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U.S. Equal Employment Opportunity Commission v. McLane Company, Inc.

United States Court of Appeals, Ninth Circuit

May 24, 2017

U.S. Equal Employment Opportunity Commission, Plaintiff-Appellant,
v.
McLane Company, Inc., Defendant-Appellee.

         On Remand From the United States Supreme Court D.C. No. 2:12-cv-02469-GMS

          James Tucker (argued), Attorney, P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant.

          Ronald E. Manthey (argued) and Ellen L. Perlioni, Morgan, Lewis & Bockius LLP, Dallas, Texas; Joshua R. Woodard and Ashley T. Kasarjian, Snell & Wilmer L.L.P., Phoenix, Arizona, for Defendant-Appellee.

          Before: J. Clifford Wallace, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges.

         SUMMARY [*]

         Subpoena / EEOC

         On remand from the United States Supreme Court, the panel vacated the district court's order denying enforcement of an administrative subpoena issued by the Equal Employment Opportunity Commission to McLane Company as part of an investigation of a sex discrimination claim.

         The EEOC alleged that McLane discriminated the basis of sex when it fired a former employee after she failed to pass a physical capability strength test. As relevant here, the subpoena requested "pedigree information" (name, Social Security number, last known address, and telephone number) for employees or prospective employees who took the test.

         The panel held that the district court abused its discretion by denying enforcement of the subpoena because the information was relevant to the EEOC's investigation. The panel vacated the district court's order denying enforcement of the subpoena and remanded for further proceedings. The panel held that on remand McLane was free to renew its argument that the EEOC's request for pedigree information was unduly burdensome. The panel further instructed that on remand, the district court should resolve whether producing a second category of evidence-the reasons test takers were terminated-would be unduly burdensome to McLane.

          OPINION

          WATFORD, Circuit Judge:

         This case returns to us on remand from the United States Supreme Court. In our earlier decision, we held that the district court erred by denying enforcement of an administrative subpoena issued by the Equal Employment Opportunity Commission (EEOC) to McLane Company. EEOC v. McLane Co., 804 F.3d 1051 (9th Cir. 2015), vacated, 137 S.Ct. 1159 (2017). The EEOC issued the subpoena as part of its investigation into a charge filed by Damiana Ochoa, a former employee of a McLane subsidiary. Ochoa alleged that McLane discriminated against her on the basis of sex when it fired her after she failed to pass a physical capability strength test. As relevant here, the subpoena requests "pedigree information" (name, Social Security number, last known address, and telephone number) for employees or prospective employees who took the test. In accordance with prevailing circuit precedent at the time, we reviewed de novo the district court's ruling that the pedigree information was not relevant to the EEOC's investigation. Id. at 1056. The Supreme Court vacated our judgment after concluding that a district court's decision whether to enforce an EEOC subpoena should be reviewed for abuse of discretion. McLane Co. v. EEOC, 137 S.Ct. 1159, 1164 (2017). The Court remanded the case so that we could re-evaluate the district court's ruling under the proper standard of review. Id. at 1170. Having done so, we conclude that the district court abused its discretion by denying enforcement of the subpoena.

         The district court held that the pedigree information was not relevant "at this stage" of the EEOC's investigation because the evidence McLane had already produced would "enable the E.E.O.C. to determine whether the [strength test] systematically discriminates on the basis of gender." The court suggested that if the EEOC's analysis of the information McLane had already produced during the investigation indicates systemic discrimination, the pedigree information might become relevant at that point, and its production to the EEOC might then be "necessary."

         The district court's ruling was predicated on an erroneous view of the legal standard governing relevance in this context. We adopt below the portions of our earlier analysis that remain relevant to explaining why the district court committed legal error in this regard.

         Under Title VII of the Civil Rights Act of 1964, the EEOC has the right to obtain evidence if it relates to employment practices made unlawful under Title VII and "is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). The relevance limitation imposed by § 2000e-8(a) "is not especially constraining." EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). The question is not whether the evidence sought would tend to prove a charge of unlawful discrimination. At the investigative stage, the EEOC is trying to determine only whether "reasonable cause" exists "to believe that the charge is true." 42 U.S.C. ยง 2000e-5(b). So the relevance standard in this context sweeps more broadly than ...


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