Petition for Writ of Certiorari — Union Pacific Railroad Company, Petitioner v. Equal Employment Opportunity Commission

Supreme Court briefFeb 16, 2018

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Text

No.

In the

Supreme Court of the United States

UNION PACIFIC RAILROAD COMPANY

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

E. KING POOR

QUARLES & BRADY LLP

300 N. LaSalle Street

Suite 4000

Chicago, IL 60654

(312) 715-5000

J. SCOTT BALLENGER

Counsel of Record

WILLIAM M. FRIEDMAN

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

scott.ballenger@lw.com

Counsel for Petitioner

QUESTIONS PRESENTED

Title VII authorizes the Equal Employment

Opportunity Commission to investigate charges of

discrimination, and to issue subpoenas to employers

for information relevant to the charge under

investigation. This case presents two important

questions on which the circuits are divided:

1. Whether the Seventh Circuit erred by

holding, in conflict with decisions of the Fifth

Circuit, that the EEOC may enforce a subpoena after

the charging employee has initiated litigation, and

even after the charging employee’s claim has been

adjudicated meritless in court.

2. Whether the Seventh Circuit erred by

holding, in conflict with decisions of the Tenth and

Eleventh Circuits, that a charge alleging only

individual discrimination permits the EEOC to

subpoena nationwide information about suspected

discrimination against other employees in other

employment practices.

RULE 29.6 STATEMENT

Petitioner Union Pacific Railroad Company is a

wholly owned subsidiary of Union Pacific

Corporation.

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... vi

OPINIONS BELOW.................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 1

STATEMENT OF THE CASE .................................... 1

REASONS FOR GRANTING THE WRIT.................. 9

REVIEW IS WARRANTED TO RESOLVE

THE CONFLICT OVER THE EEOC’S

AUTHORITY TO INVESTIGATE AFTER

LITIGATION COMMENCES ........................... 11

A. The Seventh Circuit’s Decision

Deepens An Acknowledged Circuit

Split About The EEOC’s Power To

Investigate After Litigation Begins ........... 11

B. The Fifth Circuit’s Decision In Hearst

Aligns Most Closely With The Text

And Purpose Of Title VII ........................... 13

II.

REVIEW ALSO IS WARRANTED TO

RESOLVE A CIRCUIT CONFLICT OVER

THE

PERMISSIBLE

SUBSTANTIVE

SCOPE OF AN EEOC SUBPOENA................. 18

A. The Sixth And Seventh Circuits

Have

Adopted

Overbroad

Standard For Relevance That Gives

The

EEOC

Nearly

Plenary

Investigative Power.................................... 18

TABLE OF CONTENTS—Continued

Page

B. The Tenth And Eleventh Circuits

Have Rejected The View That Any

Individual Charge Authorizes A

Broad-Ranging Investigation, And

Would Not Have Enforced This

Subpoena .................................................... 22

C. The Tenth And Eleventh Circuits

Would Properly Refuse To Enforce

This Subpoena ............................................ 26

III. THE CONFLICT AMONG THE CIRCUITS

IMPLICATES ISSUES OF NATIONAL

IMPORTANCE THAT MERIT REVIEW ......... 28

CONCLUSION .......................................................... 33

APPENDIX TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for

the

Seventh

Circuit,

Equal

Employment Opportunity Commission v.

Union Pacific Railroad Company, 867

F.3d 843 (7th Cir. 2017) .....................................1a

Decision and Order of the United States

District Court for the Eastern District of

Wisconsin Denying Respondent’s Motion

Dismiss,

Equal

Employment

Opportunity Commission v. Union Pacific

Railroad Company, 102 F. Supp. 3d 1037

(E.D. Wis. 2015) ................................................19a

TABLE OF CONTENTS—Continued

Page

Order of the United States Court of Appeals

for the

Seventh Circuit

Denying

Rehearing,

Equal

Employment

Opportunity Commission v. Union Pacific

Railroad Company, No. 15-3452 (7th Cir.

Nov. 21, 2017) ...................................................29a

42 U.S.C. § 2000e-5 .................................................30a

42 U.S.C. § 2000e-6 .................................................36a

42 U.S.C. § 2000e-8 .................................................40a

42 U.S.C. § 2000e-9 .................................................41a

Brief of Appellee, Blue Bell Boots, Inc. v.

Equal

Employment

Opportunity

Commission, No. 18,924 (7th Cir. Nov. 29,

1968) (excerpt) ..................................................42a

Charge of Discrimination by Frank Burks,

dated Oct. 31, 2011 (7th Cir. filed Sept.

19, 2016), ECF No. 17 .......................................44a

Charge of Discrimination by Cornelius L.

Jones, Jr., dated Nov. 4, 2011 (7th Cir.

filed Sept. 19, 2016), ECF No. 17 .....................47a

TABLE OF AUTHORITIES

CASES

Page(s)

Auer v. Robbins,

519 U.S. 452 (1997)..............................................17

Blue Bell Boots, Inc. v. EEOC,

418 F.2d 355 (6th Cir. 1969)..........................19, 20

Burks v. Union Pacific Railroad Co.,

No 12 C 8164, 2014 WL 3056529 (N.D.

Ill. July 7, 2014), aff’d, 793 F.3d 694 (7th

Cir. 2015)........................................................1, 5, 6

Burks v. Union Pacific Railroad Co.,

793 F.3d 694 (7th Cir. 2015)..................................6

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984)..............................................17

EEOC v. Austal USA, LLC, Misc. No. 1700006-WS-MU, 2017 WL 4563078 (S.D.

Ala. Aug. 18, 2017), recommendation

adopted as op. at 2017 WL 4562634

(S.D. Ala. Oct. 12, 2017) ................................29, 30

EEOC v. Burlington Northern Santa Fe

Railroad,

669 F.3d 1154 (10th Cir. 2012).................... passim

EEOC v. Cambridge Tile Manufacturing

Co.,

590 F.2d 205 (6th Cir. 1979)................................20

vii

TABLE OF AUTHORITIES—Continued

Page(s)

EEOC v. Federal Express Co.,

558 F.3d 842 (9th Cir. 2009).................. 2, 7, 12, 17

EEOC v. Hearst Corp.,

103 F.3d 462 (5th Cir. 1997)............ 2, 8, 10, 11, 12

EEOC v. Konica Minolta Business

Solutions,

639 F.3d 366 (7th Cir. 2011)...................... 3, 21, 22

EEOC v. Roadway Express, Inc.,

261 F.3d 634 (6th Cir. 2001)............................3, 21

EEOC v. Royal Caribbean Cruises, Ltd.,

771 F.3d 757

(11th Cir. 2014) ............................................ passim

EEOC v. Shell Oil Co.,

466 U.S. 54 (1984)........................................ passim

EEOC v. TriCore Reference Laboratories,

No. 15-mc-00046WJ, 2016 WL 6823516

(D.N.M. Feb. 8, 2016), aff’d, 849 F.3d

929 (10th Cir. 2017) .........................................4, 29

EEOC v. TriCore Reference Laboratories,

849 F.3d 929 (10th Cir. 2017).............. 3, 11, 25, 29

EEOC v. United Air Lines, Inc.,

287 F.3d 643 (7th Cir. 2002)..................................8

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002).................................... 8, 16, 17

viii

TABLE OF AUTHORITIES—Continued

Page(s)

McLane Co. v. EEOC,

137 S. Ct. 1159 (2017)..........................................24

Occidental Life Ins. Co. v. EEOC,

432 U.S. 355 (1977)................................................4

STATUTES AND REGULATIONS

18 U.S.C. § 1505 ........................................................32

28 U.S.C. § 1254(1)......................................................1

42 U.S.C. § 2000e-5 .....................................................1

42 U.S.C. § 2000e-5(a) .................................................4

42 U.S.C. § 2000e-5(b) ....................................... passim

42 U.S.C. § 2000e-5(f) .................................................5

42 U.S.C. § 2000e-5(f)(1) .......................................5, 13

42 U.S.C. § 2000e-6 ...............................................1, 31

42 U.S.C. § 2000e-6(c) ...............................................14

42 U.S.C. § 2000e-6(e) ...........................................4, 15

42 U.S.C. § 2000e-8 .....................................................1

42 U.S.C. § 2000e-8(a) ........................... 2, 5, 16, 18, 30

42 U.S.C. § 2000e-9 .................................................1, 5

29 C.F.R. § 1601.28(a)(3) ................................ 9, 12, 17

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

EEOC Compliance Manual, Sec. 22. 3,

§ 803 .....................................................................29

Equal Employment Opportunity Act of

1972, H.R. Rep. No. 92-238 (1971), as

reprinted in 1972 U.S.C.C.A.N. 2137 ..................14

OPINIONS BELOW

The district court’s opinion is reported at 102 F.

Supp. 3d 1037 (Pet. App. 19a-28a). The Seventh

Circuit’s opinion is reported at 867 F.3d 843 (Pet.

App. 1a-18a).

JURISDICTION

The Seventh Circuit denied Union Pacific’s

petition for rehearing en banc on November 21, 2017.

Pet. App. 29a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant portions of 42 U.S.C. §§ 2000e-5, 2000e6, 2000e-8, and 2000-e9 are reproduced at Pet. App.

30a-41a.

STATEMENT OF THE CASE

This case concerns the EEOC’s efforts to enforce

a subpoena against Petitioner Union Pacific Railroad

Company.

Two Union Pacific employees filed

charges with the EEOC alleging that they were

retaliated against for complaining about racist

comments by coworkers and alleged discrimination

in job assignments, and as a result were not

permitted to take a test for promotion to the

“Assistant Signal Person” position.

The EEOC

investigated their charges and took no action. After

receiving their right to sue notices from the agency,

the employees filed suit in federal court. That court

dismissed all their claims on summary judgment and

the Seventh Circuit affirmed. See Burks v. Union

Pac. R.R. Co., No 12 C 8164, 2014 WL 3056529 (N.D.

Ill. July 7, 2014), aff’d, 793 F.3d 694 (7th Cir. 2015).

Despite the final judicial resolution of their claims,

the EEOC sought to enforce a subpoena to Union

Pacific demanding nationwide information about,

among

other

things,

the

development,

administration, and results of the test that the

charging employees never took.

The Seventh Circuit’s decision to enforce that

subpoena deepens two existing circuit splits about

the scope of the EEOC’s investigative authority.

These are matters of national importance that merit

review by this Court.

First, the Seventh Circuit sided with the Ninth

Circuit and against the Fifth Circuit in an

acknowledged split concerning whether the EEOC

has authority to continue investigating charges of

discrimination after the complaining employee has

initiated litigation. Following the structure and

plain language of Title VII, the Fifth Circuit has

held that after litigation begins the EEOC is limited

to its statutory intervention rights. See EEOC v.

Hearst Corp., 103 F.3d 462 (5th Cir. 1997). The

Ninth Circuit disagrees. See EEOC v. Fed. Express

Co., 558 F.3d 842 (9th Cir. 2009). The Seventh

Circuit’s decision here aggravates that split by

holding that the agency can continue investigating a

charge, and issuing subpoenas, even after the charge

has been finally adjudicated meritless by the federal

courts.

Second, the Seventh Circuit’s decision also

deepens an existing conflict over the permissible

substantive scope of an EEOC subpoena. This Court

explained in EEOC v. Shell Oil Co. that “unlike

other federal agencies that possess plenary authority

to demand to see records relevant to matters within

their jurisdiction, the EEOC is entitled to access only

to evidence ‘relevant to the charge under

investigation.’” 466 U.S. 54, 64 (1984) (quoting 42

U.S.C. § 2000e-8(a)).

The Tenth and Eleventh

Circuits accordingly have rejected subpoenas seeking

nationwide information in response to a purely local

discrimination charge, or information about

employees who are not similarly situated and did not

experience the same allegedly unlawful employment

practice as the charging employee. See, e.g., EEOC

v. TriCore Reference Labs., 849 F.3d 929 (10th Cir.

2017); EEOC v. Royal Caribbean Cruises, Ltd., 771

F.3d 757 (11th Cir. 2014) (per curiam). The Seventh

and Sixth Circuits, by contrast, have embraced the

sweeping view that, since discrimination covered by

Title VII is “by definition class discrimination,” any

potential discrimination against other employees in

the same class is relevant and fair game for a

nationwide subpoena.

See EEOC v. Roadway

Express, Inc., 261 F.3d 634, 640 (6th Cir. 2001)

(citation omitted); EEOC v. Konica Minolta Bus.

Sols., 639 F.3d 366 (7th Cir. 2011). Here, the

Seventh Circuit allowed the EEOC to engage in a

nationwide fishing expedition into the possibility of

discrimination in the design or administration of a

written test—when the charging employees alleged

no such discrimination, and in fact never even took

that test.

Together, those errors give the EEOC precisely

the “plenary” investigative authority that this Court

has held Congress intended to withhold. They also

seriously undermine the intended structure of Title

VII. With no real temporal or substantive limits on

the agency’s investigative power, the statute’s

careful timeline for distinct stages of investigation,

conciliation and suit becomes meaningless. So do

Title VII’s separate provisions for a “Commissioner’s

charge” alleging a nationwide pattern or practice of

discrimination.

Indeed, the EEOC recently

acknowledged in other litigation that information

about the possibility of a broader pattern or practice

“was now being sought for all cases, including

individual charges of investigation”—a practice, the

court observed, that “does not appear to be justified

under any reading of the relevant case law.” EEOC

v. TriCore Reference Labs., No. 15-mc-00046WJ,

2016 WL 6823516, at *7 (D.N.M. Feb. 8, 2016), aff’d,

849 F.3d 929 (10th Cir. 2017).

This Court should grant review, resolve these

conflicts, and reaffirm that the EEOC’s subpoena

authority does not continue indefinitely and is

limited to the scope of the actual charge under

investigation.

Statutory Framework

The 1972 amendments to Title VII created what

this Court has called a “multistep enforcement

procedure.” Occidental Life Ins. Co. v. EEOC, 432

U.S. 355, 359 (1977). The process begins with a

charge of an “unlawful employment practice,” which

may be lodged by or on behalf of an “aggrieved”

employee or by one of the Commissioners

themselves, and may allege either individual

discrimination or a broader “pattern or practice.” 42

U.S.C. § 2000e-5(a), (b); see also id. § 2000e-6(e)

(transferring the Attorney General’s former power to

bring suit on “pattern or practice” claims to the

EEOC). The EEOC must “serve a notice of the

charge (including the date, place and circumstances

of the alleged unlawful employment practice)” on the

employer within 10 days. Id. § 2000e-5(b). Once a

charge has been filed, the EEOC may demand from

the employer documents and information “relevant

to the charge under investigation.” Id. § 2000e-8(a);

see id. § 2000e-9.

Within 120 days of the charge, the Commission

must determine if there is “reasonable cause” to

believe that “the charge is true.” Id. § 2000e-5(b). If

the EEOC does find “reasonable cause,” then it must

first attempt to eliminate the unlawful employment

practice through “informal methods” such as

“conference, conciliation, and persuasion.” Id. If

that fails, the EEOC may file suit. Id. § 2000e-5(f).

In the alternative, it may issue a right-to-sue letter

to allow the charging party to bring a private

action. Id. § 2000e-5(f)(1). If the Commission sues,

the aggrieved employee has a right to intervene. Id.

If the employee sues, the Commission can intervene

“upon certification that the case is of general public

importance.” Id.

Factual Background

In 2011, two former Union Pacific employees

filed unlawful employment practice charges with the

EEOC. Pet. App. 2a-3a. Both had been working at

Union Pacific for under a year as “Signal Helpers,”

an entry-level position, when that position was

eliminated and the two employees were furloughed.

Id. at 2a. Both alleged that their supervisors treated

them in a racially discriminatory manner. Id. at 2a3a. One employee alleged that his supervisor used a

racially charged phrase in his presence, though not

directed at him. Burks v. Union Pac. R.R. Co., No 12

C 8164, 2014 WL 3056529, *2 (N.D. Ill. July 7, 2014),

aff’d, 793 F.3d 694 (7th Cir. 2015). The other alleged

that his supervisor required him to work in

inclement weather due to his race.

Id.

The

employees complained to Union Pacific’s Equal

Employment Opportunity department, which found

no discrimination. Id. at *1-2. The employees

alleged that because they filed these complaints,

Union Pacific retaliated against them by not

allowing them to take a test for promotion to

“Assistant Signal Person.” Id. at *4.

Soon after they were furloughed, the employees

filed charges with the EEOC. Pet. App. 2a-3a. Both

charges state that the “latest” date of any

discrimination was October 10, 2011, when they

were furloughed because their jobs were eliminated

altogether. Id. at 45a, 48a. Neither charge checked

a box indicating that any discrimination was

“continuing.” Id. Neither alleges that they took a

test for promotion to Assistant Signal Person, or that

there is anything unlawful about that test. Id. at

45a-46a, 48a-49a. The EEOC subsequently granted

them right-to-sue letters and they filed suit in the

Northern District of Illinois. Id. at 4a. The district

court granted summary judgment and held that

there was no evidence of racial discrimination or

retaliation. See Burks, 2014 WL 3056529 at *6-7.

The Seventh Circuit affirmed. 793 F.3d at 703.

In January 2014, seven months before the

district court granted summary judgment, the EEOC

issued Union Pacific a request for information based

on the 2011 charges. Pet. App. 5a. Union Pacific

objected to the request, and the EEOC served Union

Pacific a subpoena in May 2014. Id. Though neither

employee actually took the test for Assistant Signal

Person, the subpoena sought detailed, company-wide

information about the development, administration,

and results of any tests for that position. Id. at 5a,

17a, 19a-20a; see also Decl. of Drake Van Thiel, Ex.

F ¶¶ k-q, EEOC v. Union Pac. R.R. Co., No. 2:14-mc0052 (E.D. Wis. Aug. 25, 2014), ECF No. 4-6. Union

Pacific again objected. Pet. App. 5a. Then, in

August 2014, six weeks after the district court

dismissed the employees’ case on the merits, the

EEOC filed suit to enforce the subpoena in the

Eastern District of Wisconsin. See id. at 19a.

Proceedings Below

Union Pacific moved to dismiss, arguing that

enforcing the subpoena after the employees brought

suit was contrary to the Fifth Circuit’s decision in

Hearst, and that the subpoena improperly sought

information that went substantially beyond, and was

not relevant to, the filed charges of discrimination.

Id. at 20a-23a. In particular, Union Pacific noted

that

the

subpoenas

sought

company-wide

information

about

the

development

and

administration of a test when neither charge alleged

any pattern or practice of discrimination or any

discrimination in the test itself. Id. at 25a, 45a-46a,

48a-49a.

The district court denied Union Pacific’s motion.

Acknowledging that only “two circuits ha[d] directly

addressed an issue similar to this one,” id. at 21a,

the court sided with the Ninth Circuit’s decision in

Federal Express over the Fifth Circuit’s decision in

Hearst in holding that “the EEOC may continue to

investigate a charge after the charging has filed suit

because ‘the EEOC is pursuing its obligation to serve

the public interest,’” id. at 22a. (quoting Fed.

Express, 558 F.3d at 852). The court acknowledged

that “the charges do not specifically allege a pattern

or practice” of discrimination related to the test, but

nonetheless held that the requested information was

sufficiently relevant to the charge because under

Seventh Circuit authority “race discrimination . . . is

by definition class discrimination” and therefore any

other potential race discrimination within Union

Pacific would (if discovered) be relevant. Id. at 26a

& n.3 (quoting EEOC v. United Air Lines, Inc., 287

F.3d 643, 653 (7th Cir. 2002)).

On appeal, the Seventh Circuit recognized that

this case presented it with an issue on which the

circuits are divided. Id. at 1a. The panel affirmed

and embraced the district court’s reasoning in toto.

See generally id. at 1a-18a. The panel expressly

rejected the Fifth Circuit’s holding that the

“‘integrated, multistep enforcement procedure’

established by Title VII” does not contemplate

continued investigation of an individual employee’s

charge after litigation has begun. Id. at 8a (quoting

Hearst, 103 F.3d at 468). Instead, it held that

enforcement of a subpoena required only a “valid”

charge meeting the “minimal” requirements of Title

VII, and that “while a valid charge is a requirement

for beginning an EEOC investigation, nothing in

Title VII supports a ruling that the EEOC’s

authority is then limited by the actions of the

charging individual.” Id. at 10a-11a.

The court of appeals also read EEOC v. Waffle

House, Inc., 534 U.S. 279 (2002), to reject any

suggestion that the EEOC’s investigative authority

is “merely derivative” of the charging employee’s

claim. Id. at 11a-12a (citation omitted). And it

reasoned that the 1972 “amendments to Title VII,

which granted the EEOC broader authority to

investigate

...

employment

discrimination,

expressly beyond the specific complaints of the

private charging individual,” supported the agency’s

ability to continue investigating even after the

charging employee’s claim has gone to litigation. Id.

at 12a; see also id. at 9a (citing Shell Oil for the

proposition that “the EEOC’s ability ‘to investigate

charges of systemic discrimination [should] not be

impaired’”).

Just as the Ninth Circuit had in Federal Express,

the panel also highlighted an EEOC regulation

which provides that a right to sue letter “shall

terminate further proceeding of any charge” unless

certain senior EEOC officials “determine[] . . . that it

would effectuate the purpose of Title VII, the ADA,

or GINA to further process the charge.” Id. at 13a

(quoting 29 C.F.R. § 1601.28(a)(3)).

The panel

acknowledged that the EEOC could pursue those

objectives through either “a Commissioner’s charge”

or “interven[tion] in the charging individual’s

lawsuit,” but held that “the availability of

alternative investigatory avenues hardly supports

limiting the EEOC’s use of its most effective

avenue.” Id. at 13a-14a. And it specifically held

that a facially valid charge allows the EEOC to

investigate indefinitely—even after the charging

employee’s claim has been dismissed on the merits

in court. Id. at 14a-16a.

The panel also affirmed the district court’s

conclusion that the scope of the subpoena was not

overbroad relative to the charge, noting that Union

Pacific’s objections were “premised on the same

overly narrow view of the role of the EEOC already

rejected in this opinion above.” Id. at 17a.

Union Pacific’s timely petition for rehearing en

banc was denied on November 21, 2017. Id. at 29a.

REASONS FOR GRANTING THE WRIT

As illustrated by this case and by its concessions

in other recent litigation, the EEOC believes that the

filing of any charge by an individual employee

inherently permits the agency to conduct a

nationwide “pattern or practice” investigation,

extending at least to the employer’s treatment of all

individuals in the same “class” and lasting

essentially forever—even after the charging

employee’s claim has been adjudicated meritless in

court. That position is plainly inconsistent with the

structure of Title VII and with this Court’s decision

in Shell Oil, which make clear that the EEOC’s

subpoena power is not “plenary” but extends only to

information relevant to the particular charge under

investigation, that EEOC investigations play an

important but time-limited role in a broader

structure of remedies, and that the EEOC has all the

authority it needs to investigate broader “systemic”

concerns through a Commissioner’s charge alleging a

pattern or practice of discrimination.

The Seventh Circuit’s decision here deepens a

square and acknowledged circuit split over whether

the EEOC may continue issuing subpoenas after

litigation has begun. The Fifth Circuit would have

refused enforcement of this subpoena on that ground

alone. See EEOC v. Hearst Corp., 103 F.3d 462, 46869 (5th Cir. 1997). It also presents a second, distinct

conflict concerning the permissible substantive scope

of a subpoena. The Seventh and Sixth Circuits have

taken the extraordinarily expansive view that

because all discrimination violating Title VII is

“class” based, any discrimination against members of

the same class would be relevant to the charge. The

Tenth and Eleventh Circuits, by contrast, have held

that a subpoena must be confined to “the contested

issues that must be decided to resolve that charge,”

and that the EEOC should use the Commissioner’s

charge process to investigate broader concerns.

EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d

757, 761 (11th Cir. 2014) (per curiam); EEOC v.

TriCore Reference Labs., 849 F.3d 929, 941-42 (10th

Cir. 2017); see also EEOC v. Burlington N. Santa Fe

R.R., 669 F.3d 1154, 1157-58 (10th Cir. 2012)

(“BNSF”). The Tenth and Eleventh Circuits would

not have permitted the EEOC to use purely

individual discrimination and retaliation charges as

a springboard to launch a nationwide investigation

into the development and administration of a test

that the charging employees did not even take.

These ongoing, unresolved conflicts as to the

reach of the EEOC’s investigative power mean

greater cost, confusion and uncertainty that

undermine a fair and efficient administration of the

nation’s discrimination laws. Only this Court may

resolve these deepening conflicts and restore a

measure of restraint and evenhandedness to EEOC

investigations. Review should be granted

I. REVIEW IS WARRANTED TO RESOLVE

THE CONFLICT OVER THE EEOC’S

AUTHORITY TO INVESTIGATE AFTER

LITIGATION COMMENCES

A. The Seventh Circuit’s Decision

Deepens An Acknowledged Circuit

Split About The EEOC’s Power To

Investigate After An Employee Files

Suit

The Seventh Circuit recognized that its holding

conflicts with the Fifth Circuit’s decision in Hearst.

Pet. App. 9a, 12a. Hearst reversed a district court’s

determination that the EEOC may enforce a

subpoena after the charging parties had initiated

litigation. Hearst, 103 F.3d at 463-64. The Fifth

Circuit reasoned that “Congress granted the EEOC

broad investigatory authority so that the agency

promptly and effectively could determine whether

Title VII had been violated, and to assist the agency

in its efforts to resolve disputes without formal

litigation.” Id. at 469. “These purposes are no

longer served,” the court explained, “once formal

litigation is commenced.” Id. “Instead, if the EEOC

has any further interest it may intervene and pursue

discovery through the courts; or if its interest

extends beyond the private party charge upon which

it is acting, it may file a Commissioner’s charge.” Id.

The Seventh Circuit rejected Hearst’s reasoning

and elected instead to follow the Ninth Circuit’s

decision in EEOC v. Federal Express Corp, 558 F.3d

842 (9th Cir. 2009). Federal Express held that the

EEOC may continue to investigate a charge

indefinitely, even after the charging party has filed

suit. See Pet. App. 9a. The Ninth Circuit deferred to

an EEOC regulation, 29 C.F.R. § 1601.28(a)(3),

which purports to allow the agency to continue

“process[ing]” charges after issuing right-to-sue

notices if EEOC officials determine that it would

“effectuate the purpose of title VII.” Fed. Express,

558 F.3d at 850 & n.2 (citation omitted). The court

of appeals concluded that “[b]y 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. at 852.

That conflict is square and acknowledged, and

there is no sound reason to defer this Court’s review.

B. The Fifth Circuit’s Decision In

Hearst Aligns Most Closely With The

Text And Purpose Of Title VII

The structure of Title VII strongly supports the

Fifth Circuit’s holding in Hearst.

As Justice

Marshall explained for this Court in EEOC v. Shell

Oil, the statute conspicuously “establish[es] a

linkage between the Commission’s investigatory

power and charges of discrimination.” 466 U.S. 54,

65 (1984). The EEOC’s role under Title VII is to

investigate charges, determine if they have merit,

attempt conciliation, and then either bring suit itself

or authorize the employee to do so. Once litigation

has begun, the EEOC’s investigative function ends

and its sole remaining role is the option to intervene

if believes the case raises issues “of general public

importance.” 42 U.S.C. § 2000e-5(f)(1).

This case brings the point into sharper focus. By

the time the EEOC sought to enforce this subpoena,

the suit by the charging employees had been

adjudicated and dismissed on the merits. Under a

statute that ties investigative authority tightly to

the particular charge under investigation, and does

not provide “plenary” investigative power, the EEOC

has no conceivable right to continue investigating

after the charge has been conclusively resolved.

There is no longer a lawsuit for the EEOC to

intervene in, and any new lawsuit by the EEOC

seeking personal relief for these two employees

would be barred by res judicata.

While the statutory text and its purpose are plain

enough, the legislative history of Title VII confirms

that Congress expected the EEOC’s role to end when

litigation begins. The House Report discussing the

1972 amendments observed that:

The committee was concerned about the

interrelationship between the newly created

cease and desist enforcement powers of the

Commission and the existing right of private

action. It concluded that the duplication of

proceedings should be avoided.

The bill,

therefore, contains a provision for termination

of Commission jurisdiction once a private

action has been filed (except for the power of

the Commission to intervene in the private

actions).

Equal Employment Opportunity Act of 1972, H.R.

Rep. No. 92-238, at 12 (1971), as reprinted in 1972

U.S.C.C.A.N. 2137, 2148. In order to ensure that

employers were not subject to overlapping discovery

requests on multiple timelines, Congress understood

that the Commission’s investigations would

“terminat[e]” once the employee initiates formal

litigation.

That conclusion certainly does not, as the Ninth

Circuit and Seventh Circuit apparently feared,

impair the EEOC’s ability to continue investigating

bona fide concerns about broader “systemic” or

“pattern or practice” discrimination revealed in the

course of an investigation into individual claims.

Title VII authorizes Commissioners to file their own

charges, including “pattern or practice” charges, and

plainly contemplates that they will use that

procedure. The 1972 amendments to Title VII also

conspicuously transferred to the EEOC the Attorney

General’s former power to bring suit to remedy any

“pattern or practice” of discrimination. See 42 U.S.C.

§ 2000e-6(c). In the section detailing the appropriate

“procedure” for such “[i]nvestigation and action by

[the] Commission,” Congress specified that after the

effective date of those amendments “the Commission

shall have authority to investigate and act on a

charge of a pattern or practice of discrimination,

whether filed by or on behalf of a person claiming to

be aggrieved or by a member of the Commission.”

Id. § 2000e-6(e) (emphasis added).

Congress clearly did not view this grant of

authority as superfluous, or the requirement of an

actual “charge of a pattern or practice of

discrimination” as optional.

And conducting

“pattern or practice” investigations under the

purported authority of a fully resolved and purely

individual charge also is inconsistent with the

broader structure of Title VII. Title VII requires the

EEOC to provide employers with “notice of the

charge . . . within ten days.” Id. § 2000e-5(b). Shell

Oil explained that the notice required is necessarily

less specific in “pattern or practice” investigations,

but nonetheless must at least “identify the groups of

persons that [the Commissioner] has reason to

believe have been discriminated against, the

categories of employment positions from which they

have been excluded, the methods by which the

discrimination may have been effected, and the

periods of time in which he suspects the

discrimination to have been practiced.” 466 U.S. at

72-73, 78-79. A charge that, like the one at issue

here, alleges only isolated discrimination against one

employee does not remotely provide the notice

required by statute. And as the Tenth Circuit has

noted, a letter later notifying the employer that the

EEOC has “expand[ed]” its investigation is no

substitute for the “notice of” the “charge” required by

statute. See BNSF, 669 F.3d at 1157.

The agency’s end-run around the Commissioner’s

charge process also effectively nullifies the statute’s

requirements that the EEOC attempt to eliminate

any “alleged unlawful employment practice” through

conciliation, that it reach a “reasonable cause”

determination within 120 days, and that any

subpoena be “relevant to the charge under

investigation.” 42 U.S.C. §§ 2000e-5(b), 2000e-8(a).

All of these provisions presume a “charge” of specific

“unlawful employment practice[s]” that the agency is

investigating, and can still act to remedy.

Both the Seventh Circuit here and the Ninth

Circuit in Federal Express concluded that this Court

implicitly rejected the Fifth Circuit’s Hearst decision

in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).

But Waffle House did no such thing.

Waffle House addressed whether the charging

employee’s agreement to arbitrate employment

disputes prevented the EEOC from bringing an

enforcement action in its own name. Id. at 285.

This Court held that it does not, reasoning that the

EEOC’s enforcement authority is not “merely

derivative” of the employee’s private right to sue. Id.

at 297-98.

The Seventh and the Ninth Circuits read far too

much into that statement by inferring that the

EEOC’s investigative power can be entirely divorced

from the resolution of the charging employee’s claim.

Unlike other federal agencies, the EEOC’s subpoena

power is expressly limited to information “relevant

to the charge under investigation.” Waffle House did

not cast doubt on this Court’s precedent that

Congress established a meaningful “linkage”

between the agency’s investigative power and the

particular charge under investigation, and did not

give the agency “plenary” power to investigate all

matters within the scope of its jurisdiction. Shell

Oil, 466 U.S. at 64-65. While Waffle House held that

the EEOC can file suit in some circumstances where

the employee could not, it never suggested that the

agency can investigate without a charge to

investigate. The text of Title VII, and this Court’s

decision in Shell Oil, clearly foreclose such a holding.

In addition, the employee in Waffle House had not

actually filed a suit or arbitration, and this Court

specifically reserved whether a final judgment

resolving the issues would preclude further EEOC

action—which is far more analogous to the issue

presented here. See 534 U.S. at 297 (noting that “[i]t

is an open question whether a settlement or

arbitration judgment would affect the validity of the

EEOC’s claim” but that the Court need not resolve

that question).

The Seventh and Ninth Circuits also pointed to

an EEOC regulation that purports to authorize

continued investigation, even after litigation begins,

if various EEOC officials determine that it would

“effectuate the purpose of title VII, the ADA, or

GINA.” 29 C.F.R. § 1601.28(a)(3). That regulation

has no grounding at all in the text or structure of

Title VII, and is facially ambiguous about what

exactly it means to authorize. In effect the Seventh

and Ninth Circuits have deferred to the EEOC’s

aggressive reading of its own regulation (in

litigation), see Federal Express, 558 F.3d at 850 n.2

(deferring under Auer v. Robbins, 519 U.S. 452

(1997)), without analyzing whether the resulting

rule is within the agency’s interpretive discretion

under Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). The

opportunity to correct such a careless application of

administrative deference principles is another

reason to grant review.

II. REVIEW ALSO IS WARRANTED TO

RESOLVE A CIRCUIT CONFLICT OVER

THE PERMISSIBLE SUBSTANTIVE SCOPE

OF AN EEOC SUBPOENA

In Shell Oil, this Court explained that the

relevance of information sought by an EEOC

subpoena is “generously construed” to include

information that may “cast light on” the charge. 466

U.S. at 68-69. Nonetheless, this Court cautioned

that “we must be careful not to . . . render[] that

requirement a nullity.” Id. at 69. The Seventh

Circuit’s decision in this case crosses that line, and

conflicts with decisions of the Tenth and Eleventh

Circuits.

A. The Sixth And Seventh Circuits Have

Adopted An Overbroad Standard For

Relevance That Gives The EEOC

Nearly Plenary Investigative Power

As the district court’s opinion makes clear, see

Pet. App. 26a & n.3, the Seventh Circuit’s holding

that the information sought here was “relevant to

the charge under investigation,” 42 U.S.C. § 2000e8(a), is grounded in prior precedent from both the

Seventh and Sixth Circuits holding

that

discrimination under Title VII “is by definition class

discrimination,”

and

that

therefore

any

discrimination against the same class of employees

would “cast light on” the charge and is fair game for

a subpoena. In practice, that principle has been

invoked to nullify any meaningful limits on the

EEOC’s investigations.

Sixth Circuit. The Seventh Circuit rule invoked

by the district court appears to have its origin in a

single phrase in the Sixth Circuit’s opinion in Blue

Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir.

1969). In that case, the employer fired seven black

employees in a two-week span, each of whom gave

detailed and identical accounts of their treatment.

Id. at 356. The employees alleged that not only were

they discharged due to their race, but that the

employer restricted employment opportunities

within the company generally by “maintaining a

discriminatory training and promotional program.”

Pet. App. 43a. As part of its investigation, the

EEOC requested information regarding “records

concerning every employee in every category of

employment,” not just information concerning the

fired employees. Blue Bell, 418 F.2d at 358. The

Sixth Circuit held that this information was relevant

to the charges of discrimination because

“[d]iscrimination on the basis of race is by definition

class discrimination,” and therefore “the existence of

patterns of racial discrimination in job classifications

or hiring situations other than those of the

complainants may well justify an inference that the

practices complained of here were motivated by

racial factors.” Id. On its face, that broadly stated

dictum suggests that because the existence of a

broader pattern or practice of racial discrimination

would support any charge of individual race

discrimination, the EEOC therefore is entitled to use

its subpoena power in the service of a nationwide

hunt for “pattern or practice” evidence in every

investigation. But it is important to recognize that

the actual facts of Blue Bell could not support such a

broad holding.

The charges the EEOC was

investigating in Blue Bell explicitly alleged a

widespread pattern or practice of discrimination by

the employer, touching every African American

employee in the company.

Nonetheless, in EEOC v. Cambridge Tile

Manufacturing Co., the Sixth Circuit clarified and

extended the Blue Bell holding in a way that broke

any real requirement of a linkage between the

investigation and the charge. 590 F.2d 205 (6th Cir.

1979) (per curiam). In Cambridge, an employee

alleged that she had been fired for refusing the

advances her male supervisor. Id. at 205. Two

months later, another employee alleged that she was

fired due to her race. Id. During its investigation of

those two charges, the EEOC uncovered “evidence of

possible sex discrimination in job classifications” and

demanded broad statistical information about job

classifications—despite the fact that the charge

alleging sex discrimination concerned the conduct of

a single employee. Id. at 205-06. Relying on the

quoted section of Blue Bell above, the Sixth Circuit

held that an employer’s sex discrimination in one

context will always be relevant to an employer’s sex

discrimination in another context. See id. at 206

(“‘[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 . . . discrimination.’” (second alteration in

original) (quoting Blue Bell, 418 F.2d at 358)).

Most recently in EEOC v. Roadway Express, Inc.,

the Sixth Circuit reaffirmed that:

The Blue Bell case clearly holds that the

EEOC is entitled to the evidence that it has

requested even though this evidence focuses

on the existence of patterns of racial

discrimination in job classifications or hiring

situations other than those that the EEOC’s

charge specifically targeted. The employer’s

pattern of action provides context for

determining whether discrimination has taken

place.

261 F.3d 634, 639 (6th Cir. 2001). In the Sixth

Circuit, therefore, it is settled law that the

possibility of any other discrimination by the

employer is sufficiently relevant to the “context” of

an individual investigation to support a subpoena—

at least if it would involve discrimination against

the same class of employees.

Seventh Circuit.

The Seventh Circuit has

followed the Sixth Circuit precedents and taken a

similarly expansive approach to relevance.

In EEOC v. Konica Minolta Business Solutions

U.S.A., Inc., the charge alleged that the employee’s

branch manager disciplined him for not meeting

sales quotas but did not discipline a similarly

situated non-black employee. 639 F.3d 366, 367 (7th

Cir. 2011). The employee also alleged that he was

fired for complaining about that disparate

treatment. Id. Once the EEOC began investigating,

it discovered that the company only had six black

employees (out of 120) and that all six worked in the

same facility. Id. The EEOC then decided to

investigate possible discrimination in hiring, and

subpoenaed information relating to applications for

employment at all of the company’s Chicago

facilities. Id. at 368.

Although acknowledging that the employee “was

not saying that Konica had refused to hire him,” the

Seventh Circuit reasoned that the absence of any

hiring-related charge “does not make hiring data

irrelevant.”

Id. at 369.

“When the EEOC

investigates a charge of race discrimination for

purposes of Title VII,” the Seventh Circuit reasoned,

“it is authorized to consider whether the overall

conditions in a workplace support the complaining

employee’s allegations.” Id. Relying on Sixth Circuit

precedent, the court of appeals held that “[r]acial

discrimination is ‘by definition class discrimination,’

and information concerning whether an employer

discriminated against other members of the same

class for the purposes of hiring or job classification

may cast light on whether an individual person

suffered discrimination.” Id. (citation omitted).

As in the Sixth Circuit, therefore, it has long been

settled law in the Seventh Circuit that the EEOC

may issue subpoenas investigating the possibility of

any discrimination by the employer, because such

discrimination, if found, would cast light on

essentially any individual discrimination charge.

The district court rested its decision enforcing the

subpoena in this case squarely on these principles.

See Pet. App. 25a-26a.

B. The Tenth And Eleventh Circuits

Have Rejected The View That Any

Individual Charge Authorizes A

Broad-Ranging Investigation, And

Would Not Have Enforced This

Subpoena

The Tenth and Eleventh Circuits have firmly

rejected the suggestion that any individual charge

authorizes the EEOC to subpoena broad-ranging

information about other employees and other

employment practices. Those circuits would not

have enforced the subpoena in this case.

Tenth Circuit. In the BNSF case, two job

applicants filed charges alleging that BNSF did not

hire them due to their perceived disabilities. 669

F.3d at 1155.

Both had been given offers of

employment contingent on passing a medical

screening procedure, and neither was hired. Id. The

EEOC sent the employer a letter explaining that it

had broadened its investigation to include possible

“pattern

and

practice

discrimination,”

and

demanding “any computerized or machine-readable

files . . . created or maintained by you . . . during the

period December 1, 2006 through the present that

contain electronic data about or effecting [sic]

current and/or former employees . . . throughout the

United States.”

Id. at 1155-56 (alterations in

original).

Consistent with the Sixth and Seventh Circuit

case law, the EEOC argued that the requested

information was sufficiently relevant because “[i]f a

pattern or practice of disability discrimination at

BSNF exists, the discrimination [the employees]

allegedly suffered would appear to be part of it.” Id.

at 1157 (first alteration in original) (citation

omitted). The Tenth Circuit disagreed, explaining

that “[a]ny act of discrimination could be a part of a

pattern and practice of discrimination, but not every

charge of discrimination warrants a pattern or

practice investigation,” and that “[a]s the Supreme

Court explained in Shell Oil Co., we should not

construe relevance so broadly as to render its

requirement a nullity.” Id. at 1157-58. The Tenth

Circuit explained that “[t]he subpoena focuses on the

charges filed by” the employees and that “[n]owhere

in the document is there any reference to any other

charge—by way of a reference to any other charging

party, an additional charge number, or anything

else—that might indicate that an additional charge

is at issue.” Id. at 1157. It also noted that the

EEOC’s “incredibly broad request for information”

amounted to a demand for “plenary discovery” into

the employer’s overall employment practices. Id. at

1157-58.

The Tenth Circuit emphasized that “[n]othing

prevents the EEOC from investigating the charges

filed by [the employees], and then—if it ascertains

some violation warranting a broader investigation—

expanding its search.

Alternatively, nothing

prevents the EEOC from aggregating the

information it possesses in the form of a

Commissioner’s Charge.”

Id. at 1159.

“But

nationwide recordkeeping data is not ‘relevant to’

charges of individual disability discrimination filed

by two men who applied for the same type of job in

the same state, and the district court did not abuse

its discretion in reaching that conclusion.” Id. 1

The Tenth Circuit recently applied a similarly

careful analysis in Tricore. The employee filed a

1 The fact that district court rulings on agency subpoenas

are reviewed for abuse of discretion does not minimize this

conflict. To the contrary, it makes it even more critical that

this Court’s guidance about the governing law be consistent

with the statute. And as this Court recently emphasized in

McLane Co. v. EEOC, EEOC subpoenas can still implicate pure

questions of law, and such questions are to be reviewed de

novo. 137 S. Ct. 1159, 1168 n.3 (2017). The logical leap

authorized by the Sixth and Seventh Circuit case law—that

because any discrimination against the same class of employee

would cast light on any individual charge, the EEOC always

has authority to subpoena nationwide information about all

employees—transforms the meaning of Title VII’s language

and is an error of law, not of discretion.

charge alleging that TriCore did not provide a

reasonable accommodation to her pregnancy. The

EEOC then notified TriCore that it was “expanding

the scope of its investigation” and demanded

information concerning all current and former

employees at TriCore who had ever been pregnant,

even if they had never requested an accommodation.

849 F.3d at 935.

The Tenth Circuit held that the EEOC had gone

too far. Applying its earlier decision in BNSF, the

Tenth Circuit noted that the EEOC’s subpoena

referenced only an individual charge that did not

allege any pattern or practice of discrimination, and

did not point to any other charge or charges

providing the statutory basis for a pattern or

practice investigation. Id. at 938-39. The Tenth

Circuit then held that information concerning

pregnant employees who had not requested

accommodations had “no apparent connection” to the

charge under investigation, and that the EEOC “did

not proffer any reason to support how such evidence

would support [the complaining employee’s] charge

beyond general assertions of relevancy.” Id. at 94142. The Tenth Circuit explained that a narrower

subpoena more tightly focused on the complaining

employee’s charge might be within the EEOC’s

power—such as an inquiry into whether “other nondisabled, pregnant employees were granted

accommodations”

whether

TriCore

gave

accommodations to non-pregnant employees but not

pregnant ones. Id.

Eleventh Circuit. In Royal Caribbean, a cruiseship employee filed a charge alleging that he was

discharged because of a medical condition. 771 F.3d

at 759. Royal Caribbean admitted as much, but

argued that Bahamian law, to which Royal

Caribbean ships were subject, required his

termination. Id. Despite this, the EEOC issued a

subpoena demanding company-wide information

regarding every employee discharged for any medical

reason. Id.

The Eleventh Circuit held that this information

was not relevant to the charge. “The relevance that

is necessary to support a subpoena for the

investigation of an individual charge is relevance to

the contested issues that must be decided to resolve

that charge, not relevance to issues that may be

contested when and if future charges are brought by

others.” Id. at 761.

C. The Tenth And Eleventh Circuits

Would Properly Refuse To Enforce

This Subpoena

The Tenth and Eleventh Circuits would reject the

subpoena here. Only by assuming that any racial

discrimination against any employee, anywhere,

automatically “‘casts light on’” every individual

charge of racial discrimination—as Sixth and

Seventh Circuit precedent invite—could the panel

find that information about the design of a test that

the charging employees never took is somehow

relevant to their charges. The Eleventh Circuit

would say that these charges raised no “contested

issues” about the fairness of the tests, and that the

EEOC was clearly using the charges as an

“expedient bypass” of the Commissioner’s charge

process.

Royal Caribbean, 771 F.3d at 761-62

(citation omitted). The Tenth Circuit would say that

the reality that “[a]ny act of discrimination could be

part of a pattern or practice of discrimination” does

not mean that every charge authorizes a nationwide

pattern or practice subpoena. BNSF, 669 F.3d at

1157-58. Data concerning results and development

of a test cannot possibly “cast light on” an allegation

that the employees were not permitted to take it—

unless those words impose no meaningful limits at

all. And nothing in the two charges the EEOC

purported to be investigating alleges any pattern or

practice of wrongdoing, let alone any pattern or

practice

the

development

and

administration of the test.

The language of Title VII and this Court’s

decision in Shell Oil strongly support the Tenth and

Eleventh Circuit approach to relevance in the

context of EEOC subpoenas.

By treating any

potential discrimination as relevant to any charge of

discrimination (at least within the same “class” of

employees), the Sixth and Seventh Circuits have

essentially given the EEOC the “plenary” authority

to investigate all matters within its jurisdiction that

Congress deliberately withheld.

Both the Tenth and Eleventh Circuits have

recognized that the EEOC’s practice of conducting

“pattern or practice” investigations with only an

individual charge is not consistent with the

structure of Title VII, or necessary to the statute’s

objectives. As the Eleventh Circuit noted in Royal

Caribbean, “[t]o the extent that the EEOC desires

this information so that it may advocate on behalf of

other

potential

victims

employment

discrimination, . . . [t]he Commission has the ability

to file a Commissioner’s charge alleging a pattern or

practice of discrimination that could support a

request for that information.” 771 F.3d at 762. The

EEOC may not, however, “enforce a subpoena in the

investigation of an individual charge merely as an

expedient bypass of the mechanisms required to file

a Commissioner’s charge.” Id. The Tenth Circuit

similarly admonished the agency in BNSF that

“nothing prevents the EEOC from aggregating the

information it possesses in the form of a

Commissioner’s Charge” if it wants to continue

investigating more broadly. 669 F.3d at 1159.

The fact that the underlying claims were

conclusively adjudicated by the time the subpoena

issued both underlines and aggravates the circuit

conflict. The Seventh Circuit never addressed how

any evidence could be “relevant to the charge under

investigation” if that same charge has been

conclusively resolved.

As discussed above, the

employer in Royal Caribbean admitted that it

terminated the employee because of his health

status. 771 F.3d at 759. The Eleventh Circuit had

no difficulty recognizing that the EEOC’s demand for

information about whether the employer “refused to

renew other employee[s’] contracts for the same

reason” could not possibly be relevant to any

contested issue in the complaining employee’s

charge, because for the charging employee “[t]hat

issue is settled.” Id. at 761. All of the issues once

raised by the charges here are “settled,” and the

subpoena ought to be unenforceable for that reason

alone.

III. THE CONFLICT AMONG THE CIRCUITS

IMPLICATES ISSUES OF NATIONAL

IMPORTANCE THAT MERIT REVIEW

The scope of the EEOC’s investigative authority

is a recurring issue of national importance. The

conflicts discussed above do not arise in the rare or

unusual case.

To the contrary, these issues

commonly affect businesses across the country

because the EEOC pursues sweeping investigations

untethered to particular charges as a matter of

course.

For example, the EEOC’s Compliance Manual

apparently permits investigators to investigate

“[l]ike and related class allegations involving

bases/issues not directly affecting the charging party

as well as like and related issues not alleged in the

charge” whenever doing so is authorized by the

agency’s “Top Management Committee.”

See

TriCore, 849 F.3d at 935 n.2 (quoting EEOC

Compliance Manual, Sec. 22. 3, § 803). And the

EEOC appears to be routinely using individual

charges as a springboard for open-ended inquiries

about possible patterns or practices nationwide,

without following the procedures that Title VII

established. EEOC counsel conceded as much to the

district court in EEOC v. TriCore Reference

Laboratories, which noted that the agency’s “position

does not appear to be justified under any reading of

the relevant case law because it moots out the need

for any showing of relevancy.” No. 15-mc-00046WJ,

2016 WL 6823516, at *7 (D.N.M. Feb. 8, 2016), aff’d,

849 F.3d 929 (10th Cir. 2017). Another district court

recently explained that it could “reach no other

conclusion but that what the EEOC improperly

seeks by subpoena in this case is the discovery of

members of a potential class of employees who

suffered from a pattern or practice of discrimination

. . . rather than information which fleshes out [the]

charge.” EEOC v. Austal USA, LLC, Misc. No. 1700006-WS-MU, 2017 WL 4563078, at *10 (S.D. Ala.

Aug. 18, 2017), recommendation adopted as op. at

2017 WL 4562634 (S.D. Ala. Oct. 12, 2017). Just as

in Royal Caribbean, the Austal decision explains

that “if, as is apparent in this case, the EEOC

desires to conduct a broader pattern-or-practice

investigation, it is empowered to file a

Commissioner’s charge. What it cannot do is use

Cooper’s charge as a backdoor means to obtain

information that is more appropriately available

through other administrative vehicles.” Id.

If the reasoning of the Seventh Circuit decision

stands, then any allegation of discrimination gives

the agency a license to issue nationwide subpoenas

long after the underlying individual charges have

been adjudicated invalid, and that are not confined

to the employment practice that the charging

employee experienced and claimed was unlawful. As

a practical matter, that holding effectively nullifies

much of the structure that Congress carefully

constructed in Title VII. The agency’s investigation

need not be confined to information genuinely

“relevant to the charge under investigation.” 42

U.S.C. § 2000e-8(a). The requirement that a charge

must be filed “by or on behalf of a person claiming to

be aggrieved” by a particular “unlawful employment

practice” becomes meaningless, because the agency

can investigate any suspected practices whether

they aggrieved, or even affected, any charging

employee. See id. § 2000e-5(b). The timeline that

Congress established for the EEOC’s investigations,

reasonable cause determinations, and enforcement

actions (or “right to sue” letters) becomes largely

optional,

since

the

agency

may

continue

investigating as long as it likes. The statutory

requirement that the EEOC attempt conciliation

before judicial enforcement proceedings is effectively

gutted, because the EEOC has no obligation to

conciliate allegations that are not actually the

subject of a charge.

Id. § 2000e-5(b) (“If the

Commission determines after such investigation that

there is reasonable cause to believe that the charge

is true, the Commission shall endeavor to eliminate

any such alleged unlawful employment practice by

informal methods of conference, conciliation, and

persuasion.”). And there will be no reason for the

agency ever to use the “Commissioner’s charge”

procedure that Congress clearly intended to guide

pattern or practice investigations. Id. §§ 2000e-5(b),

2000e-6.

As the Tenth Circuit explained in BNSF and

TriCore, the EEOC’s position also effectively guts

the statute’s notice requirement. That is a serious

problem, both in practical terms and as a violation of

Congress’s obvious intent in Title VII. The statute

specifically requires notice of the charge within ten

days, “including the date, place and circumstances of

the alleged unlawful employment practice.” Id.

§ 2000e-5(b). This Court’s decision in Shell Oil

makes clear that the notice provision applies to

“pattern or practice” investigations no less than to

investigations of individual charges, and that the

EEOC must at least “identify the groups of persons

that [the Commissioner] has reason to believe have

been discriminated against, the categories of

employment positions from which they have been

excluded, the methods by which the discrimination

may have been effected, and the periods of time in

which he suspects the discrimination to have been

practiced.” 466 U.S. at 73, 78-79. This Court

contemplated, in other words, that the employer

would receive notice of an actual Commissioner’s

charge alleging an actual pattern or practice of

discrimination—not just a letter suggesting that the

EEOC has “expanded” its investigation and

demanding

broad

categories

nationwide

information without any “charge” at all. As the

Tenth Circuit recognized in BNSF, notice of the

agency’s desire for some information plainly is not

the “notice of” the “charge” that Title VII requires.

See BNSF, 669 F.3d at 1157.

These conflicts have great practical significance

for affected businesses nationwide. They create a

situation in which the basic questions of when an

EEOC investigation ends, and what it may

subpoena, have completely different answers for a

business in Chicago or San Francisco than for a

business in Houston or Denver—and no clear answer

at all for businesses operating nationwide. Union

Pacific itself has substantial operations in the Fifth,

Seventh, Ninth, and Tenth Circuits, and is therefore

subject to two starkly conflicting legal regimes

simultaneously.

This problem has serious

implications for businesses that must, for example,

decide how to identify potentially relevant

documents and how long to preserve them, upon

pain of potential obstruction charges. See, e.g., 18

U.S.C. § 1505 (criminalizing obstruction of any

pending proceeding before an agency). The EEOC

was created to ensure vigorous, consistent, and

uniform enforcement of Title VII across the country.

This Court’s intervention is needed to restore the

procedures that Congress intended.

CONCLUSION

For the reasons set forth above, the petition for

certiorari should be granted.

Respectfully submitted,

E. KING POOR

QUARLES & BRADY LLP

300 N. LaSalle Street

Suite 4000

Chicago, IL 60654

(312) 715-5000

J. SCOTT BALLENGER

Counsel of Record

WILLIAM M. FRIEDMAN

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

scott.ballenger@lw.com

Counsel for Petitioner

February 16, 2018

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for

the

Seventh

Circuit,

Equal

Employment Opportunity Commission v.

Union Pacific Railroad Company, 867

F.3d 843 (7th Cir. 2017) .....................................1a

Decision and Order of the United States

District Court for the Eastern District of

Wisconsin Denying Respondent’s Motion

Dismiss,

Equal

Employment

Opportunity Commission v. Union Pacific

Railroad Company, 102 F. Supp. 3d 1037

(E.D. Wis. 2015) ................................................19a

Order of the United States Court of Appeals

for the

Seventh Circuit

Denying

Rehearing,

Equal

Employment

Opportunity Commission v. Union Pacific

Railroad Company, No. 15-3452 (7th Cir.

Nov. 21, 2017) ...................................................29a

42 U.S.C. § 2000e-5 .................................................30a

42 U.S.C. § 2000e-6 .................................................36a

42 U.S.C. § 2000e-8 .................................................40a

42 U.S.C. § 2000e-9 .................................................41a

Brief of Appellee, Blue Bell Boots, Inc. v.

Equal

Employment

Opportunity

Commission, No. 18,924 (7th Cir. Nov. 29,

1968) (excerpt) ..................................................42a

Page

Charge of Discrimination by Frank Burks,

dated Oct. 31, 2011 (7th Cir. filed Sept.

19, 2016), ECF No. 17 .......................................44a

Charge of Discrimination by Cornelius L.

Jones, Jr., dated Nov. 4, 2011 (7th Cir.

filed Sept. 19, 2016), ECF No. 17 .....................47a

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Petitioner-Appellee,

UNION PACIFIC RAILROAD COMPANY,

Respondent-Appellant.

No. 15-3452

Argued February 6, 2017

Decided August 15, 2017

867 F.3d 843

OPINION

CONLEY, District Judge.

Union Pacific Railroad challenges the legal

authority of the Equal Employment Opportunity

Commission to continue an enforcement action after

issuing a right to sue letter and subsequent

resolution

the

underlying

charges

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 authority to maintain the

investigation under Title VII and the EEOC’s own

regulations, the district court granted the petition,

prompting this appeal. While an issue of first

impression in this circuit, similar challenges have

created a split in authority 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 promoting the public interest by preventing

employment discrimination under Title VII,

including its independent authority to investigate

charges of discrimination, especially at a companywide 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 originally 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 entry-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

orientation group. After a 90-day probationary

period, both became eligible for possible promotion to

an “Assistant Signal Person” position. In June 2011,

Jones applied to take the Skilled Craft Battery Test

(“SCBT” or “the test”), a requirement 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 provided 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 Assistant Signalman position. On or about

October 10, 2011, I was discharged again. 1 I believe

that I have been discriminated 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 statement, 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 are the only applicants who applied

but were not administered the tests. Of the other

four applicants, none were promoted, although the

table does not state the reason.

In March 2012, the EEOC sent Union Pacific its

first request 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 information about

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

termination. Burks returned to work in May 2011.

persons who sought the Assistant Signalman

position during the relevant period. After Union

Pacific refused 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

parties 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 promised 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, asserting 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 motion for summary judgment in the Jones

and Burks’ lawsuit, finding insufficient evidence to

support their claims of hostile work environment,

retaliation for filing prior EEOC complaints, 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 district 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 appeal.

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 Pacific’s motion to

dismiss, rejecting its arguments that the EEOC lost

its investigatory authority either (1) after the

issuance 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 relevance of

the material requested and granted the EEOC’s

motion to enforce its subpoena.

This appeal

followed.

II. Discussion

The appeal actually presents two issues. The

first is a question of law—whether the EEOC is

authorized by statute to continue investigating an

employer by seeking enforcement of its subpoena

after issuing a notice of right-to-sue to the charging

individuals and the dismissal of the individuals’

subsequent 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, 197

L.Ed.2d 500 (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 enforcement of private

rights.” Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318,

326, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)

(discussing 42 U.S.C. § 2000-5(f)(1)). Indeed, this

amendment expressly recognized that the EEOC’s

critical

role

preventing

employment

discrimination extends 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

preventing

employment

Jurisdiction over the EEOC’s petition for enforcement

of the subpoena 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 agencies.

See EEOC v. Watkins Motor Lines, Inc., 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.

discrimination.” Id. at 326, 100 S.Ct. 1698; see also

EEOC 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 matters 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, 104 S.Ct. 1621, 80 L.Ed.2d 41 (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”).

Union 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 employment 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-tosue letter, and even if the EEOC’s authority

extended beyond the issuance of the right-to-sue

letter, any investigatory authority surely ended

when the district court granted judgment in Union

Pacific’s favor on the individuals’ claims themselves.

As mentioned, whether the issuance of a right-tosue 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-tosue letter; in contrast, in EEOC 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 allegations 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 enforcement procedure’

established by Title VII is divided into four distinct

stages: filing and notice of charge, investigation,

conference

and

conciliation,

and,

finally

enforcement.”

Hearst, 103 F.3d at 468 (citing

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359,

97 S.Ct. 2447, 53 L.Ed.2d 402 (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 continue an investigatory role by either

intervening in an individual’s lawsuit, by pursuing

discovery or by filing a Commissioner’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 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.

the contrary, if you read the entire Hearst opinion,

particularly “Section A,” which deals with whether

the subpoena was untimely, 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,

has

been

rendered

practically

meaningless.”); see also Federal Express, 558 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 insufficient (if not

irrelevant) basis to assess the statutory authority

vested in the EEOC to investigate in parallel or

independently, especially in light of the EEOC’s

broad obligation to the public interest. Cf. Shell Oil,

466 U.S. at 69, 104 S.Ct. 1621 (cautioning that the

EEOC’s ability “to investigate charges of systemic

discrimination 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

holding, concluding that the text of Title VII, and

more recent Supreme 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 individual or by an EEOC

Commissioner, § 2000e-5(b), (e); (2) initiating an

investigation of the charge by the EEOC, § 2000e-

10a

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-tosue 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

requirements of 42 U.S.C. § 2000e-5(b) to serve as a

“prerequisite to judicial enforcement of a subpoena

issued by the EEOC.” Shell Oil, 466 U.S. at 65, 104

S.Ct. 1621. 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, 104 S.Ct. 1621 (quoting 42 U.S.C. § 2000e5(b)). The applicable regulations further provide that

a charge must contain “[a] clear and concise

statement of the facts, including the pertinent dates,

constituting the alleged unlawful employment

practices.”

Id.

(quoting

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

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 action, though it would doom any

enforcement action.

11a

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 investigatory authority

to the 180-day window it has to issue a notice of

right-to-sue letter if requested by the charging

individual. Moreover, while a valid charge is a

requirement for beginning an EEOC investigation,

nothing in Title VII supports 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 Supreme Court also considered

whether an arbitration agreement with the charging

individual would bar the EEOC from pursuing

victim-specific judicial relief on behalf of that

employee. See EEOC v. Waffle House, Inc., 534 U.S.

279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). In

holding that the charging individual’s agreement to

arbitrate did not bar further action on the part of the

EEOC, the Supreme 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, 122 S.Ct. 754.

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

12a

role is “merely derivative” of the charging individual.

Id. at 297, 122 S.Ct. 754.

Following Waffle House, this court similarly held

in Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir.

2009), that the withdrawing 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 Austin 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 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 initiate enforcement

actions to address employment discrimination,

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-orpractice investigation that might lead to relief for

many persons in addition to [the charging

individual].” 553 F.3d at 597. Accordingly, the

EEOC has subsequently adopted a regulation that

expressly contemplates the continuation of an

investigation after the issuance of a notice of rightto-sue.

13a

Issuance of a notice of right to sue shall

terminate further proceeding of any

charge that is not a Commissioner

charge unless the District Director;

Field Director; Area Director; Local

Director; Director of the Office of Field

Programs or upon delegation, the

Director

Field

Management

Programs; or the General Counsel,

determines 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

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) intervene in

the charging individual’s lawsuit. 6 However, the

While Union Pacific challenges whether this regulation

is entitled to Chevron deference based on its contrary

construction of Title VII, “[t]he EEOC’s interpretation of its

own rules is entitled to deference.” Shell Oil, 466 U.S. at 74

n.28, 104 S.Ct. 1621. Regardless, since the court has already

rejected Union Pacific’s construction, this challenge completely

fails to get off the ground.

“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 purpose of a

Commissioner’s charge is “to initiate an investigation where an

14a

availability of alternate investigatory avenues

hardly supports limiting the EEOC’s use of its most

effective avenue, especially given that both

alternatives could undermine the full investigatory

authority of the EEOC.

For example, a

Commissioner’s charge filed after issuance of a

notice of right-to-sue may be deemed untimely, see

Watkins, 553 F.3d at 598, or limitations on discovery

may be imposed in the charging individual’s lawsuit,

see Fed. R. Civ. P. 26(b)(1). In light of the absence of

any textual support in Title VII for appellant’s

position, the EEOC’s adoption of a regulation that

expressly contemplates 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 issuance of a right-to-sue letter does not bar

further investigation 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

individual is unwilling to file the charge for fear of retaliation

by the employer” (internal citation omitted)).

15a

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, 122 S.Ct. 754. The

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

For example, the charge of a larger pattern or practice

of discrimination obviously extends beyond the interests of the

two charging individuals.

16a

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 immediately below. And, although of

little solace to Union Pacific here, the EEOC itself

describes the continuation of its own investigation

after the issuance of a right-to-sue notice as unusual

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 subpoena, and any civil actions brought

by the charging individuals in determining whether

the subpoena poses an undue burden. See McLane,

137 S.Ct. at 1170.

B. Relevance

Under Title VII, the EEOC is authorized to

examine and copy “any evidence . . . relevant to the

charge under investigation,” 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 intended to be

“especially constraining.” 466 U.S. at 68, 104 S.Ct.

1621; see also United Air Lines, 287 F.3d at 652

(describing the burden as “not particularly onerous”).

17a

Rather, “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, 104 S.Ct. 1621.

Still, “[t]he

requirement of relevance, like the charge

requirement itself, is designed to cabin the EEOC’s

authority and prevent ‘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 promotion to Assistant

Signalman were turned down for a promotion.

Based on this, the EEOC sought additional

information about the test being administered to

become eligible for promotion and the successful and

unsuccessful applicants, including 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 the

allegations against the employer,” thus satisfying

the relevance requirement, or at least the district

court did not abuse its discretion in so finding. 8

As the Supreme Court reiterated recently in McLane

Co. v. EEOC, 581 U.S. ––––, 137 S.Ct. 1159, 197 L.Ed.2d 500

(2017), “[i]f the charge is proper and the material requested is

relevant, the district 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.” Id. at 1170 (quoting Shell Oil, 466 U.S. at 72

18a

Accordingly, the district court’s order enforcing the

subpoena is AFFIRMED.

n.26, 104 S.Ct. 1621). While Union Pacific argued to the

district court that the petition should be dismissed because the

EEOC unreasonably 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 refusing to provide

information requested in the EEOC’s first and second

subpoena.

19a

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Petitioner,

UNION PACIFIC RAILROAD COMPANY,

Respondent.

Case No. 14–mc–0052.

Signed May 1, 2015

102 F. Supp. 3d 1037

DECISION AND ORDER

LYNN ADELMAN, District Judge

This is an action to enforce an administrative

subpoena. Before me now is respondent’s motion to

dismiss.

In 2011, Frank Burks and Cornelius Jones

(“complainants”) filed charges of discrimination with

the Equal Employment Opportunity Commission

(“EEOC”) alleging that their former employer,

respondent Union Pacific Railroad Company,

discriminated and retaliated against them in

violation of Title VII of the Civil Rights Act of 1964

by denying them the opportunity to take a test for

the Assistant Signal Person position. The EEOC

began investigating the charges and as part of their

investigation issued a request for information to

Union Pacific on January 28, 2014, requesting

information about Union Pacific’s data and software

systems that store personnel information as well as

information about Union Pacific’s assessment

program for Assistant Signal Person applicants in

20a

2011. Union Pacific refused to produce the

information, and the EEOC issued a subpoena on

May 15, 2014. Union Pacific responded by filing a

petition to revoke or modify the subpoena with the

EEOC, which was denied on June 30, 2014. When

Union Pacific still refused to comply, the EEOC filed

this application for an order enforcing their

subpoena. 1

At some point during the EEOC investigation,

the

EEOC

issued

right-to-sue

notices

complainants, who sued Union Pacific in the

Northern District of Illinois for Title VII violations.

On July 7, 2014, the judge in that case granted

Union Pacific’s motion for summary judgment and

dismissed the case. Union Pacific has filed a motion

to dismiss this subpoena enforcement action,

arguing that the EEOC no longer has authority to

investigate the charges because it issued right-to-sue

notices and the complainants have lost their civil

suit based on the same charges, and alternatively

that the subpoena seeks information not relevant to

the charges.

“Subpoena enforcement proceedings are designed

to be summary in nature.” E.E.O.C. v. United Air

Lines, Inc., 287 F.3d 643, 649 (7th Cir.2002)

(quotation and citation omitted). I will enforce the

EEOC’s subpoena as long as it “seeks reasonably

relevant information, is not too indefinite, and

relates to an investigation within the agency’s

This is the second subpoena the EEOC has sought to

enforce during its investigation of these charges. See E.E.O.C.

v. Union Pac., No. 13–mc–0022 (E.D.Wis.). In the first

enforcement action, the parties reached an agreement after I

denied Union Pacific’s motion to dismiss for improper venue.

21a

authority.” E.E.O.C. v. Quad/Graphics, Inc., 63

F.3d 642, 645 (7th Cir.1995). Union Pacific first

asserts that I should dismiss this action because the

EEOC’s continued investigation is outside its

authority. See E.E.O.C. v. Sidley Austin Brown &

Wood, 315 F.3d 696, 700 (7th Cir.2002) (“[A]

subpoena may be challenged as unreasonable . . . [if]

the agency clearly is ranging far beyond the

boundaries of its statutory authority.”). Specifically,

Union Pacific argues that the issuance of the rightto-sue notices and the civil judgment in favor of

Union Pacific divest the EEOC of its investigative

authority.

Only two circuits have directly addressed an

issue similar to this one. The Fifth Circuit in

E.E.O.C. v. Hearst Corporation concluded that “in a

case where the charging party has requested and

received a right-to-sue notice and is engaged in a

civil action that is based upon the conduct alleged in

the charge filed with the EEOC, that charge no

longer provides a basis for EEOC investigation”. 103

F.3d 462, 469–70 (5th Cir.1997). In support of its

conclusion, the Fifth Circuit stated that “Congress

granted the EEOC broad investigatory authority so

that the agency promptly and effectively could

determine whether Title VII had been violated and

to assist the agency in its efforts to resolve disputes

without formal litigation” and that “[t]hese purposes

are no longer served once formal litigation is

commenced.” Id. at 469.

The Ninth Circuit, however, came to the opposite

conclusion in E.E.O.C. v. Federal Express

Corporation, holding that “the EEOC retains the

authority to issue an administrative subpoena

against an employer even after the charging party

22a

has been issued a right-to-sue letter and instituted a

private action based upon that charge.” 558 F.3d

842, 854 (9th Cir.2009). The Ninth Circuit disagreed

with the reasoning in Hearst, emphasizing that “the

EEOC controls the charge regardless of what the

charging party decides to do” and concluding that

the EEOC may continue to investigate a charge after

the charging party has filed suit because “the EEOC

is pursuing its obligation to serve the public

interest.” Id. at 852–53. 2

I find the reasoning of Federal Express to be more

persuasive and conclude that the issuance of rightto-sue notices, complainants’ civil suit, and the

judgment in favor of Union Pacific do not divest the

EEOC of authority to continue its investigation.

First, no federal statute or regulation supports

Union Pacific’s argument that the EEOC’s authority

to investigate a charge ends at a certain point,

whether that be at the issuance of a right-to-sue

notice, the commencement of private litigation, or

the conclusion of private litigation. Id. at 854

(“[N]othing in section 706(f)(1) of Title VII indicates

that the EEOC’s investigatory powers over a charge

cease when the charging party files a private action.”

(citing 42 U.S.C. § 2000e–5(f)(1))). Title VII requires

the EEOC to investigate a charge, 42 U.S.C.

§ 2000e–5(b), which includes the power to issue

administrative

subpoenas,

§ 2000e–9,

and

Both Hearst and Federal Express involved situations

where the charging party had filed suit but the suit had not yet

been resolved, which is different than the situation in this case,

where Union Pacific has obtained a judgment in its favor. No

circuit has addressed whether a judgment in private litigation

on the underlying charges divests the EEOC of authority to

investigate.

23a

regulations make clear that the EEOC may continue

an investigation after issuing a right-to-sue notice if

an EEOC official “determines at that time or at a

later time that it would effectuate the purpose of

title VII . . . to further process the charge,” 29 C.F.R.

§ 1601.28(a)(3), which the EEOC’s District Director

did in this case. “Absent textual support for a

contrary view, it is in the [EEOC’s] province—not

that of the court—to determine whether public

resources should be committed” to continued

investigation. E.E.O.C. v. Waffle House, Inc., 534

U.S. 279, 291–92, 122 S.Ct. 754, 151 L.Ed.2d 755

(2002).

Second, the EEOC does not simply represent the

interests of private parties; it also represents the

public interest independent of the complainants’

interests. See id. at 291, 122 S.Ct. 754 (“The statute

clearly makes the EEOC the master of its own case

and confers on the agency the authority to evaluate

the strength of the public interest at stake.”).

Further, neither arbitration nor a settlement

between complainant and the employer divests the

EEOC of its authority to investigate. See E.E.O.C. v.

Watkins Motor Lines, Inc., 553 F.3d 593, 597 (7th

Cir.2009) (“[I]f arbitration or . . . a given employee’s

failure to exhaust his remedies does not foreclose

independent investigation by the EEOC, neither

does a settlement.”). Thus, “the [EEOC’s] powers are

independent of any resolution between employer and

employee,” id., and I conclude that this includes

private litigation that ends in judgment in favor of

the employer.

It also is irrelevant that the charges in this case

allege only individual discrimination rather than a

pattern or practice of discrimination. Union Pacific

24a

seems to argue that because complainants’ charges

allege individual instances of discrimination rather

than a pattern of discrimination, the EEOC’s

independent public interest is not implicated and its

investigation must be confined to the individual

instances of discrimination. Thus, the argument

follows, the EEOC has no authority in this case to

continue to investigate because the individual claims

have already been litigated and the charges do not

implicate any broader interest. I disagree. Title VII

invests the EEOC with broad authority to

investigate valid charges of discrimination, E.E.O.C.

v. Shell Oil Co., 466 U.S. 54, 71–72, 104 S.Ct. 1621,

80 L.Ed.2d 41 (1984), and to bring a lawsuit based

on that investigation. 42 U.S.C. § 2000e–5(f)(1).

“The permissible scope of an EEOC lawsuit is not

confined to the specific allegations in the charge;

rather, it may extend to any discrimination like or

related to the substance of the allegations in the

charge and which reasonably can be expected to

grow out of the investigation triggered by the

charge.” E.E.O.C. v. Delight Wholesale Co., 973 F.2d

664, 668 (8th Cir.1992); see also Watkins Motor

Lines, Inc., 553 F.3d at 597 (“The [EEOC] is entitled

to vindicate the interests of all employees.”);

E.E.O.C. v. Tempel Steel Co., 723 F.Supp. 1250,

1252–53 (N.D.Ill.1989) (“The EEOC’s role in the

claims process is to investigate a claim thoroughly

and reasonably and remedy any unlawful

discrimination that it uncovers.”). It follows that the

scope of an EEOC investigation also encompasses

areas that reasonably grow out of the investigation.

See United Air Lines, 287 F.3d at 653 (“[E]vidence

concerning employment practices other than those

specifically charged by complainants may be sought

25a

by an EEOC administrative subpoena.”). Because

the EEOC’s investigation can encompass more than

complainants’ individual claims, the summary

judgment decision in favor of Union Pacific does not

deprive the EEOC of continuing authority to

investigate the charges. E.E.O.C. v. Von Maur, Inc.,

No. 09–mc–020, at 12 (S.D.Iowa Sept. 9, 2009). This

conclusion is further supported by the legislative

purpose behind the EEOC’s authority. See Shell Oil,

466 U.S. at 69–70, 104 S.Ct. 1621 (stating that “

‘[u]nrelenting broad-scale action against patterns or

practices of discrimination’ was essential if the

purposes of Title VII were to be achieved” (quoting

H.R.Rep. No. 92–238 pp. 8, 14 (1971), 1972

U.S.C.C.A.N. 2137, 2149)).

Union Pacific also asserts that even if the EEOC

has authority to investigate, I should dismiss this

action because the subpoena seeks information that

is not reasonably relevant to the charges, arguing

that the charges allege individual instances of

discrimination, not a pattern or practice, and thus

the subpoena, which seeks information unrelated to

the individual complainants’ employment history, is

not relevant. “[U]nlike other federal agencies that

possess plenary [investigative] authority . . ., the

EEOC is entitled to access only evidence ‘relevant to

the charge under investigation.’” Id. at 64, 104 S.Ct.

1621 (quoting 42 U.S.C. § 2000e–8(a)). However,

this limitation is “not especially constraining. Since

the enactment of Title VII, courts have generously

construed the term ‘relevant’ and have afforded the

[EEOC] access to virtually any material that might

cast light on the allegations against the employer.”

Id. at 68–69, 104 S.Ct. 1621. Evidence concerning

employment decisions regarding employees other

26a

than the individual complainants or employment

practices other than those specifically complained

about in the charges may be relevant. See United

Air Lines, 287 F.3d at 653 (citing with approval Blue

Bell Boots, Inc. v. E.E.O.C., 418 F.2d 355 (6th

Cir.1969) and E.E.O.C. v. Roadway Express, Inc.,

750 F.2d 40, 43 (6th Cir.1984)). The EEOC’s burden

in showing that the evidence they seek is relevant to

the charge is not onerous. Id. at 652.

I have already concluded that the scope of the

EEOC’s investigation may encompass a pattern or

practice of discrimination if evidence of such a

pattern reasonably grew from the original charges.

Here, the EEOC received two separate charges from

black men which alleged that they were denied

promotion opportunities because of their race.

During the course of the investigation, the EEOC

also learned that of the ten Assistant Signal Person

positions Union Pacific filled in complainants’

district in 2011, none of those promoted were black.

Thus, the EEOC is justified in seeking evidence

related to a pattern or practice of discrimination

despite the fact that the charges do not specifically

allege a pattern or practice, and I conclude that such

evidence is relevant to the charges. 3

Union Pacific also argues that I should dismiss

this action because the subpoena “seeks an

extraordinary amount of information.” Union Pac.’s

Reply Mem. at 4 (ECF No. 12). I may only modify or

I also note that the charges allege race discrimination,

which is “‘by definition class discrimination,’” United Air Lines,

287 F.3d at 653 (quoting Blue Bell Boots, 418 F.2d at 358),

further justifying the EEOC’s investigation of a pattern or

practice of discrimination.

27a

exclude portions of the subpoena if Union Pacific

“carries the difficult burden of showing that the

demands are unduly burdensome or unreasonably

broad.” F.T.C. v. Shaffner, 626 F.2d 32, 38 (7th

Cir.1980); see also United Air Lines, 287 F.3d at 653.

Union Pacific has not met this burden. Aside from

emphasizing that the subpoena is two pages long

with seventeen separate requests and questioning

where the EEOC derived its information from, Union

Pacific has not made a sufficient showing that the

subpoena is overly broad or will unduly burden it.

Finally, Union Pacific argues that I should

dismiss the EEOC’s petition based on the doctrine of

laches, which is an equitable defense based on

unreasonable delay. Union Pacific argues that the

EEOC dragged its feet in investigating the charges

and failed to intervene in the complainants’ private

suit, constituting unreasonable delay, and that

Union Pacific would be prejudiced by having to

comply with the EEOC’s subpoena when it has

already litigated the underlying discrimination

charges.

However, Union Pacific seems to be

responsible for at least some of the delay in the

investigation because if its refusal to cooperate with

two subpoenas, requiring the EEOC to petition the

district court to enforce them. Further, Union Pacific

has not shown how complying with a subpoena will

prejudice it; complying with a subpoena does not

require Union Pacific to relitigate the charges; at

this point at least, Union Pacific is not being

prejudiced.

THEREFORE, IT IS ORDERED that

respondent’s motion to dismiss (ECF No. 7) is

DENIED.

28a

IT IS FURTHER ORDERED that a telephonic

status conference is scheduled for June 4, 2015 at

11:30 a.m. for the purpose of discussing remaining

enforcement issues. The court will initiate the call.

29a

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 21, 2017

Before

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

WILLIAM M. CONLEY, District Judge *

No. 15‐3452

EQUAL EMPLOYMENT

OPPORTUNITY

COMMISSION,

Petitioner‐Appellee,

UNION PACIFIC

RAILROAD COMPANY,

Appeal from the

United States District

Court for the Eastern

District of Wisconsin.

No. 2:14‐mc‐00052‐LA

Lynn Adelman,

Judge.

Respondent‐Appellant.

ORDER

No judge of the court having called for a vote on

the Petition For Rehearing En Banc, filed by

Respondent‐Appellant on October 27, 2017, and all

of the judges on the original panel having voted to

deny the same,

IT IS HEREBY ORDERED that the Petition For

Rehearing En Banc is DENIED.

Of the Western District of Wisconsin, sitting by

designation.

30a

42 U.S.C. § 2000e-5

§ 2000e-5. Enforcement provisions

(a) Power of Commission to prevent unlawful

employment practices

The Commission is empowered, as hereinafter

provided, to prevent any person from engaging in

any unlawful employment practice as set forth in

section 2000e-2 or 2000e-3 of this title.

(b) Charges by persons aggrieved or member of

Commission of unlawful employment

practices by employers, etc.; filing;

allegations; notice to respondent; contents

of notice; investigation by Commission;

contents of charges; prohibition on

disclosure of charges; determination of

reasonable cause; conference, conciliation,

and persuasion for elimination of unlawful

practices; prohibition on disclosure of

informal endeavors to end unlawful

practices; use of evidence in subsequent

proceedings; penalties for disclosure of

information; time for determination of

reasonable cause

Whenever a charge is filed by or on behalf of a

person claiming to be aggrieved, or by a member of

the Commission, alleging that an employer,

employment agency, labor organization, or joint

labor-management

committee

controlling

apprenticeship or other training or retraining,

including on-the-job training programs, has engaged

in an unlawful employment practice, the

Commission shall serve a notice of the charge

(including the date, place and circumstances of the

31a

alleged unlawful employment practice) on such

employer, employment agency, labor organization, or

joint labor-management committee (hereinafter

referred to as the “respondent”) within ten days, and

shall make an investigation thereof. Charges shall

be in writing under oath or affirmation and shall

contain such information and be in such form as the

Commission requires. Charges shall not be made

public by the Commission.

If the Commission

determines after such investigation that there is not

reasonable cause to believe that the charge is true, it

shall dismiss the charge and promptly notify the

person claiming to be aggrieved and the respondent

of its action. In determining whether reasonable

cause exists, the Commission shall accord

substantial weight to final findings and orders made

by State or local authorities in proceedings

commenced under State or local law pursuant to the

requirements of subsections (c) and (d) of this

section. If the Commission determines after such

investigation that there is reasonable cause to

believe that the charge is true, the Commission shall

endeavor to eliminate any such alleged unlawful

employment practice by informal methods of

conference, conciliation, and persuasion. Nothing

said or done during and as a part of such informal

endeavors may be made public by the Commission,

its officers or employees, or used as evidence in a

subsequent proceeding without the written consent

of the persons concerned. Any person who makes

public information in violation of this subsection

shall be fined not more than $1,000 or imprisoned

for not more than one year, or both.

The

Commission shall make its determination on

reasonable cause as promptly as possible and, so far

32a

as practicable, not later than one hundred and

twenty days from the filing of the charge or, where

applicable under subsection (c) or (d) of this section,

from the date upon which the Commission is

authorized to take action with respect to the charge.

***

(f) Civil action by Commission, Attorney

General,

person

aggrieved;

preconditions; procedure; appointment of

attorney; payment of fees, costs, or

security; intervention; stay of Federal

proceedings;

action

for

appropriate

temporary or preliminary relief pending

final disposition of charge; jurisdiction and

venue of United States courts; designation

of judge to hear and determine case;

assignment of case for hearing; expedition

of case; appointment of master

(1) If within thirty days after a charge is filed with

the Commission or within thirty days after

expiration of any period of reference under

subsection (c) or (d) of this section, the Commission

has been unable to secure from the respondent a

conciliation

agreement

acceptable

the

Commission, the Commission may bring a civil

action against any respondent not a government,

governmental agency, or political subdivision named

in the charge. In the case of a respondent which is a

government, governmental agency, or political

subdivision, if the Commission has been unable to

secure from the respondent a conciliation agreement

acceptable to the Commission, the Commission shall

take no further action and shall refer the case to the

33a

Attorney General who may bring a civil action

against such respondent in the appropriate United

States district court.

The person or persons

aggrieved shall have the right to intervene in a civil

action brought by the Commission or the Attorney

General in a case involving a government,

governmental agency, or political subdivision. If a

charge filed with the Commission pursuant to

subsection (b) of this section is dismissed by the

Commission, or if within one hundred and eighty

days from the filing of such charge or the expiration

of any period of reference under subsection (c) or (d)

of this section, whichever is later, the Commission

has not filed a civil action under this section or the

Attorney General has not filed a civil action in a case

involving a government, governmental agency, or

political subdivision, or the Commission has not

entered into a conciliation agreement to which the

person aggrieved is a party, the Commission, or the

Attorney General in a case involving a government,

governmental agency, or political subdivision, shall

so notify the person aggrieved and within ninety

days after the giving of such notice a civil action may

be brought against the respondent named in the

charge (A) by the person claiming to be aggrieved or

(B) if such charge was filed by a member of the

Commission, by any person whom the charge alleges

was aggrieved by the alleged unlawful employment

practice. Upon application by the complainant and

in such circumstances as the court may deem just,

the court may appoint an attorney for such

complainant and may authorize the commencement

of the action without the payment of fees, costs, or

security. Upon timely application, the court may, in

its discretion, permit the Commission, or the

34a

Attorney General in a case involving a government,

governmental agency, or political subdivision, to

intervene in such civil action upon certification that

the case is of general public importance. Upon

request, the court may, in its discretion, stay further

proceedings for not more than sixty days pending the

termination of State or local proceedings described in

subsection (c) or (d) of this section or further efforts

of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the

Commission and the Commission concludes on the

basis of a preliminary investigation that prompt

judicial action is necessary to carry out the purposes

of this Act, the Commission, or the Attorney General

in a case involving a government, governmental

agency, or political subdivision, may bring an action

for appropriate temporary or preliminary relief

pending final disposition of such charge.

Any

temporary restraining order or other order granting

preliminary or temporary relief shall be issued in

accordance with rule 65 of the Federal Rules of Civil

Procedure. It shall be the duty of a court having

jurisdiction over proceedings under this section to

assign cases for hearing at the earliest practicable

date and to cause such cases to be in every way

expedited.

(3) Each United States district court and each

United States court of a place subject to the

jurisdiction of the United States shall have

jurisdiction of actions brought under this

subchapter. Such an action may be brought in any

judicial district in the State in which the unlawful

employment practice is alleged to have been

committed, in the judicial district in which the

35a

employment records relevant to such practice are

maintained and administered, or in the judicial

district in which the aggrieved person would have

worked but for the alleged unlawful employment

practice, but if the respondent is not found within

any such district, such an action may be brought

within the judicial district in which the respondent

has his principal office. For purposes of sections

1404 and 1406 of title 28, the judicial district in

which the respondent has his principal office shall in

all cases be considered a district in which the action

might have been brought.

(4) It shall be the duty of the chief judge of the

district (or in his absence, the acting chief judge) in

which the case is pending immediately to designate

a judge in such district to hear and determine the

case. In the event that no judge in the district is

available to hear and determine the case, the chief

judge of the district, or the acting chief judge, as the

case may be, shall certify this fact to the chief judge

of the circuit (or in his absence, the acting chief

judge) who shall then designate a district or circuit

judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated

pursuant to this subsection to assign the case for

hearing at the earliest practicable date and to cause

the case to be in every way expedited. If such judge

has not scheduled the case for trial within one

hundred and twenty days after issue has been

joined, that judge may appoint a master pursuant to

rule 53 of the Federal Rules of Civil Procedure.

***

36a

42 U.S.C. § 2000e-6

§ 2000e-6. Civil actions by the Attorney General

(a) Complaint

Whenever the Attorney General has reasonable

cause to believe that any person or group of persons

is engaged in a pattern or practice of resistance to

the full enjoyment of any of the rights secured by

this subchapter, and that the pattern or practice is of

such a nature and is intended to deny the full

exercise of the rights herein described, the Attorney

General may bring a civil action in the appropriate

district court of the United States by filing with it a

complaint (1) signed by him (or in his absence the

Acting Attorney General), (2) setting forth facts

pertaining to such pattern or practice, and

(3) requesting such relief, including an application

for a permanent or temporary injunction, restraining

order or other order against the person or persons

responsible for such pattern or practice, as he deems

necessary to insure the full enjoyment of the rights

herein described.

(b) Jurisdiction; three-judge district court for

cases of general public importance:

hearing, determination, expedition of

action, review by Supreme Court; single

judge

district

court:

hearing,

determination, expedition of action

The district courts of the United States shall have

and shall exercise jurisdiction of proceedings

instituted pursuant to this section, and in any such

proceeding the Attorney General may file with the

clerk of such court a request that a court of three

judges be convened to hear and determine the case.

37a

Such request by the Attorney General shall be

accompanied by a certificate that, in his opinion, the

case is of general public importance. A copy of the

certificate and request for a three-judge court shall

be immediately furnished by such clerk to the chief

judge of the circuit (or in his absence, the presiding

circuit judge of the circuit) in which the case is

pending. Upon receipt of such request it shall be the

duty of the chief judge of the circuit or the presiding

circuit judge, as the case may be, to designate

immediately three judges in such circuit, of whom at

least one shall be a circuit judge and another of

whom shall be a district judge of the court in which

the proceeding was instituted, to hear and determine

such case, and it shall be the duty of the judges so

designated to assign the case for hearing at the

earliest practicable date, to participate in the

hearing and determination thereof, and to cause the

case to be in every way expedited. An appeal from

the final judgment of such court will lie to the

Supreme Court.

In the event the Attorney General fails to file such

a request in any such proceeding, it shall be the duty

of the chief judge of the district (or in his absence,

the acting chief judge) in which the case is pending

immediately to designate a judge in such district to

hear and determine the case. In the event that no

judge in the district is available to hear and

determine the case, the chief judge of the district, or

the acting chief judge, as the case may be, shall

certify this fact to the chief judge of the circuit (or in

his absence, the acting chief judge) who shall then

designate a district or circuit judge of the circuit to

hear and determine the case.

38a

It shall be the duty of the judge designated

pursuant to this section to assign the case for

hearing at the earliest practicable date and to cause

the case to be in every way expedited.

effective date; prerequisite to transfer;

execution of functions by Commission

Effective two years after March 24, 1972, the

functions of the Attorney General under this section

shall be transferred to the Commission, together

with such personnel, property, records, and

unexpended balances of appropriations, allocations,

and other funds employed, used, held, available, or

to be made available in connection with such

functions unless the President submits, and neither

House of Congress vetoes, a reorganization plan

pursuant to chapter 9 of title 5, inconsistent with the

provisions of this subsection. The Commission shall

carry out such functions in accordance with

subsections (d) and (e) of this section.

(d) Transfer of functions, etc., not to affect

suits commenced pursuant to this section

prior to date of transfer

Upon the transfer of functions provided for in

subsection (c) of this section, in all suits commenced

pursuant to this section prior to the date of such

transfer, proceedings shall continue without

abatement, all court orders and decrees shall remain

in effect, and the Commission shall be substituted as

a party for the United States of America, the

Attorney General, or the Acting Attorney General, as

appropriate.

39a

(e) Investigation and action by Commission

pursuant

filing

charge

discrimination; procedure

Subsequent to March 24, 1972, the Commission

shall have authority to investigate and act on a

charge of a pattern or practice of discrimination,

whether filed by or on behalf of a person claiming to

be aggrieved or by a member of the Commission. All

such actions shall be conducted in accordance with

the procedures set forth in section 2000e-5 of this

title.

40a

42 U.S.C. § 2000e-8

§ 2000e-8. Investigations

(a) Examination and copying of evidence

related to unlawful employment practices.

In connection with any investigation of a charge

filed under section 2000e-5 of this title, the

Commission or its designated representative shall at

all reasonable times have access to, for the purposes

of examination, and the right to copy any evidence of

any person being investigated or proceeded against

that relates to unlawful employment practices

covered by this subchapter and is relevant to the

charge under investigation.

***

41a

42 U.S.C. § 2000e-9

§ 2000e-9. Conduct

hearings

and

investigations pursuant to section 161 of title

For the purpose of all hearings and investigations

conducted by the Commission or its duly authorized

agents or agencies, section 161 of title 29 shall apply.

42a

No. 18,924

In the United States Court of Appeals

For the Sixth Circuit

BLUE BELL BOOTS, INC., formerly, J.W. Carter

Company

Appellant

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Appellee

Appeal from the United States District Court

for the Middle District of Tennessee,

Nashville Division

BRIEF FOR APPELLEE

FILED

NOV 29 1968

Carl W. Reuss, Clerk

***

COUNTER-STATEMENT OF FACTS

On November 8, 1966, the Commission received

at its Atlanta, Georgia Regional Office, a letter from

the Tennessee commission on Human Relations

containing seven unsworn charges, written on EEOC

charge forms, setting forth facts, if true, constituting

43a

violations of Title VII, on the part of the J. W.

Carter, Company, Inc., appellant’s predecessor. 2

The seven Charging Parties, all former Negro

employees of the company were discharged by it

during the period October 4, 1966 through October

21, 1966. (P. 2 of Company’s Petition below).

Specifically, they charged that they had been

discharged for reasons of their race and that the

Company had restricted employment opportunities

for Negroes by maintaining a discriminatory

training and promotional program. 3 (Appendix A to

Commission’s Answer, p. 2 Aff.)

The charges were reviewed by an officer of the

commission who concluded that they constituted a

written statement sufficiently precise to identify the

parties and to describe generally the actions and

practices complained of. Accordingly, pursuant to

Section 16.01.11 of the Commission’s Rules and

Regulations, 29 C.F.R. Section 1601.11, the unsworn

charges were viewed as valid charges within the

meaning of Section 706 of the Act. The Commission

advised the Charging Parties that their charges had

been reviewed and that a field representative of the

Commission would contact them. (P. 3 Aff.)

***

P. 1 Affidavit (hereinafter Aff.) attached to the

Commission’s Answer.

The unsworn charges were forwarded on or about

November 17, 1966, to the Commission’s New Orleans Regional

Office which was at that time responsible for processing cases

in Tennessee. (P. 2 Aff.)

 FEPA

 EEOC

Home Phone (incl. Area Code)

(773) 261-0616

Date of Birth

09-21-1962

Name

UNION PACIFIC RAILROAD

No. Employees, Members

500 or More.

Phone No. (include

area code)

(515) 433-5691

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship

Committee, or State or Local Government Agency That I Believe Discriminated Against

Me or Others. (If more than two, list under PARTICULARS below.)

Street Address

City, State and ZIP Code

1861 S. Central Park, Apt. 1, Chicago, IL 60623

Name (indicate Mr., Ms., Mrs.)

Frank Burks

440-2012-00416

Agency(ies) Charge

No(s):

and EEOC

Charge Presented To:

Iowa Civil Rights Commission

State or local Agency, if any

This form is affected by the Privacy Act of

1974. See enclosed Privacy Act Statement

and other information before completing

this form.

CHARGE OF DISCRIMINATION

44a

No. Employees, Members

City, State and ZIP Code

Name

Street Address

Phone No. (include

area code)

 CONTINUING ACTION

I began employment with Respondent on or about January 3, 2011. I was discharged

from employment on or about February 9, 2011. I filed an internal EEO complaint with

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

 OTHER (Specify)

 RETALIATION  AGE  DISABILITY

 GENETIC INFORMATION

DISCRIMINATION BASED ON (Check appropriate DATE(S) DISCRIMINATION

box(es).)

TOOK PLACE

Earliest

Latest

 RACE  COLOR  SEX  RELIGION

10-10-2011

 NATIONAL ORIGIN

City, State and ZIP Code

Street Address

900 Story St., Boone, IA 50036

45a

I swear or affirm that I have read the above

charge and that it is true to the best of my

knowledge, information and belief.

SIGNATURE OF COMPLAINANT

NOTARY – When necessary for State and

Local Agency Requirements

I declare under penalty of perjury that the

above is true and correct.

SUBSCRIBED AND SWORN TO BEFORE

ME THIS DATE

Oct 31, 2011

s/ Frank Burks

(month, day, year)

Date

Charging Party Signature

I want this charge filed with both the

EEOC and the State or local Agency, if

any. I will advise the agencies if I change

my address or phone number and I will

cooperate fully with them in the processing

of my charge in accordance with their

procedures.

I believe that I have been discriminated against because of my race, Black, and in

retaliation for engaging in protected activity, in violation of Title VII of the Civil Rights

Act of 1964, as amended.

Respondent, and was reinstated on or about May 24, 2011. Subsequent to filing my

complaint, I have been denied the opportunity to take a test for the Assistant

Signalman position. On or about October 10, 2011, I was discharged again.

46a

 FEPA

 EEOC

Home Phone (incl. Area Code)

(815) 847-2133

Date of Birth

03-28-1970

Name

UNION PACIFIC RAILROAD

No. Employees, Members

500 or More.

Phone No. (include

area code)

(515) 433-5691

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship

Committee, or State or Local Government Agency That I Believe Discriminated Against

Me or Others. (If more than two, list under PARTICULARS below.)

Street Address

City, State and ZIP Code

425 Gramercy Dr, Apt. 4, Rockford, IL 61107

Name (indicate Mr., Ms., Mrs.)

Mr. Cornelius L. Jones, Jr.

440-2012-00398

Agency(ies) Charge

No(s):

and EEOC

Charge Presented To:

Iowa Civil Rights Commission

State or local Agency, if any

This form is affected by the Privacy Act of

1974. See enclosed Privacy Act Statement

and other information before completing

this form.

CHARGE OF DISCRIMINATION

47a

No. Employees, Members

City, State and ZIP Code

Name

Street Address

Phone No. (include

area code)

 CONTINUING ACTION

I began employment with Respondent on or about January 3, 2011. My most recent

position was Signal Helper. I previously filed EEOC charge #563-2011-01513.

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

 OTHER (Specify)

 RETALIATION  AGE  DISABILITY

 GENETIC INFORMATION

DISCRIMINATION BASED ON (Check appropriate DATE(S) DISCRIMINATION

box(es).)

TOOK PLACE

Earliest

Latest

 RACE  COLOR  SEX  RELIGION

10-10-2011

 NATIONAL ORIGIN

City, State and ZIP Code

Street Address

900 Story St., Boone, IA 50036

48a

I swear or affirm that I have read the above

charge and that it is true to the best of my

knowledge, information and belief.

SIGNATURE OF COMPLAINANT

NOTARY – When necessary for State and

Local Agency Requirements

I declare under penalty of perjury that the

above is true and correct.

SUBSCRIBED AND SWORN TO BEFORE

ME THIS DATE

Nov. 4, 2011 s/ X Cornelius L. Joseph Jr. (month, day, year)

Date

Charging Party Signature

I want this charge filed with both the

EEOC and the State or local Agency, if

any. I will advise the agencies if I change

my address or phone number and I will

cooperate fully with them in the processing

of my charge in accordance with their

procedures.

I believe that I have been discriminated against because of my race, Black, and in

retaliation for having engaged in protected activity, in violation of Title VII of the Civil

Rights Act of 1964, as amended.

Subsequent to filing that charge, I have been denied the opportunity to take a test for

an Assistant Signalman position. On or about October 10, 2011, I was discharged.

49a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.