

grounds supported by the record, even if different from those relied on by the district court.” Brown v. Tidwell, 169

F.3d 330, 332 (6th Cir. 1999). And in any event, the Commission raised the issue at its earliest available

opportunity. Ferrellgas submitted the unsigned declaration in response to the district court’s order to show cause,

and the district court did not provide for supplemental briefing or oral argument following Ferrellgas’s submission.

No. 23-1719 EEOC v. Ferrellgas, L.P. Page 14

Even if the declaration were properly before the court, however, we would find

Ferrellgas’s contentions unpersuasive. The declaration represents that a search for responsive

records covered by the subpoena would require between 700 and 1500 employee hours that

could otherwise be spent on normal operations. After that, Ferrellgas claims, a human resources

employee would need to dedicate two full weeks of work to compile the records and review them

for responsiveness.

Assuming these figures are true, Ferrellgas nevertheless fails to explain why they

represent an undue burden. Assessing whether the burden of compliance is undue is a

comparative exercise; what is unduly burdensome to a small business with a handful of

employees may not be unduly burdensome to a Fortune 500 company. Cf. Maryland Cup Corp.,

785 F.2d at 479 (finding no undue burden where employer failed to show “that the cost of

gathering [responsive] information is unduly burdensome in the light of the company’s normal

operating costs” (emphasis added)). While Ferrellgas’s figures provide an estimate of the

burden it might face, Ferrellgas offers up no baseline against which we can compare its estimates

to decide whether the burden it faces is undue. Merely pointing out that compliance with the

subpoena will divert employee attention from ordinary tasks is insufficient — if that were

enough, then nearly every EEOC subpoena would fail. We are not blind to the fact that

compliance with the Commission’s subpoena will require significant time and effort, but without

some metric of how significant that time and effort is, we cannot find that an employer has met

its burden to show that compliance would be unduly burdensome. See United States v. Chevron

U.S.A., Inc., 186 F.3d 644, 649–50 (5th Cir. 1999) (finding no undue burden where the employer

“offer[ed] no explanation . . . why, relative to [its] size, the compliance cost and effort ‘unduly

disrupt[ed] or seriously hinder[ed] normal operations’” (quoting FTC v. Jim Walter Corp., 651

F.2d 251, 258 (5th Cir. 1981))). Accordingly, the district court did not abuse its discretion in

finding that Ferrellgas faced no undue burden in complying with the subpoena.

IV.

For the foregoing reasons, we affirm.

The Commission’s opening brief before this court, in which it raised the issue, was thus its first available

opportunity to do so.