### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3452

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION

,

Petitioner

‐ Appellee

,

v.

U NION P ACIFIC R AILROAD C OMPANY

, Respondent

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:14

‐ mc

‐ 00052

‐ LA

— Lynn Adelman

, Judge

.

____________________

A RGUED F EBRUARY 6, 2017

— D ECIDED A UGUST 15, 2017

____________________

Before R OVNER and W ILLIAMS

, Circuit Judges, and C ONLEY

,

District Judge

. *

C ONLEY

, District Judge

. Union Pacific Railroad challenges

the legal authority of the Equal Employment Opportunity

Commission to continue an enforcement action after issuing

* Of the Western District of Wisconsin, sitting by designation.2 No. 15

‐ 3452

a right to sue letter and subsequent resolution of the underly

‐ ing charges of discrimination in a private lawsuit. The EEOC

petitioned the district court to enforce its subpoena for Union

Pacific’s employment records related to these charges. After

denying Union Pacific’s motion to dismiss for lack of author

‐ ity to maintain the investigation under Title VII and the

EEOC’s own regulations, the district court granted the peti

‐

tion, prompting this appeal. While an issue of first impression

in this circuit, similar challenges have created a split in au

‐ thority between the Fifth Circuit in EEOC v. Hearst

, 103 F.3d

462 (5th Cir. 1997), and more recently the Ninth Circuit in

EEOC v. Federal Express Corporation

, 558 F.3d 842 (9th Cir.

2009). Both the United States Supreme Court and this court

have repeatedly recognized the EEOC’s broad role in promot

‐ ing the public interest by preventing employment discrimina

‐

tion under Title VII, including its independent authority to in

‐ vestigate charges of discrimination, especially at a company

‐

wide level. Accordingly, we agree with the district court that

neither the issuance of a right

‐ to

‐ sue letter nor the entry of

judgment in a lawsuit brought by the individuals who origi

‐ nally filed the charges against Union Pacific bars the EEOC

from continuing its own investigation.

I. Background

On January 3, 2011, Frank Burks and Cornelius L. Jones,

Jr., began working at Union Pacific as “Signal Helpers,” an en

‐

try

‐ level job that involves laying wires and cables, digging

trenches, changing signal lines, and climbing poles. Burks and

Jones were the only African

‐ American employees in their ori

‐

entation group. After a 90

‐ day probationary period, both be

‐

came eligible for possible promotion to an “Assistant Signal

Person” position. In June 2011, Jones applied to take theNo. 15

‐ 3452 3

Skilled Craft Battery Test (“SCBT” or “the test”), a require

‐

ment to seek the promotion. After receiving no response,

Jones reapplied in September 2011. Burks also applied to take

the test in October 2011. Neither, however, were ever pro

‐

vided the opportunity to do so.

Instead, on October 10, 2011, Union Pacific eliminated the

Signal Helper position in the zones where Burks and Jones

worked, and both were terminated. That same month, Burks

filed a charge with the EEOC, which states in pertinent part:

“I have been denied the opportunity to take a test for the As

‐

sistant Signalman position. On or about October 10, 2011, I

was discharged again. 1 I believe that I have been discrimi

‐

nated because of my race, Black, and in retaliation for having

engaged in protected activity.” Jones filed a similar charge the

following month.

After receiving notification from the EEOC that charges

had been filed, Union Pacific responded with a position state

‐

ment, attaching tables that listed Signal Helpers working in

the same district as Burks and Jones and the results of those

employees’ applications for promotion. In particular, a table

provided by Union Pacific showed that of the eighteen Signal

Helper applicants, eleven were white, six were black, and one

was Hispanic. Of the eleven white applicants, ten passed the

test and were promoted, while one failed and was denied the

promotion. The one Hispanic applicant passed the test and

was promoted. Of the six black applicants, Burks and Jones

1 Burks’ charge states that he was terminated again because he was

also fired after 20 days on the job. After filing an EEOC complaint that

alleged racial discrimination, however, Union Pacific opted to reinstate

Burks, acknowledging that he had been inadequately coached before ter

‐

mination. Burks returned to work in May 2011.4 No. 15

‐ 3452

are the only applicants who applied but were not adminis

‐

tered the tests. Of the other four applicants, none were pro

‐

moted, although the table does not state the reason.

In March 2012, the EEOC sent Union Pacific its first re

‐

quest for information seeking, among other items, a copy of

the test used by Union Pacific to promote Signal Helpers to

the Assistant Signalman position and company

‐ wide infor

‐

mation about persons who sought the Assistant Signalman

position during the relevant period. After Union Pacific re

‐

fused that request, the EEOC issued its first subpoena in May

2012 and brought suit to enforce it in March 2013. EEOC v.

Union Pacific R.R. Co.

, Misc. No. 13

‐ mc

‐ 22 (E.D. Wis.). The par

‐

ties then reached a settlement in which: (1) Union Pacific

agreed to provide identification information, including test

results, for all individuals who took the test for the Assistant

Signalman position during the relevant period of time; and (2)

the EEOC dismissed its enforcement action. However, the

EEOC contends that Union Pacific never provided this prom

‐

ised company

‐ wide information.

In July 2012, the EEOC issued a right

‐ to

‐ sue letter to both

Jones and Burks on their charges. See 42 U.S.C. § 2000e

‐ 5(f)(1)

(requiring the EEOC to provide a notice of right

‐ to

‐ sue to the

charging individual within 180 days of the filing of the

charge). Jones and Burks then filed a joint complaint, assert

‐ ing discrimination claims in the United States District Court

for the Northern District of Illinois. Burks v. Union Pacific R.R.

Co.

, No. 2012 C 8164 (N.D. Ill. Oct. 11, 2012).

In July 2014, the district court granted Union Pacific’s mo

‐

tion for summary judgment in the Jones and Burks’ lawsuit,

finding insufficient evidence to support their claims of hostileNo. 15

‐ 3452 5

work environment, retaliation for filing prior EEOC com

‐ plaints, and racial harassment. Burks v. Union Pac. R.R. Co

.,

No. 12 C 8164, 2014 WL 3056529 (N.D. Ill. July 7, 2014); see also

App. 017

‐ 034. Consistent with that finding, the district court

dismissed Jones and Burks’ claims with prejudice, and this

court later affirmed. Burks v. Union Pac. R.R. Co.

, 793 F.3d 694

(7th Cir. 2015).

While Jones and Burks’ action was still proceeding in dis

‐

trict court, the EEOC issued Union Pacific a second request

for information in January 2014, seeking information about

Union Pacific’s electronic storage systems, additional testing

and computer information, and details about Signal Helpers

across the company who were similarly situated to Burks and

Jones. Union Pacific again refused, and the EEOC served a

second subpoena in May 2014, which is the focus of this ap

‐ peal.

After Union Pacific administratively petitioned to revoke

or modify the subpoena, the EEOC brought an enforcement

action in September 2014. The district court denied Union Pa

‐

cific’s motion to dismiss, rejecting its arguments that the

EEOC lost its investigatory authority either (1) after the issu

‐

ance of a right to sue notice to Jones and Burks or (2) when the

district court granted judgment in favor of Union Pacific. The

district court also rejected Union Pacific’s challenge to the rel

‐

evance of the material requested and granted the EEOC’s mo

‐

tion to enforce its subpoena. This appeal followed.

II. Discussion

The appeal actually presents two issues. The first is a ques

‐

tion of law—whether the EEOC is authorized by statute to

continue investigating an employer by seeking enforcement6 No. 15

‐ 3452

of its subpoena after issuing a notice of right

‐ to

‐ sue to the

charging individuals and the dismissal of the individuals’ sub

‐

sequent civil lawsuit on the merits—which we review de novo

.

See EEOC v. United Air Lines

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

The second—whether the information sought in the subpoena

was relevant to the EEOC’s investigation—we review under

an abuse of discretion standard. See McLane Co. v. EEOC

, 581

U.S.

____, 137 S. Ct. 1159, 1170 (2017); United Air Lines

, 287

F.3d at 649. 2

A. Enforcement Authority

Title VII was amended in 1972 to provide the EEOC with

the authority to sue employers as a means “to implement the

public interest as well as to bring about more effective en

‐

forcement of private rights. Gen. Tel. Co. of Nw. v. EEOC, 446

U.S. 318, 326 (1980) (discussing 42 U.S.C. § 2000

‐ 5(f)(1)). In

‐

deed, this amendment expressly recognized that the EEOC’s

critical role in preventing employment discrimination ex

‐

tends beyond the private charge filed by an individual. As the

Supreme Court explained in General Telephone

, “When the

EEOC acts, albeit at the behest of and for the benefit of specific

individuals, it acts also to vindicate the public interest in pre

‐ venting employment discrimination.” Id. at 326; see also EEOC

2 Jurisdiction over the EEOC’s petition for enforcement of the sub

‐

poena below is found both in 42 U.S.C. § 2000e

‐ 5(f) and § 2000e

‐ 8(c), which

authorize a district court to adjudicate subpoena enforcement actions filed

by the EEOC, and 28 U.S.C § 1345, which provides district courts with

subject matter jurisdiction over suits filed by the United States or its agen

‐

cies. See EEOC v. Watkins

, 553 F.3d 593, 595 (7th Cir. 2009). Because the

district court’s October 15, 2015, order enforcing the subpoena is a final

order, and Union Pacific filed a timely appeal, we exercise jurisdiction

over this appeal under 28 U.S.C. § 1291.No. 15

‐ 3452 7

v. Harris Chernin, Inc.

, 10 F.3d 1286, 1291 (7th Cir. 1993)

(EEOC’s “interests are broader than those of the individuals

injured by discrimination.”).

Certainly, as Union Pacific stressed in its appeal, “the

EEOC’s investigative authority is tied to charges filed with

the Commission; unlike other federal agencies that possess

plenary authority to demand to see records relevant to mat

‐

ters within their jurisdiction, the EEOC is entitled to access

only to evidence ‘relevant to the charge under investigation.’”

EEOC v. Shell Oil Co.

, 466 U.S. 54, 64 (1984) (citing 42 U.S.C.

§ 2000e

‐ 8(a)); see also United Air Lines

, 287 F.3d at 650 (citing

Shell Oil for proposition that “the authority of the EEOC to

investigate is grounded in the charge of discrimination”). Un

‐

ion Pacific’s appeal is premised on a theory, however, that the

EEOC’s investigatory authority also ends when the charging

individual commences a lawsuit on his or her claim of em

‐ ployment discrimination. As a result, Union Pacific argues

that the district court erred in allowing the EEOC to pursue

an investigation, including its issuance and enforcement of a

subpoena, after issuing Jones and Burks a right

‐ to

‐ sue letter,

and even if the EEOC’s authority extended beyond the issu

‐

ance of the right

‐ to

‐ sue letter, any investigatory authority

surely ended when the district court granted judgment in Un

‐

ion Pacific’s favor on the individuals’ claims themselves.

As mentioned, whether the issuance of a right

‐ to

‐ sue letter

to the charging individual terminates the EEOC’s authority to

investigate is an issue of first impression for this circuit and

has produced a split in the circuits that have considered the

issue. In EEOC v. Hearst

, 103 F.3d 462 (5th Cir. 1997), the Fifth

Circuit held that the EEOC’s authority to investigate a charge

ends when it issues a right

‐ to

‐ sue letter; in contrast, in EEOC8 No. 15

‐ 3452

v. Federal Express Corporation

, 558 F.3d 842 (9th Cir. 2009), the

Ninth Circuit held that the issuance of a right

‐ to

‐ sue letter

does not strip the EEOC of authority to continue to process

the charge, including independent investigation of allega

‐

tions of discrimination on a company

‐ wide basis.

Not surprisingly, Union Pacific primarily relies on the

Fifth Circuit’s decision in support of its appeal. 3 The Hearst

court found relevant that the “‘integrated, multistep enforce

‐

ment procedure’ established by Title VII is divided into four

distinct stages: filing and notice of charge, investigation, con

‐

ference and conciliation, and, finally enforcement.” Hearst

,

103 F.3d at 468 (citing Occidental Life Ins. Co. v. EEOC

, 432 U.S.

355, 359 (1977)). The court further found that these steps must

always proceed as separate stages, rather than overlapping

each other. Id

. While acknowledging the EEOC’s ability to con

‐

tinue an investigatory role by either intervening in an individ

‐

ual’s lawsuit, by pursuing discovery or by filing a Commis

‐

sioner’s charge, 29 C.F.R. § 1601.11, the Fifth Circuit did not

explain why the EEOC’s authority to investigate necessarily

must be limited to the pre

‐ enforcement phase. On the con

‐

trary, if you read the entire Hearst opinion, particularly “Sec

‐

tion A,” which deals with whether the subpoena was un

‐ timely, the Fifth Circuit appeared most concerned about

speeding up the EEOC process as a whole. See Hearst

, 103 F.3d

at 468 (“Notwithstanding that the 180

‐ day period appears to

be an important part of the statutory design, it has been ren

‐

dered practically meaningless.”); see also Federal Express

, 558

3 The amicus brief submitted by the Equal Employment Advisory

Council also relies heavily on the Hearst opinion. While we have reviewed

the submission, the amicus brief does not add materially to the arguments

presented by the appellant.No. 15

‐ 3452 9

F.3d at 853 n.4 (similarly observing that Fifth Circuit appears

primarily motived by speed). Policy concerns about delays in

resolving charges, while worthwhile, would seem an insuffi

‐

cient (if not irrelevant) basis to assess the statutory authority

vested in the EEOC to investigate in parallel or inde

‐ pendently, especially in light of the EEOC’s broad obligation

to the public interest. Cf. Shell Oil

, 466 U.S. at 69 (cautioning

that the EEOC’s ability “to investigate charges of systemic dis

‐

crimination not be impaired”).

Twelve years after the Hearst opinion, the Ninth Circuit in

Federal Express rejected the Fifth Circuit’s concept of distinct,

linear stages of enforcement by the EEOC, holding that “the

beginning of another stage does not necessarily terminate the

preceding stage.” 558 F.3d at 852. Today, we join in that hold

‐ ing, concluding that the text of Title VII, and more recent Su

‐

preme Court and Seventh Circuit opinions, do not support

such a restrictive interpretation of the EEOC’s enforcement

authority.

To begin, Title VII sets forth the requirements and general

process for: (1) the filing of a charge by an aggrieved individ

‐

ual or by an EEOC Commissioner, § 2000e

‐ 5(b), (e); (2) initiat

‐ ing an investigation of the charge by the EEOC, § 2000e

‐ 8(a);

(3) exploring conciliation efforts if appropriate, § 2000e

‐ 5(b);

and (4) engaging in enforcement efforts through its own civil

action or by issuing a right

‐ to

‐ sue letter to the private party,

§§ 2000e

‐ 5(f)(1), 2000e

‐ 5(b). As previously noted, the Supreme

Court explained in Shell Oil that a charge must meet the re

‐ quirements of 42 U.S.C. § 2000e

‐ 5(b) to serve as a “prerequi

‐

site to judicial enforcement of a subpoena issued by the10 No. 15

‐ 3452

EEOC.” Shell Oil

, 466 U.S. at 65. 4

The requirements of the statute itself are minimal: the

charge “shall be in writing, under oath or affirmation and

shall contain such information and be in such form as the

Commission requires.” Id. at 67 (quoting 42 U.S.C. § 2000e

‐ 5(b)). The applicable regulations further provide that a charge

must contain “[a] clear and concise statement of the facts, in

‐ cluding the pertinent dates, constituting the alleged unlawful

employment practices.” Id. (quoting 29 C.F.R. §

1601.12(a)(3)(1983)). As also previously explained, “[w]hether

a specific charge is valid is determined from the face of the

charge, not from extrinsic evidence.” United Airlines

, 287 F.3d

at 650 (internal citation omitted); see also Watkins Motor Lines,

Inc.

, 553 F.3d 593, 597 (7th Cir. 2009) (requiring only the filing

of a valid charge to authorize the EEOC to investigate). Since

there seems no dispute that the charges filed in 2011 met these

basic requirements, there is no reasonable dispute that the

EEOC was expressly authorized to conduct an investigation.

In contrast, once begun, the statute does not expressly (nor

from the court’s perspective, implicitly) limit the EEOC’s in

‐ vestigatory authority to the 180

‐ day window it has to issue a

notice of right

‐ to

‐ sue letter if requested by the charging indi

‐

vidual. Moreover, while a valid charge is a requirement for

4 In EEOC v. Watkins Motor Lines, Inc.

, 553 F.3d 593 (7th Cir. 2009), this

court observed that, although the Supreme Court refers to a “jurisdictional

prerequisite,” the statutory requirement of a valid charge is not that, at

least in the broadest sense, but rather it is a “mandatory case

‐ processing

rule[].” Id. at 595

‐ 96. As such, the lack of a valid charge does not deprive

the court of subject matter jurisdiction over a subpoena enforcement ac

‐

tion, though it would doom any enforcement action. Id.No. 15

‐ 3452 11

beginning an EEOC investigation, nothing in Title VII sup

‐

ports a ruling that the EEOC’s authority is then limited by the

actions of the charging individual.

Between the Fifth Circuit’s decision in Hearst and the

Ninth Circuit’s more recent opinion in Federal Express

, the Su

‐

preme Court also considered whether an arbitration agree

‐

ment with the charging individual would bar the EEOC from

pursuing victim

‐ specific judicial relief on behalf of that em

‐ ployee. See EEOC v. Waffle House, Inc.

, 534 U.S. 279 (2002). In

holding that the charging individual’s agreement to arbitrate

did not bar further action on the part of the EEOC, the Su

‐

preme Court addressed the interplay between an individual

charge and the EEOC’s continuing authority to investigate

and pursue enforcement actions: “The statute clearly makes

the EEOC the master of its case and confers on the agency the

authority to evaluate the strength of the public interest at

stake.” Id. at 291. As such, the Court necessarily rejected the

notion—endorsed by the Fifth Circuit in Hearst and again

proffered by the appellant here—that the EEOC’s role is

“merely derivative” of the charging individual. Id. at 297.

Following Waffle House

, this court similarly held in Watkins

Motor Lines, Inc.

, 553 F.3d 593 (7th Cir. 2009), that the with

‐ drawing of a charge of discrimination by an employee does

not strip the EEOC of its authority to pursue its investigation.

“All Shell Oil requires is a valid charge. Once one has been

filed, the EEOC rather than the employee determines how the

investigation proceeds.” Id. at 596; see also EEOC v. Sidley Aus

‐

tin LLP

, 437 F.3d 695, 696 (7th Cir. 2006) (“The reason there

was no bar [in Waffle House ] was not that the arbitration clause

was unenforceable but that the Commission was not bound

by it because its enforcement authority is not derivative of the12 No. 15

‐ 3452

legal rights of individuals even when it is seeking to make

them whole.” (emphasis added)).

This understanding of the EEOC’s independent authority

is further confirmed by the amendments to Title VII, which

granted the EEOC broader authority to investigate and initi

‐

ate enforcement actions to address employment discrimina

‐

tion, expressly beyond the specific complaints of the private

charging individual. As this court explained in Watkins

, to

limit the EEOC’s investigation to the decisions made by the

charging individuals would needlessly inhibit its ability to

conduct “a pattern

‐ or

‐ practice investigation that might lead

to relief for many persons in addition to [the charging indi

‐ vidual].” 553 F.3d at 597. Accordingly, the EEOC has subse

‐ quently adopted a regulation that expressly contemplates the

continuation of an investigation after the issuance of a notice

of right

‐ to

‐ sue.

Issuance of a notice of right to sue shall termi

‐

nate further proceeding of any charge that is not

a Commissioner charge unless the District Di

‐

rector; Field Director; Area Director; Local Di

‐

rector; Director of the Office of Field Programs

or upon delegation, the Director of Field Man

‐

agement Programs; or the General Counsel, de

‐

termines at that time or at a later time that it

would effectuate the purpose of title VII, the

ADA, or GINA to further process the charge.

29 C.F.R. § 1601.28(a)(3); see also Federal Express

, 558 F.3d at 850

& n.2. 5

5 While Union Pacific challenges whether this regulation is entitled to

Chevron deference based on its contrary construction of Title VII, “[t]heNo. 15

‐ 3452 13

Perhaps Union Pacific’s stronger argument is that the

EEOC has other avenues available to pursue an investigation

once a notice of right

‐ to

‐ sue letter has been issued—namely,

the EEOC could (1) serve a Commissioner’s charge or (2) in

‐

tervene in the charging individual’s lawsuit. 6 However, the

availability of alternate investigatory avenues hardly sup

‐

ports limiting the EEOC’s use of its most effective avenue, es

‐ pecially given that both alternatives could undermine the full

investigatory authority of the EEOC. For example, a Commis

‐

sioner’s charge filed after issuance of a notice of right

‐ to

‐ sue

may be deemed untimely, see Watkins

, 553 F.3d at 598, or lim

‐

itations on discovery may be imposed in the charging indi

‐

vidual’s lawsuit, see Fed. R. Civ. P. 26(b)(1). In light of the ab

‐

sence of any textual support in Title VII for appellant’s posi

‐

tion, the EEOC’s adoption of a regulation that expressly con

‐ templates the continuation of an investigation after the notice

of right

‐ to

‐ sue letter has been issued, and the Supreme

Court’s express guidance that the EEOC is the master of the

charge in order to serve a public interest extending beyond

that of a charging individual, therefore, we hold that the issu

‐

ance of a right

‐ to

‐ sue letter does not bar further investigation

EEOC’s interpretation of its own rules is entitled to deference.” Shell Oil

,

466 U.S. at 74 n.28. Regardless, since the court has already rejected Union

Pacific’s construction, this challenge completely fails to get off the ground.

6 “A Commissioner charge is a discrimination claim issued by an

EEOC Commissioner; there is no private charging party.” EEOC v.

Quad/Graphics, Inc

., 63 F.3d 642, 644 (7th Cir. 1995); see also EEOC v. A.E.

Staley Mfg. Co.

, 711 F.2d 780, 785 (7th Cir. 1983) (explaining that one pur

‐

pose of a Commissioner’s charge is “to initiate an investigation where an

individual is unwilling to file the charge for fear of retaliation by the em

‐ ployer” (internal citation omitted)).14 No. 15

‐ 3452

on the part of the EEOC.

This leaves Union Pacific’s alternative contention, that any

authority the EEOC had to enforce a subpoena after the right

‐

to

‐ sue letter was issued ended when the charging individuals’

lawsuit was dismissed on the merits. While this issue extends

beyond that posed to the Fifth and Ninth Circuits, the

answer—and the reasoning underlying the answer—would

appear the same: the entry of judgment in the charging

individual’s civil action has no more bearing on the EEOC’s

authority to continue its investigation than does its issuance

of a right

‐ to

‐ sue letter to that individual. In its opening brief,

Union Pacific asserts flatly without offering any textual or

legal support that “if a court rules that a charge is invalid, then

an investigation of that charge is over.” Appellant’s Br. 10. To

the contrary, the validity of the charge is judged on the face of

the charge itself. See United Airlines

, 287 F.3d at 650; Watkins

,

553 F.3d at 597. Assuming the charge meets the requirements

of 42 U.S.C. § 2000e

‐ 5(b), and the EEOC has not resolved or

dismissed the charge, see 29 C.F.R. §§ 1601.21, 1601.19, the

language of Title VII grants the EEOC control over its own

investigation and enforcement efforts. Accordingly, the

disposition of a civil action brought by charging individuals

does not necessarily prevent the EEOC from continuing that

investigation. 7 To hold otherwise would not only undercut

the EEOC’s role as the master of its case under Title VII, it

would render the EEOC’s authority as “merely derivative” of

that of the charging individual contrary to the Supreme

Court’s holding in Waffle House. 534 U.S. at 291, 297. The

7 For example, the charge of a larger pattern or practice of discrimina

‐

tion obviously extends beyond the interests of the two charging individu

‐

als.No. 15

‐ 3452 15

policy implications of such a ruling are also disturbing, since

it would give unhealthy leverage to an individual litigant and

an undue incentive to employers to purchase a stipulated

dismissal with prejudice in order to prevent the EEOC from

pursuing a larger public interest where the circumstances

warrant. Even an adjudication on the merits of the

individuals’ charges, as here, would leave the outcome to the

narrower, private interests and resources of those individuals,

rather than to the judgment that the EEOC is required to

exercise in pursuing leads uncovered as part of its own,

independent investigation in the public interest.

Of course, in determining whether to enforce a subpoena,

there is also the requirement of relevance, as discussed imme

‐ diately below. And, although of little solace to Union Pacific

here, the EEOC itself describes the continuation of its own in

‐ vestigation after the issuance of a right

‐ to

‐ sue notice as unu

‐

sual or atypical. Appellee’s Br. 29; see also 29 C.F.R.

§ 1601.28(a)(3) (describing exception to usual proceeding of

terminating investigation upon issuance of notice of right

‐ to

‐

sue). Finally, in determining whether to enforce a subpoena,

a district court could still consider the date of filing of the

charge, the course of the investigation, the timing of the sub

‐

poena, and any civil actions brought by the charging individ

‐

uals in determining whether the subpoena poses an undue

burden. See McLane

, 137 S. Ct. at 1170.16 No. 15

‐ 3452

B. Relevance

Under Title VII, the EEOC is authorized to examine and

copy “any evidence

... relevant to the charge under investiga

‐

tion,” and it may “petition the district courts to enforce the

subpoenas it issues pursuant to this authority.” 42 U.S.C.

§ 2000e

‐ 8(a); EEOC v. Quad/Graphics, Inc.

, 63 F.3d 642, 645 (7th

Cir. 1995) (citing 42 U.S.C. § 2000e

‐ 9)). As the Supreme Court

explained in Shell Oil

, the requirement under § 2000e

‐ 8 that

the EEOC is only entitled to “relevant” evidence is not in

‐

tended to be “especially constraining.” 466 U.S. at 68; see also

United Air Lines

, 287 F.3d at 652 (describing the burden as “not

particularly onerous”). Rather, “courts have generously con

‐

strued the term ‘relevant’ and have afforded the Commission

access to virtually any material that might cast light on the

allegations against the employer.” Shell Oil

, 466 U.S. at 68

‐ 69.

Still, “[t]he requirement of relevance, like the charge require

‐

ment itself, is designed to cabin the EEOC’s authority and pre

‐

vent ‘fishing expeditions.’” United Air Lines

, 287 F.3d at 653.

Here, the EEOC received information from Union Pacific

itself that all other African

‐ American Signal Helpers, not just

the original claimants Burks and Jones, applying for a promo

‐

tion to Assistant Signalman were turned down for a promo

‐

tion. Based on this, the EEOC sought additional information

about the test being administered to become eligible for pro

‐

motion and the successful and unsuccessful applicants, in

‐ cluding computerized personnel information. While Union

Pacific contends that the information sought extends beyond

the allegations in the underlying charges, this argument is

premised on the same overly narrow view of the role of the

EEOC already rejected in this opinion above. Moreover, the

information sought in the subpoena might well “cast light onNo. 15

‐ 3452 17

the allegations against the employer,” thus satisfying the rel

‐

evance requirement, or at least the district court did not abuse

its discretion in so finding. 8 Accordingly, the district court’s

order enforcing the subpoena is AFFIRMED.

8 As the Supreme Court reiterated recently in McLane Co. v. EEOC

, 581

U.S.

____, 137 S. Ct. 1159 (2017), “[i]f the charge is proper and the material

requested is relevant, the district court should enforce the subpoena un

‐

less the employer establishes that the subpoena is ‘too indefinite,’ has been

issued for an ‘illegitimate purpose,’ or is unduly burdensome.” Id. at 1170

(quoting Shell Oil

, 466 U.S. at 72 n.26). While Union Pacific argued to the

district court that the petition should be dismissed because the EEOC un

‐ reasonably delayed in serving its subpoena, Union Pacific did not press

this argument on appeal. Even if it had, the district court did not abuse its

discretion in finding that Union Pacific contributed to the delay by refus

‐ ing to provide information requested in the EEOC’s first and second sub

‐

poena.