No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Transcription

1 No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, v. Plaintiff-Appellee, KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC. Defendant-Appellant. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Hon. Blanche M. Manning, District Judge Hon. Martin C. Ashman, Magistrate Judge BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE P. DAVID LOPEZ ERIC A. HARRINGTON General Counsel Attorney CAROLYN L. WHEELER Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC (202) eric.harrington@eeoc.gov

2 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ( EEOC ) concurs in the Appellant s request for oral argument in this subpoena enforcement action. The EEOC s ability to obtain information lies at the core of the agency s legal duty to investigate allegations of employment discrimination. Oral argument may allow the Court to explore the issues in greater depth. i

3 TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUE... 2 STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 6 ARGUMENT... 9 I. Standard of Review... 9 II. The District Court Did Not Abuse Its Discretion in Concluding that the EEOC s Subpoena Seeks Information Relevant to Mr. Thompson s Charge.. 11 A. Hiring Information that Might Cast Light on Assignment of Sales Territories Is Relevant to the Charged Allegation of Discrimination in Terms and Conditions of Employment B. Information About KMBS s Hiring Practices Is Relevant to the Charged Allegations III. The District Court Did Not Abuse Its Discretion When It Found That Compliance with the Subpoena Would Not Be Unduly Burdensome CONCLUSION CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS APPENDIX CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES CASES Amalgamated Transit Union International, AFL-CIO v. Donovan, 767 F.2d 939 (D.C. Cir. 1985) Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir. 1985)... 14, 16 Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir. 1969)... 20, 21, 26 Bodenstab v. County of Cook, 569 F.3d 651 (7th Cir. 2009)... 10, 32 Cobb v. Stringer, 850 F.2d 356 (8th Cir. 1988) Coffman v. Indianapolis Fire Department, 578 F.3d 559 (7th Cir. 2009) Davis v. Team Electric Co., 520 F.3d 1080 (9th Cir. 2008) Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982) EEOC v. A.E. Staley Manufacturing, 711 F.2d 780 (7th Cir. 1983)... passim EEOC v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir. 1981)... passim EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir. 1993)... 22, 28 EEOC v. Federal Express, 558 F.3d 842 (9th Cir. 2009) EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994)... 18, 22 EEOC v. Franklin, 775 F.2d 110 (3rd Cir. 1985) EEOC v. Ill. Department of Employment Sec., 995 F.2d 106 (7th Cir. 1993) EEOC v. Ill. State Tollway Authority, 800 F.2d 656 (7th Cir. 1986) EEOC v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997) EEOC v. Maryland Cup Corp., 785 F.2d 471 (4th Cir. 1986) EEOC v. Quad/Graphics, Inc., 63 F.3d 642 (7th Cir. 1995)... passim EEOC v. Roadway Express, 750 F.2d 40 (6th Cir. 1984)... 21, 26, 27 iii

5 EEOC v. Shell Oil Co., 466 U.S. 54 (1984)... passim EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696 (7th Cir. 2002)... 1, 12, 33 EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir. 1987)... passim EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)... passim EEOC v. University of New Mexico, 504 F.2d 1296 (10th Cir. 1974) EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009)... 1 Eggleston v. Chicago Journeymen Plumbers' Local Union Number 130, U. A., 657 F.2d 890 (7th Cir. 1981) Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943)... 12, 13 Foster v. Ruhrpumpen, Inc., 365 F.3d 1191 (10th Cir. 2004) Happel v. Walmart Stores, Inc., 602 F.3d 820 (7th Cir. 2010)... 10, 32 International Union v. Johnson Controls, 499 U.S. 187 (1991) Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (7th Cir. 1976)... 14, 15, 16 Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973)... 22, 28 Lyons v. England, 307 F.3d 1092 (9th Cir.2002)... 14, 15 McDonnell Douglas v. Green, 411 U.S. 792 (1973) Motorola, Inc. v. McClain, 484 F.2d 1339 (7th Cir. 1973)... 24, 25 NLRB v. Orr Iron, Inc., 508 F.2d 1305 (7th Cir. 1975) NLRB v. Rohlen, 385 F.2d 52 (7th Cir. 1967) Rhodes v. Ill. Department of Transport, 359 F.3d 498 (7th Cir. 2004) Stephens v. Erickson, 569 F.3d 779 (7th Cir. 2009) Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994) iv

6 University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) Winsley v. Cook County, 563 F.3d 598 (7th Cir. 2009) STATUTES 28 U.S.C U.S.C U.S.C U.S.C. 2000e-5(f) U.S.C. 2000e-8(a), (c)... 1, U.S.C. 2000e , 11 RULES & REGULATIONS 29 C.F.R (b) C.F.R , 11 OTHER AUTHORITIES Section-by-Section Analysis of H.R. 1476, 118 Cong. Rec (1972) v

7 STATEMENT OF JURISDICTION The district court had jurisdiction under 42 U.S.C. 2000e-5(f), -8(c), both of which authorize a district court to adjudicate subpoena-enforcement actions filed by the EEOC, and under 28 U.S.C. 1345, which creates subject-matter jurisdiction for any suit filed by the United States or one of its agencies. See EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593, 595 (7th Cir. 2009). The district court also had jurisdiction under Section 710 of Title VII, which provides that section 11 of the National Labor Relations Act, 29 U.S.C. 161, applies to all investigations conducted by the EEOC. 42 U.S.C. 2000e-9. Thus, the EEOC can issue a subpoena requiring production of documents, 29 U.S.C. 161(1), and if the employer under investigation refuses to comply with it, the EEOC may apply to a federal court for enforcement of the subpoena. 29 U.S.C. 161(2); see also EEOC v. Bay Shipbldg. Corp., 668 F.2d 304, (7th Cir. 1981); 29 C.F.R Pursuant to those provisions, the district court entered an order granting the EEOC s application to enforce the subpoena on January 14, App. at 1 (R.33). When the EEOC applies to the district court only for an order to enforce a subpoena, the district court s order enforcing the subpoena is a final order that is ripe for review. See EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 699 (7th Cir. 2002). KMBS filed a timely notice of appeal on January 28, R.38. This Court has jurisdiction under 28 U.S.C

8 STATEMENT OF THE ISSUE Whether the district court abused its discretion in enforcing an EEOC subpoena that seeks information relevant to the charge under investigation and imposes no undue burden on the employer. STATEMENT OF FACTS In 2005, Elliot Thompson, who was a salesperson in KMBS s Tinley Park, Illinois, facility, filed a Charge of Discrimination with the EEOC against KMBS. App x at 2 (R.6, at 4). 1 In the charge, Thompson alleges that his Branch General Manager subjected [him] to different terms and conditions of employment on account of his race, that he was disciplined for not meeting sales quotas, whereas a non-black similarly situated co-worker was not disciplined for not meeting his quota, and that he complained to [the] Human Resources Department about race discrimination. Id. The charge further states that Mr. Thompson believe[s] [he] ha[s] been discriminated and retaliated against because of [his] race, Black, in violation of the Civil Rights Act of 1964, as amended. Id. The charge notes that the discrimination began on Mr. Thompson s first day, March 1, 2005, and was a continuing action. Id. After Thompson filed his charge, the EEOC began to investigate his allegations. In the course of the investigation, the EEOC discovered that at KMBS s Tinley Park facility there were two teams of salespeople and those teams were segregated by race, with one team being all white and the other predominately black. R.6, at 1 2. The EEOC also learned that, at the time of Thompson s discharge, only six of the 1 App x refers to the EEOC s attached Appendix. App. refers to KMBS s Appendix. 2

9 approximately 120 sales employees at KMBS s Chicago-area facilities were black and all six were employed at the Tinley Park facility. Id. at 2. In addition, the EEOC learned that all but one of the approximately 100 sales employees at the other facilities were white. Id. (The record is unclear about the ethnicity of that sole non-white employee at the other facility, but he or she presumably is not black.) The EEOC, in June 2008, issued a subpoena to KMBS requesting that it provide the EEOC with certain records relating to the hiring of sales personnel at four Chicagoland facilities. Id. The subpoena provides, in its entirety: Definitions: For purposes of this subpoena, the following definitions shall apply: A. Job Application shall mean any request for employment, or expression of interest in employment received by [KMBS], whether received in paper form or electronic form; B. Job Applicant shall mean any individual from whom [KMBS] received a job application (as defined above) or whom [KMBS] otherwise considered for employment; C. Supporting Materials shall mean all materials received by [KMBS] in connection with a Job Application (e.g., resumes, academic transcripts, etc.); and D. Target facilities shall mean the four facilities operated by [KMBS] in Chicago, Illinois; Downers Grove, Illinois; Rolling Meadows, Illinois; and Tinley Park, Illinois. Documents Required to be Produced: Submit copies of all records relating to the hiring of sales personnel at the target facilities, during the period of 3

10 October 1, 2003, to the present, including but not limited to: (1) all Job Applications that indicate an interest in sales work at any of the target facilities or in any geographic area encompassing one or more of the target facilities, as well as all associated supporting materials; (2) all Job Applications that [KMBS] reviewed or considered in connection with filling any sales position at the target facilities, as well as all associated supporting materials; (3) all records (such as notes or logs) reflecting any job interviews or other communications with Job Applicants who applied for or were otherwise considered for any sales position at the target facilities; (4) all records reflecting any evaluation or assessment of each Job Applicant who applied for or was otherwise considered for any sales position at the target facilities (including ratings, lists of strengths or weaknesses, recommendations for or against hiring and reasons therefore, decisions to hire or not to hire and reasons therefore, etc.); (5) records sufficient to provide the following information for each Job Applicant and each individual actually hired by [KMBS] to fill any sales position at any of the target facilities: name, race, Social Security Number, address at the time of application, last known address (if different) and phone number, and (if applicable) date(s) of hire/transfer/promotion for each position held at [KMBS]; and (6) records reflecting all criteria and procedures used by [KMBS] in assessing or evaluating Job Applications and Job Applicants for sales positions at the target facilities, including all records stating job descriptions or minimum (or desired) qualifications for sales positions. App x at 4 5 (R.6, at 7 8 (EEOC Subpoena No. CH )). 4

11 Thus, the subpoena seeks information about (1) individuals who expressed an interest in sales work at one of the four Chicagoland KMBS branches, (2) what applications KMBS reviewed to fill sales positions, (3) what communications including interviews were made with applicants for sales positions, (4) what evaluations were given to each considered applicant for a sales position, (5) the personal contact information, including race, of all the applicants who were hired to fill a sales position and information about whether they were promoted or transferred, and (6) what criteria were used to evaluate applicants for sales positions. Following receipt of the subpoena, KMBS filed a petition with the EEOC to revoke it, R.6, at 10 20, which the EEOC denied, R.6, at 2, 10. In response to the denial, KMBS sent the EEOC a letter restating the objections outlined in its petition to revoke the subpoena and characterizing the scope of the EEOC s investigation as ill-advised. Id. at 2, 11. KMBS made plain in a conversation with the EEOC investigator that it would not comply with the subpoena voluntarily, a position it memorialized in a letter to the EEOC the next day. Id. at 2, The EEOC, on March 26, 2009, filed an application with the district court for an order enforcing the subpoena, R.1, arguing that the investigation is within the EEOC s authority, the subpoena is not too indefinite, and the information sought is reasonably relevant to the charge and evidence uncovered during the course of the investigation, R.7, at KMBS, on the other hand, argued that the information sought bears no relevance to Thompson s charge of discriminatory discipline and 5

12 discharge, because Thompson did not allege discrimination in hiring, and that the subpoena is overbroad and unduly burdensome, because compliance with the subpoena would require KMBS to independently create documents and the EEOC lacks the authority to compel employers to create documents. R.13, at Magistrate Judge Martin C. Ashman heard oral argument on the EEOC s application, R.21, and issued a report recommending that the district judge grant the EEOC s application, R.23. The magistrate judge reasoned that the subpoena seeks relevant information because if KMBS steered black job applicants from the Chicago area to predominately black sales teams within predominately black territories, it would cast light on Thompson s claim that KMBS subjected him to discriminatory terms and condition of employment. App. at 11 (R.24, at 8) (internal quotations, brackets, and citations omitted). The magistrate judge further reasoned that the subpoena is not unduly burdensome because the subpoena does not require the creation of documents (and KMBS never swore under oath that it did not possess responsive documents), and because KMBS failed to make a showing that compliance with the subpoena would threaten the normal operations of its business. Id. at (R.24, at 9 10). The district court adopted the magistrate judge s report and recommendation, with one exception, and granted the EEOC s application. Id. at 1 (R.33, at 1). SUMMARY OF ARGUMENT This Court s review of an EEOC subpoena is very limited. The subpoena should be enforced if it seeks information relevant to the charge. This Court takes a very broad view of what is relevant. If the subpoena might cast light upon the charge, 6

13 it should be enforced. Indeed, the subpoena should be enforced even if the information sought is relevant only in an investigatory sense, that is, it will merely lead to additional evidence that might help to focus the investigation, but that may not be relevant in an evidentiary sense. The subpoena in this case seeks information about KMBS s hiring practices, which the court found to be relevant to assessing possible discrimination in assignment of sales territories. Both areas of inquiry are relevant to Thompson s charge alleging racial discrimination in terms and conditions of employment, discipline, and discharge. Despite the plain language of the charge, KMBS argues that information about sales assignments and territories is not relevant to the charge because the charge alleges only racial discrimination in discipline and discharge. That is wrong. The charge specifically alleges discrimination in the terms and conditions of employment. KMBS also is wrong when it argues that the district court clearly erred in concluding that an allegation of racial discrimination in sales territory assignments is included in the allegation of racial discrimination in the terms and conditions of employment. The district court s construction of the charge was right particularly given that charges are to construed with utmost liberality because work assignments are generally considered part of the terms and conditions of employment, and the discrimination in terms and conditions of employment that became apparent during the investigation was the potentially discriminatory sales and territory assignments. 7

14 In contending that hiring data is irrelevant, KMBS wrongly argues that the district court clearly erred when it concluded that the subpoena seeks information that goes to whether Konica engaged in a practice of steering African-American applicants to predominately African-American sales teams and predominately African-American territories. The district court did not, as KMBS suggests, make a finding that the subpoena specifically sought information about sales teams and territories but rather concluded that the hiring data was relevant to the charge in that it might cast light on whether KMBS steered applicants to the African- American sales teams which service predominately African-American communities. KMBS s argument that information sought by the subpoena bears no relevance to the charge, because, according to KMBS, the EEOC s investigatory authority is limited to the specific facts mentioned in the charge also is incorrect. Courts recognize that the EEOC has broad investigatory authority and have uniformly upheld subpoenas seeking information about racial discrimination not specifically alleged in the charge. Such information is relevant even under the more demanding evidentiary standard because plaintiffs attempting to prove discrimination under either the direct or indirect method often rely on evidence about the circumstances of other employees terms and conditions of employment. KMBS argues that this Court should disregard the unbroken chain of cases holding that information about racial discrimination in contexts different from that specifically alleged in the charge is relevant, because, according to KMBS, no post- Shell Oil case has upheld a similar subpoena. That argument is misguided. Both 8

15 the Supreme Court and this Court have made clear that the pre-shell Oil subpoena cases are still good law, some of which explicitly hold that hiring information is relevant to a charge alleging racial discrimination in termination, and, in any event, at least one post Shell Oil case has explicitly reiterated that a factual statement of a wrongful termination in a charge is enough to justify an investigation of employment practices and policies, including hiring policies and practices. KMBS also argues that this Court should not enforce the subpoena because it is more overbroad than the one that this Court declined to enforce in EEOC v. United Air Lines. This too is wrong. Whereas the subpoena in United Air Lines was determined to be broad and based only upon the hope of finding evidence that might cast light on the allegations in the charge, the subpoena in this case is a focused request that was issued based upon a reasonable expectation of finding evidence that might cast light on the allegations of racial discrimination in the charge. Finally, KMBS argues that the subpoena should not be enforced because it is unduly burdensome. KMBS s conclusory assertion, with no evidentiary support, does not meet its difficult burden of establishing that the subpoena is unduly burdensome. ARGUMENT I. Standard of Review The role of the court is sharply limited, in a subpoena enforcement proceeding. EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987). A subpoena enforcement proceeding is designed to be summary in nature. Id. As long as the investigation is within the agency s authority, the subpoena is not too indefinite, 9

16 and the information sought is reasonably relevant, the district court must enforce an administrative subpoena. 2 Id., quoted approvingly by EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002). When the district court enforces a subpoena, as it did here, this Court reviews the district court s decision deferentially: A finding by the district court that documents are reasonably relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determinations on which it is based are clearly erroneous or that the ruling itself constitutes an abuse of discretion. Similarly court assessments of whether disclosure would be burdensome... should only be reversed for abuse of discretion.... United Air Lines, 287 F.3d at 649 (quoting Dow Chem. Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir. 1982)); see also EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 645 (7th Cir. 1995) (quoting same). While errors of law that do not depend on the district court s factual findings are reviewed de novo, see United Air Lines, 287 F.3d at 649, KMBS has not argued that the district court made errors of law independent of its factual findings. Therefore, the subpoena in this case must be enforced unless this Court concludes that the district court clearly erred or abused its discretion when it concluded that the evidence sought by the subpoena is reasonably relevant to the charge and did 2 KMBS does not argue that the investigation exceeds the EEOC s authority. Also, KMBS argued below that the subpoena was too indefinite, but does not raise that argument on appeal. Those arguments are therefore waived. See Happel v. Walmart Stores, Inc., 602 F.3d 820, 825 (7th Cir. 2010) (appellants failure to raise an argument in its opening brief waives that argument); Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir. 2009) (appellant waived arguments that were not developed until the reply brief). 10

17 not impose an undue burden. See, e.g., EEOC v. Ill. State Tollway Auth., 800 F.2d 656, 658 (7th Cir. 1986). II. The District Court Did Not Abuse Its Discretion in Concluding that the EEOC s Subpoena Seeks Information Relevant to Mr. Thompson s Charge. The EEOC may issue subpoenas in connection with an investigation, 42 U.S.C. 2000e-9, and is entitled to inspect and copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation. EEOC v. Shell Oil Co., 466 U.S. 54, 63 (1984) (quoting 42 U.S.C. 2000e-8(a)); see also 29 C.F.R Although the EEOC is entitled to access only [] evidence relevant to the charge under investigation[,] [t]hat limitation on the Commission s investigative authority is not especially constraining. Shell Oil, 466 U.S. at 68; see also United Air Lines, 287 F.3d at 652 (relevancy requirement not particularly onerous ). Rather, the the term relevant is generously construed to afford[] the Commission access to virtually any material that might cast light on the allegations against the employer. 3 Shell Oil, 466 U.S. at 68 69; see also Bay Shipbldg., 668 F.2d at 311 ( [C]harge authorizes the EEOC to investigate any employer practice which may shed light on the discrimination charged. (internal quotations marks and citations omitted)). 3 The EEOC does not have to show either probable cause or reasonable cause; [i]ndeed, the purpose of the investigation is to determine whether probable cause or reasonable cause to bring a discrimination charge exists. United Air Lines, 287 F.3d at 652 n.5. 11

18 The light shedding standard is construed in terms of the investigation rather than in terms of evidentiary relevance. See EEOC v. Ill. Dep t of Employment Sec., 995 F.2d 106, 109 (7th Cir. 1993) (noting that EEOC is entitled to any evidence relevant to its investigation ); EEOC v. Lockheed Martin Corp., 116 F.3d 110, 113 (4th Cir. 1997) (citing NLRB v. Rohlen, 385 F.2d 52, 57 (7th Cir. 1967)); see also EEOC v. Federal Express, 558 F.3d 842, 854 (9th Cir. 2009). Thus, in Lockheed Martin, the Fourth Circuit enforced a subpoena seeking information about Lockheed s computer files because the data, while not being relevant in an evidentiary sense, was relevant in an investigatory sense in that it would enable the EEOC to better focus its investigation. 116 F.3d at 114. Likewise, the Ninth Circuit, in Federal Express, held that computerized files were relevant even though all agree[d] that that information is not relevant in an evidentiary sense, because the files would nonetheless help the EEOC craft additional information requests that may produce evidence of discriminatory treatment. 558 F.3d at 854. The light shedding standard also has meant that [c]ourts uniformly uphold the relevancy of EEOC subpoenas seeking information about discrimination not specifically alleged in the charge. Bay Shipbldg., 668 F.2d at 311. Indeed, [o]nly if... the information that the subpoenaed firm resists furnishing is not even arguably relevant... can the court resolve the issue then and there without insisting on further compliance with the subpoena. Sidley Austin, 315 F.3d at 699; see also Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) (holding that subpoena 12

19 should be enforced unless the evidence sought was plainly incompetent or irrelevant to any lawful purpose ). A. Hiring Information that Might Cast Light on Assignment of Sales Territories Is Relevant to the Charged Allegation of Discrimination in Terms and Conditions of Employment. To set up its argument that the information sought in the subpoena is not relevant, KMBS argues that the charge is limited to only an allegation of racial discrimination in discipline and discharge and not to any broader racial discrimination. KMBS Br. at 12. On a similar note, KMBS contends that the district court concluded that the charge contained allegations of discriminatory assignments of sales territories, and in so doing, the district court abused its discretion. Id. at 13. None of KMBS s contentions is correct. First, the charge, contrary to KMBS s position, is not limited to allegations regarding [Thompson s] discipline and discharge from the Tinley Park branch in October Id. at 12. Rather, the charge specifically states that [s]ince the beginning of [his] employment, [his] Branch General Manager has subjected [him] to different terms and conditions of employment. App x at 2 (R.6, at 4). The charge notes that the earliest date of the discrimination was his first day at KMBS, March 1, 2005, and that the discrimination was continuous. Id. And the charge states that [o]n or about October 5, 2005, I was disciplined for not meeting sales quotas, whereas a non-black similarly situated co-worker was not disciplined for not meeting his quota, that he complained about racial discrimination to the Human Resources Department on or about October 21, 2005, and was discharged on or 13

20 about October 31, Id. Thus, the charge plainly alleges continuous discrimination in the terms and conditions of employment that go beyond Thompson s discipline and discharge from the Tinley Park branch. KMBS also is wrong in suggesting that the district court concluded that the text of the charge contains an allegation of discriminatory assignment of sales territories. See KMBS Br. at 12. That is a straw man. The district court did not conclude that the text of the charge contained that allegation, but rather that the charge alleges discrimination in the terms and conditions of employment, which includes discrimination in the assignment of sales territories. App. at 1 (R.33, at 1). The district court s conclusion that terms and conditions of employment include assignment of sales territories is unassailable both because work assignments are generally considered part of the terms and conditions of employment, 4 and because charges are to be construed with utmost liberality. 5 4 See, e.g., Int l Union v. Johnson Controls, 499 U.S. 187, 197 (1991) (classifying individuals for particular jobs based on sex constitutes facial discrimination in terms and conditions of employment); NLRB v. Orr Iron, Inc., 508 F.2d 1305, 1307 (7th Cir. 1975) (noting assignments or other terms and conditions of employment in laundry list of employment responsibilities of supervisors); see also Davis v. Team Elec. Co., 520 F.3d 1080, 1090 (9th Cir. 2008) (noting that discriminatory work assignments materially affected the terms and conditions of Davis s employment );Rhodes v. Ill. Dep t of Transp., 359 F.3d 498, 506 (7th Cir. 2004) (holding that the test of supervisor status for purposes of harassment claim turns on the authority to make decisions affecting terms and conditions of employment, including transfer); Amalgamated Transit Union Int l, AFL-CIO v. Donovan, 767 F.2d 939, 952 (D.C. Cir. 1985) ( [W]ork assignments... have generally been recognized as terms and conditions of employment.... ) 5 See, e.g., Eggleston v. Chicago Journeymen Plumbers Local Union No. 130, U. A., 657 F.2d 890, 906 (7th Cir. 1981); accord Babrocky v. Jewel Food Co., 773 F.2d 857, 866 (7th Cir. 1985) (same); Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, (7th Cir. 1976) (en banc) (same); see also Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir. 2004) ( [W]e liberally construe charges[.] ); Lyons v. England, 307 F.3d 1092, 1104 (9th Cir.2002) ( We are required to construe appellants EEOC charges with utmost liberality[.] 14

21 Thus, the district court did not abuse its discretion in fact, it was right in construing the charge alleging racial discrimination in terms and conditions of employment to encompass racial discrimination in work assignments. 6 Nevertheless, KMBS asks this Court to require a charging party to articulate specifically the exact meaning of a term such as terms and conditions of employment he is challenging before the EEOC can investigate that allegation, even in a case where, as here, the EEOC has identified the assignment of sales teams and territories as one of the conditions of employment that Thompson s charge encompassed. This Court should reject the invitation to adopt a heightened charging standard, as it has done on at least three previous occasions. See Quad/Graphics, 63 F.3d at 646; EEOC v. A.E. Staley Mfg., 711 F.2d 780, 784 (7th Cir. 1983); Jenkins, 538 F.2d at 168. As this Court stated in Jenkins, Complainants to the EEOC are seldom lawyers. To compel the charging party to specifically articulate in a charge filed with the Commission the full panoply of discrimination which he may have suffered may cause the very persons Title VII (internal quotation marks omitted)); Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988) (noting that discrimination complainants oftentimes file EEOC charges without legal assistance and observing that courts must interpret[ ] [charges] with the utmost liberality in order not to frustrate the remedial purposes of Title VII ). Similarly, EEOC regulations explicitly state that a charge is sufficient when it describe[s] generally the action or practices complained of. 29 C.F.R (b) (emphasis added). 6 And in any event, even if terms and conditions did not encompass sales assignments, racial discrimination in sales territory assignments would be relevant to a charge of racial discrimination in terms and conditions of employment. As the magistrate judge put it and the district court adopted the magistrate judge s report if KMBS steered black job applicants from the Chicago area to predominately black sales teams within predominately black territories, it would cast light on Thompson s claim that KMBS subjected him to discriminatory terms and conditions of employment. App. at 11 (R.24, at 8). 15

22 was designed to protect to lose that protection because they are ignorant of or unable to thoroughly describe the discriminatory practices to which they are subjected. 538 F.2d at Simply because the charge did not specifically state that Thompson was discriminated against in the assignment of sales territories therefore does not mean that that was not what Thompson meant, particularly given that once the EEOC began to investigate his allegation that KMBS discriminated against him in the terms and conditions of employment, it became aware of KMBS s potentially discriminatory sales assignment policies. In sum, KMBS is wrong when it argues that the charge alleged only racial discrimination in discipline and discharge; it is wrong when it suggests that the district court concluded that the charge specifically alleged discrimination in the assignment of sales territories in the text of the charge; and it is wrong when it argues that the district court abused its discretion 7 Jenkins illustrates [well] the liberality with which EEOC charges should be interpreted. Babrocky, 773 F.2d at 864. In Jenkins, the plaintiff claimed that she was fired because of her Afro hairstyle and referred to her place as a leader of women employees and to the possibility that another employee, a white woman, might also have been denied a promotion because of her association with the plaintiff. 538 F.2d at 167. Even though the plaintiff specifically mentioned only racial discrimination in her charge, this Court interpreted the narrative of the charge to encompass claims of sex discrimination. Id. at 169. Likewise, in Staley, this Court rejected the employer s argument that before the EEOC can investigate the sex and racial discrimination alleged in a charge, the charge must allege sufficient facts to demonstrate some reasonable basis for its charge. 711 F.2d at 784. And in Quad/Graphics, a case involving a Commissioner s charge of racial and age discrimination in hiring, this Court rejected the employer s argument that a Commissioner s charge was invalid because the charge contained only conclusory allegations of discrimination and d[id] not state the categories of employment positions from which the affected individuals allegedly have been excluded. 63 F.3d at

23 in concluding that embedded in the term terms and conditions of employment are working conditions like sales territory assignments. B. Information About KMBS s Hiring Practices Is Relevant to the Charged Allegations. In addition to arguing that the district court clearly erred in construing the charge, KMBS argues that the district court clearly erred in construing the subpoena to mean that it seeks sales team and sales territory information. The district court, however, did not say that. Rather, the district court concluded that the subpoena seeks information about hiring, including application data and candidate assessments, which goes to whether Konica engaged in a practice of steering African-American applicants to predominately African-American sales teams and predominately African-American territories. App. at 2 (R.33, at 2). In so doing, the district court did not make a finding about what the subpoena seeks, as KMBS suggests, but rather determined that the subpoenaed information is relevant to the question of whether KMBS steered African-American applicants to predominately African-American sales teams and predominately African-American territories. Despite this finding, KMBS argues that information sought in the subpoena bears no relevance to Thompson s charge of discriminatory discipline and discharge. KMBS Br. at 15. KMBS is incorrect for two reasons. First, as already discussed, the subpoena alleges discrimination in terms and conditions of employment as well as discipline and discharge, and the information the subpoena seeks is relevant to all of these allegations. Second, because the information the 17

24 EEOC seeks would be relevant even under the more demanding evidentiary standard it is relevant under the broader investigatory relevance standard applied to subpoena enforcement proceedings. Here, as the district court found the subpoenaed information about hiring practices is relevant to the charge. Mr. Thompson alleges discrimination in terms and conditions of employment. The EEOC began to investigate that allegation and learned that at KMBS s Tinley Park facility there were two teams of salespeople, and that one team had all white salespeople and the other predominately black salespeople, R.6, at 1 2; that, at the time of Thompson s discharge, only six of the approximately 120 sales employees at KMBS s Chicago-area facilities were black and all six were employed at the Tinley Park facility, R.6, at 2; and that all but one of the approximately 100 sales employees at the other facilities were white. R.6, at 2. Thus, the EEOC, in the course of investigating Thompson s charge discovered that race may play a role in the hiring of sales representatives, the assigning of sales representatives, or both. In light of that information, the EEOC merely seeks more information about KMBS s hiring and assignment practices. See EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994) ( EEOC correctly points out that the appropriate scope of investigation depends on the circumstances of the particular case, and in this case we agree that the circumstances point to a broader inquiry than was granted below. ). Whether and why KMBS hires African- Americans only for certain territories, specifically, the territory to which Mr. Thompson was assigned might cast light on whether KMBS discriminated against 18

25 Mr. Thompson in his terms and conditions of employment by assigning him to a particular sales office or sales team within that office. According to KMBS, even after the EEOC learned that Mr. Thompson may have worked in a racially segregated workforce, the EEOC had no authority to investigate further to determine the existence or reason for that apparent segregation. That is, according to KMBS, the EEOC s investigation is sharply circumscribed by the specific facts mentioned in Mr. Thompson s charge. See KMBS Br. at 16 ( The information sought by the EEOC in its subpoena... goes far beyond an inquiry into whom KMBS has disciplined for failing to meet sales quota and discharged for complaining about race discrimination. ). As KMBS argues, Thompson did not complain in his charge or at any point during the EEOC s investigation that he was not hired by KMBS or that he reapplied and was denied employment 8 ; Thompson s charge is limited geographically to the Tinley Park branch and temporally to the period of his employment: the eight-month span of March through October 2005 ; and [l]astly, the charge relates to one narrow job 8 KMBS claims that [h]iring and recruitment at KMBS is handled independently by the Chicago branches and KMBS s corporate Employee Relations Department does not have authority or control in directing or steering applicants to open positions. KMBS Br. at 16 n.5. This contention goes to the merits of any potential claim that KMBS discriminates in hiring, but it has no bearing on the issues in a summary proceeding to enforce a subpoena. Further, the veracity and relevance of that statement is for the EEOC to decide in the course of the investigation. See Staley, 711 F.2d at 787 ( [T]he mere assertion by an employer that his employment practices are lawful does not deprive the EEOC of jurisdiction. No action would ever be brought against an employer if the jurisdiction of the EEOC depended upon the assertions of employers as to whether their own employment practices were lawful. ). Indeed, the EEOC investigator determined that hiring practices at each branch are not independent from headquarters. R.20, at

26 classification: the sales representative position. 9 Id. at (emphases in original). Any other information, says KMBS, is completely divorced from the charge. See id. at 16. KMBS s crabbed reading of the EEOC s investigative authority finds no support in the law. Courts uniformly uphold the relevancy of EEOC subpoenas seeking information about discrimination not specifically alleged in the charge, Bay Shipbldg., 668 F.2d at 311, because the existence of 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, United Air Lines, 287 F.3d at 652 (quoting Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969)). In Bay Shipbuilding, the charge alleged that women were denied access into a particular electrical department and its apprenticeship program. Id. The EEOC requested information about the company s hiring practices, specifically, information regarding the company s advertisements and help-wanted ads. Id. Bay Shipbuilding argued that the information requested was irrelevant, but this Court rejected that argument, reasoning that an employer s method of recruitment and job advertisements may serve to determine whether the employer has discriminated 9 Contrary to KMBS s view, the subpoena actually is limited to seeking information only about sales representatives. Request (1) asks for information about all applicants who indicate[d] an interest in sales ; (2) asks for information about who, of all the applicants, was considered for a sales positions; (3) asks for information about job interviews or other communications with individuals who were considered for sales positions; (4) asks for information about evaluations made about anyone considered for a sales position; (5) asks for contact information and race of anyone who was hired into a sales position; and (6) asks for information about the criteria used to assess sales applicants. 20

27 against women in hiring for positions in the electrical department, thereby discouraging women already employed from applying or transferring to those positions. Id. In Blue Bell Boots a case which this Court relied upon in Bay Shipbuilding and more recently in United Air Lines the charges alleged termination on the basis of race and the subpoena sought information about people in different classifications than the charging parties. 418 F.2d at 356, 358. Blue Bell Boots argued that the subpoena was irrelevant to the charge, but the Sixth Circuit rejected that argument, reasoning that 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. at 358. In EEOC v. Roadway Express, Inc., the Sixth Circuit reaffirmed that evidence that an employer discriminated in one situation or employment position is relevant to a determination of whether the employer discriminated in other circumstances, concluding 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. 750 F.2d 40, 43 (6th Cir. 1984). 21

28 In Joslin Dry Goods Co. v. EEOC, the EEOC subpoenaed hiring information based upon a charge of racial discrimination in termination. 483 F.2d 178, 180 (10th Cir. 1973). The district court refused to enforce the subpoena because the employee had not been subjected to hiring discrimination, but the Tenth Circuit reversed, reasoning that the subpoenaed information was relevant to the charge because hiring practices and policies relate to hiring as well as firing. See id. at 184 ( The factual statement of a wrongful discharge is enough to justify an investigation of employment practices and policies, as to hiring as well as firing. ). In Staley, this Court made clear that a charge alleging race and sex discrimination in promotion and training policies was enough to entitle the EEOC to hiring data. 711 F.2d at 787. And in EEOC v. Citicorp Diners Club, Inc., the Tenth Circuit rejected Citicorp Diners Club s argument that since the charge alleged discrimination based on race and sex, the EEOC could not request information about national origin, reasoning [t]hat is too narrow a reading of the EEOC s investigative authority. See 985 F.2d 1036, 1039 (10th Cir. 1993) (reiterating that a factual statement of a wrongful discharge is enough to justify an investigation of employment practices and policies, as to hiring as well as firing. ) Likewise, in Tempel Steel, this Court concluded that requested information regarding the sex and national origin of applicants and newly hired employees was relevant even though the charge alleged only racial discrimination in rehiring. See 814 F.2d at 485 n.9 (citing EEOC v. University of New Mexico, 504 F.2d 1296, (10th Cir. 1974)). And, in Ford Motor Credit, the Sixth Circuit concluded that a subpoena seeking hiring information was relevant to a charge of sex discrimination in promotion. 26 F.3d at ( Comparative information as EEOC states is absolutely essential to a determination of discrimination. ). 22

29 Therefore, as courts have uniformly held, an EEOC subpoena seeking hiring information is relevant to a charge s allegations of racial discrimination in terms and conditions of employment, discipline, and termination. The district court here properly enforced the EEOC s subpoena because whether and why an employer creates and maintains a racially segregated workforce might cast light upon a charge making such allegations by one of the members of that racially segregated workforce. That the information in this case is relevant to the charge also is supported by the fact that the information the subpoena seeks is relevant both in an investigatory sense and an evidentiary sense. See United Air Lines, 287 F.3d at 652 (noting that relevance standard employed in the subpoena context is broader than that employed in deciding whether to admit evidence in federal court ); Staley, 711 F.2d at 783 (same). The information sought here would, at the very least, be relevant in an investigatory sense because no matter what it shows, the information would help the EEOC craft additional requests and otherwise focus its investigation. The information the subpoena seeks is also relevant under the more demanding evidentiary standard. Indeed, in employment discrimination cases, evidence about the circumstances of other employees terms and conditions of employment is not only relevant it is often critically necessary. A plaintiff can establish racial discrimination under Title VII using either the direct or indirect method. Under the direct method, the plaintiff must present direct or circumstantial evidence that creates a convincing mosaic of 23

30 discrimination on the basis of race. Winsley v. Cook County, 563 F.3d 598, 604 (7th Cir. 2009); Troupe v. May Dep t Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). Circumstantial evidence that would create a convincing mosaic of discrimination includes evidence of systemically better treatment of employees outside the protected class. Coffman v. Indianapolis Fire Dep t, 578 F.3d 559, 563 (7th Cir. 2009). As this Court noted in Troupe, discrimination against other employees is part of the mosaic of discrimination. 20 F.3d at 737. On the other hand, failure to provide sufficient circumstantial evidence that creates a mosaic of discrimination can be fatal to a plaintiff s claim. See, e.g., Stephens v. Erickson, 569 F.3d 779, 787 (7th Cir. 2009) (stating that the plaintiff s mosaic was a few tiles short of creating an image of intentional discrimination. ). Evidence of a segregated work force and its causes also is relevant to demonstrating racial discrimination under the indirect method insofar as it might show that whatever reasons KMBS may give for terminating Mr. Thompson are pretextual. As the Supreme Court recognized in McDonnell Douglas v. Green, 411 U.S. 792, (1973), other employment practices are relevant to showing pretext: statistics as to petitioner s employment policy and practice may be helpful to a determination of whether petitioner s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. See also Motorola, Inc. v. McClain, 484 F.2d 1339, 1345 (7th Cir. 1973) ( The pretextuality issue encompasses the employer s general employment policy and practice, a search for a general pattern of discrimination against blacks, and a determination of whether 24

31 valid reasons for his rejection were in fact a coverup for a racially discriminatory system. (internal quotations omitted)). Thus, [i]nasmuch as evidence is admissible to establish pretextuality, the investigatory powers of [the] EEOC to determine whether reasonable cause exists to believe a violation of Title VII has occurred, obviously extend at least as far. Id. at Therefore, because the information the EEOC seeks would be relevant to the charge in an evidentiary sense, it plainly is relevant in an investigatory sense. KMBS argues that the unbroken chain of cases upholding the relevancy of EEOC subpoenas seeking information about discrimination not specifically alleged in the charge should be ignored by this Court because, according to KMBS, [n]ot one post Shell Oil case relied on by the EEOC below has converted an individual termination and terms and conditions charge into an investigation... into a Company s hiring practices. KMBS Br. at 14. This argument is misguided. First, KMBS s argument implies that Shell Oil marked a sea change in the relevancy standard but it plainly did not. The pre-shell Oil cases are not only still good law, but provide the foundation upon which the law of Title VII administrative subpoenas sits. As the Supreme Court stated in Shell Oil: Since the enactment of Title VII, 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. 466 U.S. at The Supreme Court noted that when Congress amended Title VII in 1972, it undoubtedly was aware of the manner in which the courts were construing the concept of relevance and implicitly 25