Equal Employment Opportunity Commission v. United Parcel Service, Inc.

EQUAL OPPOR- EMPLOYMENT COMMISSION,

TUNITY

Plaintiff-Appellant, SERVICE,

UNITED PARCEL

INC., Defendant-Appellee.

Docket No. 08-5348-cv. of Appeals,

United States Court

Second Circuit.

Argued: Aug. 19, 2009.

Decided: Nov. (James Gantz, L. Attorney Lee,

Juliе L. Counsel, Deputy General Vincent Black- wood, Acting Counsel, Associate General counsel), Equal Employment Opportuni- ty Commission, DC, Washington, for Plain- tiff-Appellant. Lario,

Wendy LLP, Day Pitney Johnson Morristown, N.J., for Defendant-Appellee. KATZMANN, Before: NEWMAN Judges, TRAGER, District Judge.* Judge concurs, NEWMAN and also files concurring a separate opinion. * York, Trager sitting by Honorable designation. David G. of the United of New States District Court for the Eastern Distriсt manager The district Human Resources PER CURIAM: his or will communicate with her district to a dis- us review upon This case calls man- manager, district Labor Relations to enforce an adminis- court’s refusal trict manager, and H.R. that a ager, region by Equal the Em- subpoena filed trative exemption for has been re- request Commission Opportunity ployment .... Human Region ceived Resources (“EEOC”). requested infor- The Plan- Corporate will contact Workforce to religious exemptions about mation how who will with all neces- ning, coordinate (“UPS”) Service, Parcel Ine.’s Uni- United Labor sary corporate groups Legal,— Appearance and Personal Guidelines form Relations, Procurement, etc.—to obtain Guidelines”), which to (“Appearance consistent resolution a answer.... The country, the every facility UPS across flow back the district in rеverse will to court nationwide. district handled request, namely, from order of the initial that this nationwide information concluded region through the Human Corporate to the two individual not relevant was to the H.R. manager Resources by being investigated the EEOC. manager. applied court too hold that the district We process updated January Id. This on a of and we standard relevance restrictive provide Region to thаt Human reverse its order. therefore Corporate contact Resources would “if Planning necessary.” J.A. Workforce Background memoranda, according Despite 221. these prohibit Corporate Appearance Planning Guidelines Workforce UPS’s to UPS’s Owen, Craig practice, requests at public-contact positions1 Manager employees wearing any facial for accommodatiоn are reviewed and deci- all facilities from UPS made, case-by-case by “on the lip. Until em- sions a basis hair below the lower facility at the the human resources staff UPS comply who refused to with ployees is made.” request rea- where J.A. religious for Appearance Guidelines public-contact po- placed were not sons Abdullah, Bilal a On November In formalized a reli- sitions. UPS beard, wears in- practicing Muslim who a for policy to allow gious accommodation Rochester, with New terviewed UPS’s from granting exemptions limited facility position for the of seasonal York religious Appearance Guidelines for by helper and sorter. When told driver’s A memo dated October beliefs. to that he would have the interviewer requests a which process established beard, main- explained his he that shave exemption frоm the Guide- religion. taining part a beard was his religious should be evalu- interviewer, lines for reasons re- According to she the UPS ated, that that all so could “ensure positions UPS seasonal were sponded other exemption ... will be requests for require future Abdullah available would in a manner.” J.A. 243. handled consistent his On to shave beard. November orientation, employee 2005, an process, attended Pursuant Abdullah fill out seeking exemption such an can submit he was a form where asked He supervisor to his immediate he clean shaven. request or her stated would be re- could his manager, then forwards the stated that he not shave again who religion. his He was Resources because of district Human beard quest computer system logged out of then UPS’s manager. public job. while on require employ- ee to meet positions 1. Public-contact UPS, Aсcording was not hired. accommodate practice. his because, Moreover, Abdullah hired on was not No- Farhan “I alleged: also believe 25, 2005, vember he Respondent learned that had pattern or prac- has provided security a social number false refusing tice of to accommodate the reli- thereby rendering with him application, observances, his gious practices and beliefs ineligible for employment. employees.” 2007, its J.A. 24. In June Manager the UPS District for Human Re- a charge

Abdullah filed with sources contacted Farhan and told him January EEOC’s office on Buffalo that he could come fill out a form to re- discrimination alleging religious a quest religious accommodation for the Rights violation of Title VII of the Civil so, position. full-time driver Farhan did VII”). (“Title Act of 1964 request granted and the was later that Farhan, Muslim, Muhammed alsо a be- month. gan Dallas, working at as a UPS Texas In the investigation course of its of Ab- package handler in 2001. The position did dullah’s charge, the EEOC’s Buffalo office require not any public. contact with the a request sent In UPS for information January 2007, seek- accepted his bid for (1) ing, inter alia: all a documents to position. full-time related driver In or about February 2007, Appearance Guidelines and a Farhan list of all started to become jobs Guidelines; religious began subject more which to the grow and to a beard. (2) In April identifying job for all he was told to for a information report appli- so, full-time denied position. employment driver he cants When did because of their he was told refusal to any- Appearance that UPS ‍‌‌​‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌​​‍does not allow adhere to the (3) January 1, 2004; one with a to be a Guidelines since beard driver. Farhan iden- spokе -with manager tifying his information all repre- employees and union for who requested a religious sentative and asked for a religious accom- accommodation to modation to him the Appearance allow to a Guidelines and drive UPS the out- truck. manager requests comes those January said that Farhan since (4) 2004; could beard, not drive if identifying for UPS he had a information for employees would return all position have to to his who were as terminated for (which package reasons public- relating Appearance handler is not a Guide- week, position). contact Later lines January objected Far- since 2004. UPS request, han went to local to explaining human that it resources did not office sought and asked for a have the request any form to information central- religious ized location and keep accommodation. Both human re- did not records on job applicants sources spoke requested officers whom he who said ac- they knew of such commodation to days no form. Two Guide- later, he Mesquite, went to the UPS lines. hub

Texas, to ask a religious for accommoda- 20, 2007, On November the EEOC filed tion. The human resources officer there a petition in the United States District also did not about any know form to re- the Western District of New quest an accommodation. York to subpoena. enforce the By order

Farhan charge filed with 2, 2008, the Texas September dated the district court Workforce Commission and the EEOC on petition, denied the holding that the sub- April 2007, alleging that he had been poena overly broad and nation- prevented working from as a driver be- al information not relevant to the individu- beard, cause of his UPS refused to al being investigated. appeal This argument, held on is entitled access [T]he [EEOC] After oral followed. charge to evidence “relevant” to the un- 24, 2009, parties we directed the August That investigation. der limitation on the mutually agreeable res- attempt to reach investigative authority is Commission’s informed of this case. We were olution especially constraining. Since the those October letter dated VII, gen- enactment of Title courts have Hence, failed. we issue this discussions erously the term “relevant” construed opinion.

and have afforded the Commission ac- virtually any that might cess to material Discussion light allegations against on cast VII, required Title the EEOC is Under [Moreover], employer ... it is crucial to investigate charges of discrimination to ability that the Commission’s investi- whether there is reasonable determine charges systemic gate discrimination employer that an is en- cause to believe impaired. not be employment practice, in gaged an unlawful Co., 54, 68-69, EEOC Shell Oil 466 U.S. 2000e-5(b), may § see 42 U.S.C. issue (1984). 104 S.Ct. 80 L.Ed.2d in subpoenas investiga- connection with its mind, these in With standards tion, § “any id. 2000e-9. It is entitled to applied hold that the district court too investigated any person being evidence of restrictive a standard of relevance in de employment ... to unlаwful that relates termining that information about how reli by and is practices [Title VII] covered gious exemptions Appearance to the UPS investiga- to the under charge relevant (or not) granted Guidelines are are nation 2000e-8(a). § tion.” id. was not being wide relevant clarified, recently As we the dis investigated. following facts and fac proceeding trict court’s “role in a to en First, tors are relevant to our decision. subpoena force an administrative is ex Appearance apply every the Guidelines tremely Response, limited.” Am. Med. facility country. UPS Joslin Cf. (internal quotation 438 F.3d at 192 marks EEOC, Dry Goods. Co. v. omitted). of an To obtain enforcement (10th (where Cir.1973) complainant ‍‌‌​‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌​​‍al agency subpoena, “[a]n administrative leged subjected racially that she to a must show only ^[1] that the investigation motivated discharge at defendant’s Down рursuant legitimate conducted to a will be store, affirming town Denver inquiry may that the be rele purpose, [2] beyond subpoena court’s refusal to enforce vant to the purpose, ^[3] that the informa that store because each store operated already not within [the tion is separate employment unit and there agency’s] possession, and ^[4] that the ad were no hiring or firing practices or proсe ... have steps required ministrative been stores). applied dures that to all (internal quotation Id. marks followed.” Second, until UPS did not allow omitted). subpoena A that satisfies these who, reasons, religious could employees for party criteria will be enforced unless Appearance not meet Guidelines to opposing enforcement demonstrates positions. A memo public-contact work unreаsonable or that com subpoena a pro- in October 1999 established issued “unnecessarily pliance would be burden by requests exemption for cess which (internal quotation Id. at 193 some.” evaluated, could should be so UPS omitted) omitted). (emphasis marks requests exemp- that all for “ensure future ... in a consistent explained: has tion will be handled Supreme As the process manner.” 243. The initial J.A. Conclusion forwarding request up involved to Cor- The district court’s determination that Third, Planning.1 Ab- porate Workforce religious exemp- information about how dullah and Farhan were both told that tions to the UPS Guidelines not truck they could drive UPS while handled nationwide was relevant charges being investigated by wearing a beard. Neither was told he this case was erroneous. exemption request poli- could from the Therefore, the order of the district court is rеasons, cy religious and when Farhan reversed and the case remanded for fur- specifically requested form to for a proceedings opin- ther consistent with this accommodation, religious he was told ion. two different offices that none exist- Finally, charge alleg- ed. Farhan’s EEOC NEWMAN, Judge, JON 0. specific es not one case of failure to concurring: accommodate, pattern practice but a or I opinion concur the Court’s and write failing discrimination in to accom- separately to consider the standard of re- modate those who cannot meet the UPS applicable appellate view consideration Guidelines for rea- of a district court’s determination of the sons. relevance of information sought an ad- subpoena. ministrative why arguments subpoe- UPS’s as to Preliminarily na I note that with rеspect should not be enforced are without review of the ultimate decision of a district merit, only one any warrants discus- court whether to enforce an administrative argues sion here. that the two subpoena, generally it is said that the stan justify fail to nationwide discov- appellate dard for review is abuse of dis ery as Abdullah was not hired because he See, cretion. e.g., v. Davis Polk & Ratliff gave Security an incоrrect Social number Wardwell, (2d 165, Cir.2003); 354 F.3d 168 actually and Farhan was accommodated. GlaxoSmithKline, 141, FTC v. 294 F.3d However,' arguments UPS’s as to the (D.C.Cir.2002); Wentz, 146 FDIC v. 55 prevent merits do not the EEOC from in- (3d 905, Cir.1995); F.3d 908 NLRB v. Car Indeed, vestigating charges. these at the Processors, 507, olina Food 81 F.3d ‍‌‌​‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌​​‍510 investigatory stage, the EEOC is not re- (4th Cir.1996) (quoting NLRB v. G.H.R. quired to show that there probable is (5th Energy Corp., 707 F.2d 113 Cir. cause to believe that discrimination oc- 1982)). A opinion Sixth Circuit has said produce curred or to evidence to establish appellate that weigh task is “to prima case of discrimination. See facie likely requested relevance of the material Oil, Shell 466 U.S. at 104 1621 S.Ct. investigation against the burden to (the “may employer insist producing Ford of the material.” EEOC v. disgorge any evidence relevant to the alle- Ford Motor Corp., Credit 26 F.3d 47 gations of discrimination contained in the (6th Cir.1994). However, the Ninth Cir charge, regardless of the strеngth of the cuit has stated that it reviews a district evidentiary foundation for those allega- court’s order to enforce an EEOC adminis tions”). novo, subpoena trative de see EEOC v. above, process updat- Corporate 1. As Planning necessary.” discussed this Workforce "if January provide ed on 2002 to that- Re- J.A. 221. gion only Human Resources would contact

141 proposition to the “fact” Corp., 558 F.3d 846 Our adherence Express Fеderal Response proble- in is Cir.2009). American Medical (9th matic. We said: a district respect to review of With agency’s court defers to the The district in- of whether the determination court’s appraisal relevancy, which must be sought by an administrative formation clearly accepted long so as it is not relevant, the case law has de- subpoena is and, turn, affirm a wrong, district entirely satis- in different and not veloped finding relevancy court’s unless says ways. line of cases factory One is determination erroneous. of rele- court’s determination Response, American Medical 438 F.3d at finding of fact reviewed vance is (internal quotation marks and citation The notion that relevance clear error. omitted). Since the district court into the case crept is “factual” this context to use the lenient def- obliged standard оf thought. much The first as- law without agency’s to an determination of erence rel- that I proposition of that “fact” sertion clearly wrong, that is not it evance would 14 in v. found is in footnote FTC have law, seem to be error of to be reviewed (D.C.Cir. Lonning, 539 F.2d 208 n. novo, de for a district court to fail to abide 1976). authority No was cited. The D.C. by obligation its that standard of promoted proposition then into deference.1 Anderson, text FTC Twо circuits have adhered to the “fact” (D.C.Cir.1979), citing footnote proposition independent of the chain of Lonning. Then Anderson was relied authority originated in the D.C. Cir instances, Corp., in v. In on FTC Invention Submission cuit. both the basis for such 1086, (D.C.Cir.1992), problematic. In adherence is also EEOC 965 F.2d 1089 Division, v. Electric Packard General Mo on in Invention Submission was relied (5th 315, Corp., tors 569 F.2d 318 Cir. Walde, v. F.3d Corp. Resolution Trust 18 1978), said, Fifth the “Since the (D.C.Cir.1994). 943, 946-47 in question of relevance this instаnce is proposition The “fact” then entered our a factual essentially determination con (and law when we its case cited Walde cerning interrelation or lack of the thereof Submission) in In quote from Invention re facts, uphold groups different we must (2d Cir.1993) McVane, 1127, 44 F.3d 1135 the district court’s determination unless it (“[I]f the district court concludes the clearly Presumably is erroneous.” Id. the by agency the rele- information is “facts” thе Court had mind were the vant, will affirm unless that determina- agency’s authorized investigative purposes erroneous.”). clearly tion is recent- More range sought. and the of information ly, proposition we adhered to the “fact” the enforcement of an [in “Relevance Response, NLRB v. American Medical subpoena] EEOC is determined terms (2d Inc., Cir.2006), 188, citing investigation 438 F.3d 193 than in terms of of the rather evidentiary Express, relevanсe.” Federal McVane. County Strip rejected possibili the court. But see In re I have considered and trict Nassau Cases, 219, (2d Cir.2006) ty appellate a 461 F.3d 225 that the standard of review of Search (“We 'noticeably court’s determination of relevance are less deferential when the “clearly when has denied than should be erroneous” review district court class status ”) (quoting granted it Par the enforcement is and de nоvo when when has certified class.’ Co., generally ker v. Time Warner Entertainment 331 it is denied. Standards of review do (2d Cir.2003)). vary depending in a not on the outcome dis F.3d 18 142 determining any they But have done so without hint

558 F.3d at 854. regarded in- relevance as an issue of fact to proper relationship between such facts standard, be reviewed for clear error. See United legal of a not a application volves Newport Shipbuilding States v. News & finding of fact. Co., (4th Dry Dock 471 862 F.2d Cir. Circuit, the Interestingly, origi- the D.C. 1988) (“The district took court too restric- proposition, nator of the “fact” has backed tive a view of Audit [Defense Contract “clearly away from the notion that errone- Agencyj’s access to contractor ‍‌‌​‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌​​‍defense rec- appellate ous” is the standard for review of ords.”); O’Neill, United States v. 619 F.2d ruling. a district court’s relevance In Di- (3d Cir.1980) (“It appears the trial rector, Supervision v. Vin- Office of Thrift gave weight court too little to the needs of LLP, Elkins, 124 F.3d 1304 son & Rights] [United States Civil Commis- (D.C.Cir.1997), stated, “If the FTC, sion.”);2 v. Adams 296 F.2d dispute turns on the relevance the infor- (8th Cir.1961) (“[T]he documents called for sought by government agency, mation relevant.”). reasonably are we have said that district court should recognize I that the issue of relevance of reject agency’s position unless it is information sought by an administrative burden, ‘obviously wrong,’ and subpoena might comprehend factual is- matter, a practical is on the defendant to sues. Determining what information is (emphasis meet that test.” Id. at 1307 sought and what investigative purposes an original). The D.C. Circuit then added agency pursuing might well be matters revealing this footnote: finding by of fact. “A the district court We have said that a district court’s reasonably that documents are relevant to determinаtion of relevance is reviewable legitimate agency purpose cannot be test, clearly us under the erroneous showing overturned absent a fac- Anderson, FTC v. 631 F.2d tual determinations on which it is based (D.C.Cir.1979) (quoting v. Lonning, FTC erroneous.” United (D.C.Cir.1976)). 539 F.2d 210 n. 14 Lines, (7th Cir.2002) Air Applying a ap- deferential standard on added). (emphasis But once those factual pellate review does not mean that the (or matters are undisputed), resolved аuthority district court has to determine the determination of whether the informa- relevance the first instance. To the tion sought bears a sufficient relationship contrary, light standard investigative purposes permit en- of the great deference the district court forcement subpoena predominant- of the agency. owes the ly law, requiring matter of adherence to at Id. 1307 n. 3. the standard of affording deferenсe to the Other circuits have shown no reluctance agency. The requirement relevance is to to reverse a district court that had consid- “generously be construed” and “is not es- ered an subpoena beyond pecially administrative constraining.” v. EEOC Shell Oil scope agency’s authority, 54, 68, of the Corp., 466 104 U.S. S.Ct. later, Circuit, year (3d affirming 2. A University Pittsburgh, the Third v. 643 F.2d 983 enforcing 1981). district court order an .administra placed Cir. Reliance was on Denicola subpoena, tive stated Co., that the district court’s (3d Murphy v. G.C. findings three the information 1977), unexceptional Cir. which had stated the relevant, already agency’s within the proposition findings that factual in Title VII possession, requested agency pursuant cases are for clear reviewed error. procedure were not erroneous. EEOC (1984). cases, 08-4245-PR, Docket Nos. In rare the rela- 08-4300-PR. L.Ed.2d so attenuated that a tionship might be Appeals, United States Court court, appellate an court review- or Circuit. Second order, enforcement ing a district court’s scope that the broad might properly rule Argued: July 2009. agency an has been exceeded. accorded Decided: Nov. when, case, in this a district court And as to an appropriate scope fails to accord legitimate demands for informa-

agency’s

tion, court is entitled to rale appellate has committed an the district court

error of law. join opinion,

I therefore the Court’s denial

which reverses the District Court’s “ap-

of enforcement because of rele-

plied too restrictive standard regards properly

vance.” That conclusion

relevance, context, a matter of this

law. Whitehead,

Henry PEREZ, Ju- Shedret Rosa, Gonzalez, Plain-

lio Carmelo

tiffs-Appellees-Cross-Appellants, DEPART-

WESTCHESTER COUNTY CORRECTIONS,

MENT as a OF

county agency, Pozzi, Rocco individu-

ally and as the commissioner of County Department

Westchester Amicucci,

Corrections, Anthony indi-

vidually and as the Administra- Senior County Jail,

tor of the Westchester

Captain Orlando, individually and as

facility grievance of the coordinator ‍‌‌​‌‌‌​‌​‌​‌​‌​​​​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌​​‍County Jail, Defendants-

Westchester

Appellants-Cross-Appellees.

Case Details

Case Name: Equal Employment Opportunity Commission v. United Parcel Service, Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 19, 2009

Citation: 587 F.3d 136

Docket Number: Docket 08-5348-cv

Court Abbreviation: 2d Cir.