                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             June 28, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION,

       Plaintiff - Appellee,
                                                             No. 18-1188
 v.                                             (D.C. No. 1:16-MC-00055-WJM-MLC)
                                                              (D. Colo.)
 CENTURA HEALTH,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.
                  _________________________________

      Centura Health (“Centura”) appeals the district court’s orders enforcing in part

an administrative subpoena issued to it by the Equal Employment Opportunity

Commission (“EEOC”). We affirm exercising jurisdiction under 28 U.S.C. § 1291.1


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
      1
        See EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1038 (10th Cir.
1993) (explaining that, for § 1291 purposes, “[a]n order of a district court directing
the production of records described in an administrative subpoena is a final
judgment”).
                                           I

      When investigating charges of discrimination, the EEOC may obtain evidence

that “relates to unlawful employment practices . . . and is relevant to the charge under

investigation.” 42 U.S.C. § 2000e-8(a). The EEOC is authorized to obtain such

evidence by issuing a subpoena and seeking a court order enforcing it. § 2000e-9;

McLane Co. v. EEOC, 137 S. Ct. 1159, 1164 & n.1 (2017). The EEOC exercised

those powers when it sought information from Centura, a multi-facility healthcare

organization operating primarily in Colorado. Between February 2011 and October

2014, eleven current or former Centura employees, working across eight Colorado

locations, filed charges of discrimination with the EEOC. They alleged that Centura

violated the Americans with Disabilities Act (“ADA”) by terminating their

employment or refusing to allow them to return to work after medical leave. These

employment decisions were allegedly made because of their disabilities or their

requests for accommodations.

      After receiving the first charge in February 2011, the EEOC requested

information from Centura related to that charge, including the employee’s personnel

file and a list of all positions Centura had open at the time her employment ended.

Centura provided the information. After three more charges had been filed, the

EEOC informed Centura that its “investigation may include like and related

allegations by other aggrieved individuals involving bases and/or issues not directly

affecting the Charging Party, as well as those like and related issues not alleged in

the charge.” The EEOC asked Centura for information about all employees from

                                           2
January 2009 through the date of the request in February 2012 who had “requested

and/or who were placed on non-[Family and Medical Leave Act (“FMLA”)]” or

FMLA leave, or who had requested an accommodation for their disability. Centura

responded that the request was overbroad and unduly burdensome and asked the

EEOC to narrow the scope of its request.

      A month later, the EEOC sent Centura an identical request identifying multiple

charges as the objects of its investigation. Centura provided some of the requested

information but argued some requests were irrelevant to the charges at issue and

contended the cases involved “unique and isolated circumstances at separate

locations” that did not suggest a pattern of discrimination that might justify the

EEOC’s broad request. As the remainder of the eleven charges were filed, the EEOC

sent Centura more requests for information.2 Centura provided information regarding

each charging party but refused to provide further information, arguing the requests

sought information irrelevant to the individual charges and were overly burdensome.

      The EEOC issued an administrative subpoena in December 2014. Subpoena

items 9 and 18(e) requested identifying information for each employee who worked

at the same facilities in Colorado as the eleven charging parties and who, between

August 2009 and 2014, requested an accommodation due to a medical condition

(item 9) or were identified as disabled (item 18(e)). Item 9 requested information

about the identified employees’ accommodation requests, the outcome of those


      2
       Those requests are referred to in the notices of the charges the EEOC sent to
Centura, but we are unable to locate them in the appendix Centura filed.
                                           3
requests, and any disciplinary action or separation from employment. Item 18(e)

requested for each identified employee the type of medical condition at issue and

information about discipline or separation from employment.

      Centura petitioned the EEOC to revoke or modify the subpoena. The EEOC

denied the petition and directed Centura to provide the requested information.

Centura refused, so the EEOC filed a subpoena-enforcement action in the district

court. Centura challenged only parts of the subpoena, including items 9 and 18(e),

arguing that compliance would be unduly burdensome and that the information

sought was not relevant to the eleven individual charges within the meaning of

§ 2000e-8(a). It alleged the information would only be relevant to a

pattern-or-practice investigation, but the EEOC had not filed a pattern-or-practice

charge.

      The district court issued an order enforcing the subpoena in part. The court

ordered Centura to provide information it did not object to and ruled against Centura

regarding the relevance of the information requested in items 9 and 18(e). The court

determined the disputed information was relevant within the meaning of

§ 2000e-8(a), “given the number of ADA charges the EEOC has received and the

widespread geographic distribution of those charges.” The court noted that relevance

is “generously construed” and that “it is crucial that the Commission’s ability to

investigate charges of systemic discrimination not be impaired.” It referred the

undue burden question to a magistrate judge, who concluded producing information



                                           4
related to items 9 and 18(e) would not be unduly burdensome and declined to take up

Centura’s contention that the information was not relevant.

       The district court overruled Centura’s objections to the magistrate judge’s

undue burden decision. The court construed Centura’s objections in part as a motion

to reconsider the earlier ruling regarding relevance and determined this argument

lacked merit.3 The court therefore ordered Centura to comply with the magistrate

judge’s order. Centura appealed.

                                             II

       Centura now challenges only the district court’s relevance determination, not

its undue burden ruling. We review a district court’s ruling on the enforceability of

an EEOC subpoena for abuse of discretion. McLane Co., 137 S. Ct. at 1164.

“[W]hether a district court employed the correct standard of relevance—as opposed

to how it applied that standard to the facts of a given case—is a question of law,” and

a district court “necessarily abuse[s] its discretion if it based its ruling on an

erroneous view of the law.” Id. at 1168 n.3 (quotation and citation omitted). A

district court also abuses its discretion if it “relies on clearly erroneous factual



       3
         Centura pointed out that in an email it received from the EEOC after the
district court had ruled on relevance, the EEOC said it wanted to use the disputed
information to “determin[e] Centura’s usual policies and procedures regarding the
provision of reasonable accommodation.” Centura argued this statement amounted to
a concession that the request was an attempt “to pursue plenary discovery for a
pattern and practice investigation, rather than prosecuting the claims of the
individually named Charging Parties.” The district court rejected this argument
because “procedures are as relevant to investigation of an individual charge as they
are to a pattern-or-practice charge.”
                                             5
findings, or where there is no rational basis in the evidence for its ruling.” Trentadue

v. FBI, 572 F.3d 794, 806 (10th Cir. 2009) (quotation omitted).

      The EEOC has the authority to subpoena evidence that “relates to unlawful

employment practices . . . and is relevant to the charge under investigation.”

§ 2000e-8(a). This limitation “is not especially constraining” and “afford[s] the

Commission access to virtually any material that might cast light on the allegations

against the employer.” EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (emphasis

added). But courts must not “read relevancy so broadly as to render the statutory

requirement a nullity.” EEOC v. TriCore Reference Labs., 849 F.3d 929, 937

(10th Cir. 2017) (quotation omitted).

      In the district court, the EEOC had the burden of establishing that the

subpoenaed information is relevant to the charges under investigation. Id. The

EEOC had to show: (1) “it has a realistic expectation rather than an idle hope that

the information requested will advance its investigation”; and (2) a “link between

[its] investigatory power and the charges of discrimination.” Id. (quotation omitted).

      We conclude the district court did not abuse its discretion in determining the

EEOC met its burden. The relevance standard under § 2000e-8(a) “sweeps more

broadly than it would at trial.” EEOC v. McLane Co., 857 F.3d 813, 815 (9th Cir.

2017). This is because “[a]t the investigative stage, the EEOC is trying to determine

only whether ‘reasonable cause’ exists ‘to believe that the charge is true.’” Id.

(quoting § 2000e-5(b)). And at the summary judgment stage of litigation, for

example, evidence that an employer has a discriminatory policy “is potentially

                                           6
relevant” to an individual charge. Jones v. United Parcel Serv., Inc., 502 F.3d 1176,

1188 (10th Cir. 2007). Because evidence of a discriminatory policy is relevant to

individual charges under the narrower relevance standard in a civil case, it follows

that such evidence is relevant to individual charges under the broader standard of

§ 2000e-8(a) because it “might cast light” on the charges under investigation. Shell

Oil Co., 466 U.S. at 69; see also EEOC v. Associated Dry Goods Corp., 449 U.S.

590, 604 (1981) (“Statistics and other information about an employer’s general

practices may certainly be relevant to individual charges of discrimination[.]”); Blue

Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (“[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 racial discrimination”

(quotation omitted)).

       That is not to say there are no limits. Our decisions in EEOC v. Burlington

Northern Santa Fe Railroad, 669 F.3d 1154 (10th Cir. 2012) and TriCore Reference

Laboratories set some boundaries in cases in which the EEOC seeks

pattern-or-practice evidence based only on individual charges. But the limits

outlined in those cases do not require us to conclude the district court abused its

discretion in this case.

       In Burlington Northern, we determined the district court did not abuse its

discretion in denying a petition to enforce an administrative subpoena requesting

nationwide pattern-or-practice information because it was not relevant to charges of

racial discrimination filed by two employees in Colorado. 669 F.3d at 1159.

                                           7
Because the information request referenced only the two individual charges and the

EEOC did not refer to any other charging parties or otherwise “indicate that an

additional charge [was] at issue,” id. at 1157, the EEOC had done nothing to

“transcend the gap between the pattern and practice investigation and the private

claims,” and the “wide deference” courts afford to the scope of EEOC subpoenas

could not bridge that gap, id. at 1158 (quotation omitted). We did, however, suggest

the subpoena might have been enforceable if it had been confined to Colorado

positions and offices. Id. In this case, the EEOC’s subpoena was based on eleven

charges and requested information pertaining only to the locations in Colorado where

the charging parties worked. A subpoena adhering to the geographical scope of

individual charges supports a determination that pattern-or-practice evidence is

relevant to the investigation of individual charges.

       In TriCore Reference Laboratories, the EEOC sought judicial enforcement of

an administrative subpoena it issued while investigating a single charge of

discrimination. 849 F.3d at 929. While “a single discriminatory act does not, by

itself, warrant a broader pattern-or-practice investigation,” id. at 939, in this case the

EEOC based its request for pattern-or-practice information on eleven charges.

       Centura argues that in cases in which there is no pattern-or-practice charge,

pattern-or-practice evidence is only relevant if there is a specific and substantial

connection between the individual claims and the information requested, rather than a

general possibility of finding patterns or practices. Centura contends the only

common theme tying the requested information to the eleven individual charges is the

                                             8
broad fact that all the charges alleged disability discrimination. Relatedly, Centura

distinguishes cases the EEOC relies on where pattern-or-practice evidence was held

relevant to individual charges, pointing out that each case related to the investigation

of a policy more specific than some generic form of discrimination.4 Centura’s

representations of the disparate factual nature of the eleven charges is largely

accurate, and we agree with the distinctions it draws regarding the EEOC’s cases.

But Centura fails to persuade us that eleven charges of disability discrimination, most

alleging a failure to accommodate across a handful of an employer’s facilities, are

insufficient to warrant finding information regarding an employer’s pattern-or-

practice relevant.

      Centura also faults the district court for relying on the statement in Shell Oil

that it is important not to impair the EEOC’s ability to investigate systemic

discrimination, 466 U.S. at 70, pointing out that in Shell Oil, there was a

pattern-or-practice charge, see id. at 88-89. Given the absence of a pattern-or-

practice charge against Centura, the district court’s reliance on this statement is

questionable, but it is not enough to alter our relevance analysis. See Citicorp Diners

Club, 985 F.2d at 1039 (“The EEOC seeks to vindicate the public interest, which is

broader than the interest of the charging parties.” (quotation omitted)); Blue Bell


      4
         Centura also makes much of the fact that the EEOC first sought
pattern-or-practice evidence based only on the first charge, and then, when Centura
resisted, laid in wait for several years until it had amassed ten more charges to
support what Centura views as the proverbial fishing expedition. But Centura has not
pointed to any prohibition on the EEOC’s course, and our task is to assess the district
court’s relevance determination based on the eleven charges.
                                            9
Boots, Inc., 418 F.2d at 358 (“The Commission may, in the public interest, provide

relief which goes beyond the limited interests of the charging parties,” and therefore

“evidence concerning employment practices other than those specifically charged by

complainants may properly be considered by the Commission in framing a remedy.”).

      Finally, Centura argues that holding pattern-or-practice evidence can be

relevant to individual charges renders superfluous Congress’ 1972 expansion of the

EEOC’s powers to include investigating pattern-or-practice charges when such

charges have been filed. See § 2000e-6(e). We disagree. The grant of authority to

the EEOC to investigate patterns or practices of discrimination accompanied the

transfer of that authority from the Attorney General. See § 2000e-6(c), (d); Gen. Tel.

Co. v. EEOC, 446 U.S. 318, 328 (1980) (“The 1972 amendments [to Title VII of the

Civil Rights Act of 1964] . . . transferred to the EEOC the Attorney General’s

authority to bring pattern-or-practice suits on his own motion.”). There is no

evidence that in transferring that authority, Congress meant to limit the type of

evidence the EEOC can obtain when investigating individual charges.5




      5
        Because we conclude the pattern-or-practice evidence is relevant to the
investigation of individual allegations against Centura in this case, we need not
address the parties’ arguments regarding whether the information might also allow
the EEOC to identify comparators.
                                          10
                                       IV

    The district court’s orders enforcing the administrative subpoena are

AFFIRMED.


                                        Entered for the Court


                                        Carlos F. Lucero
                                        Circuit Judge




                                       11
