UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellee,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , McKAY , and LUCERO , Circuit Judges.

________________ _________________ Centura Health (“Centura”) appeal s the district court’s orders enforcing in part an administrative subpoena issued to it by the Equal EmploymentOpportunity Commission (“EEOC”). We affirm e xercising jurisdiction under 2 8 U.S.C. § 1291. 1

* After examining the briefs and appellate record, this panel ha s 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). Th e case is therefore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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 Cl ub, Inc., 985 F.2d 1036, 1038 (1 0th Cir. 1993) (explaining that, for § 1291 purposes, “[a]n order of a d istrict court directing the production of records describ ed in an administrative subpoe na is a final judgment”). FILED United States Court of Appeals Tenth Circuit 

### June 28, 2019
Elisabeth A. Shumaker Clerk of Court2 I When investigating charges of dis crimination, the EEOC may obta in evidence that “relates to unlawful employm ent practices . . . and is rel evant to the charge under investigation.” 42 U.S.C. § 200 0e-8(a). The EEOC is authorize d to obtain such evidence by issuing a subpoena and seeking a court order enforc ing it. § 2000e-9; McLane Co. v. EEOC, 137 S. Ct. 1159, 1164 & n.1 (2017). The EE OC exercised those powers when it sought inf ormation from Centura, a multi-f acility healthcare organization operating primarily i n Colorado. Between February 2011 and October 2014, eleven current or former C entura employees, working acros s eight Colorado locations, filed charges of discr imination with the EEOC. They alleged that Centura violated the Americans with Dis abilities Act (“ADA”) by termina ting their employment or refusing to allow th em to return to work after me dical leave. These employment decisions were allege dly made because of their disab ilities or their requests for accommodations. After receiving the first charge in February 2011, the EEOC req uested information from Centura related to that charge, including the employee’s personnel file and a list of all positions C entura had open at the time h er employment ended. Centura provided the informati on. After three mo re charges had been filed, the EEOC informed Centura that its “investigation may include like and related allegations by other aggrieved individual s involving bases and/ or issues not directly affecting the Charging Party, a s well as those like and related issues not alleged in the charge.” The EEOC asked Centura for information about all employees from3 January 2009 through the date of the request in February 2012 w ho had “requested and/or who were placed on non-[F amily and Medical Leave Act (“F MLA”)]” or FMLA leave, or who had requested an accommodation for their dis ability. Centura responded that the request was overbroad and unduly burdensome and asked the EEOC to narrow the sc ope of its request. A month later, the EEOC sent Cen tura an identical request ident ifying multiple charges as the objects of its i nvestigation. Centura provided some of the requested information but argued some reque sts were irrelevant to the cha rges at issue and contended the cases involved “un ique and isolated circumstances at separate locations” that did not suggest a pattern of discrimination tha t might justify the EEOC’s broad request. As the rema inder of the eleven charges w ere filed, the EEOC sent Centura more reque sts for information. 2 Centura provided information regarding each charging party but refused t o provide further information, arguing the requests sought information irre levant to the indivi dual charges and wer e overly burdensome. The EEOC issued an administrat ive subpoena in December 2014. S ubpoena items 9 and 18(e) requested iden tifying information for each em ployee who worked at the same facilities in Colora do as the eleven charging parti es and who, between August 2009 and 2014, requested an accommodation due to a medic al condition (item 9) or were identified as d isabled (item 18(e)). Item 9 r equested information about the identified employees ’ accommodation requests, the out come of those

2 Those requests are referred to in the notices of the charges t he EEOC sent to Centura, but we are unable to lo cate them in the appendix Centu ra filed.4 requests, and any disciplinary ac tion or separation from employ ment. Item 18(e) requested for each identified em ployee the type of medical cond ition at issue and information about discipline orseparation from employment. Centura petitioned the EEOC to r evoke or modify the subpoena. The EEOC denied the petition and directed Centura to provide the request ed information. Centura refused, so the EEOC f iled a subpoena-enforcement actio n in the district court. Centura challenged only parts of the subpoena, includin g items 9 and 18(e), arguing that compliance would be unduly burdensom e and that the information sought was not relevant to the e leven individual charges within the meaning of § 2000e-8(a). It alleged the inf ormation would only be relevan t to a pattern-or-practice investigation , but the EEOC had not filed a pattern-or-practice charge. The district court issued an or der enforcing the subpoena in pa rt. The court ordered Centura to provide inf ormation 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 informa tion was relevant within the mea ning of § 2000e-8(a), “given the number of ADA char ges the EEOC has rec eived and the widespread geographic distribut ion of those charges.” The cour t noted that relevance is “generously construe d” and that “it is crucial that the Comm ission’s ability to investigate charges of systemic discrimination not be impaired. ” It referred the undue burden question to a magis trate judge, who concluded prod ucing information5 related to items 9 and 18(e) wou ld not be unduly burdensome and declined to take up Centura’s contention that the i nformation was not relevant. The district court overruled Cent ura’s objections to the magist rate judge’s undue burden decision. The court construed Centura’s objection s in part as a motion to reconsider the earlier ruling regarding relevance and determ ined this argument lacked merit. 3 The court therefore ordered Cent ura to comply with the magist rate judge’s order. Centura appealed.
II Centura now challenges only the district court’s relevance det ermination, not its undue burden ruling. We review a district court’s ruling o n the enforceability of an EEOC subpoena for abuse of d iscretion. McLane Co., 137 S. C t. at 1164. “[W]hether a district court em ployed the correct standard of re levance—as opposed to how it applied that standard t o the facts of a given case—is a question of law,” and a district court “necessarily abus e[s] its discretion if it bas ed its ruling on an erroneous view of the law.” Id. at 1168 n.3 (quotation and cit ation omitted). A district court also abuses its d iscretion if it “relies on clea rly erroneous factual

3 Centura pointed out that in an email it received from the EEOC after the district court had ruled on releva nce, the EEOC said it wanted to use the disputed information to “determin[e] Cent ura’s usual policies and proced ures regarding the provision of reasonable accommoda tion.” Centura argued this st atement amounted to a concession that the request was an attempt “to pursue plenary discovery for a pattern and practice investigati on, rather than prosecuting the claims of the individually named Charging Partie s.” The district court rejec ted this argument because “procedures are as releva nt to investigation of an indi vidual charge as they are to a pattern-or-p ractice charge.”6 findings, or where there is no ra tional basis in the evidence f or its ruling.” Trentadue v. FBI, 572 F.3d 794, 806 (10th Cir. 2009) (quotation omitted). The EEOC has the authority to su bpoena 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 lig ht 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 r ender the statutory requirement a nullity.” EEOC v. T riCore Reference Labs., 849 F .3d 929, 937 (10th Cir. 2017) (q uotation omitted). In the district court, the EEO C had the burden of establishing that the subpoenaed information is relevan t to the charges under investi gation. Id. The EEOC had to show: (1) “it has arealistic expectation rather t han an idle hope that the information requested will advance its investigation”; and (2) a “link between [its] investigatory power and th e charges of discrimination.” Id. (quotation omitted). We conclude the district court did not abuse its discretion in determining the EEOC met its burden. The relevan ce 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 i nvestigative stage, the EEOC is trying to determine only whether ‘reasonable cause’ ex ists ‘to believe that the cha rge is true.’” Id. (quoting § 2000e-5(b)). And at t he summary judgment stage of l itigation, for example, evidence that an employe r has a discriminatory policy “is potentially7 relevant” to an indivi dual charge. Jones v. United Parcel Serv ., Inc., 502 F.3d 1176, 1188 (10th Cir. 2007). Because evi dence of a discriminatory po licy is relevant to individual charges under the narr ower relevance standard in a c ivil case, it follows that such evidence is relevant to individual charges under the broader standard of § 2000e-8(a) because it “might c ast light” on the charges underinvestigation. Shell Oil Co., 466 U.S. at 69; see also EEOC v. Associat ed Dry Goods Corp., 449 U.S. 590, 604 (1981) (“Statistics and other information about an emp loyer’s general practices may certainly be releva nt to individual charges of di scrimination[.]”); 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 determinati on of whether there is reasonable cause to believe that the employer has practiced rac ial 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 see ks pattern-or-practice ev idence based only on individual charges. But the limits outlined in those cases do not re quire us to conclude the distr ict court abused its discretion in this case. In Burlington Northern, we determ ined the district court did no t abuse its discretion in denying a petition to enforce an administrative s ubpoena requesting nationwide pattern-or-practice in formation because it was not r elevant to charges of racial discrimination filed by two employees in Colorado. 669 F.3d at 1159.8 Because the information request r eferenced only the two individ ual charges and the EEOC did not refer to any other charging parties or otherwise “ indicate that an additional charge [was] at issu e,” id. at 1157, the EEOC had do ne nothing to “transcend the gap between the p attern and practice investigati on and the private claims,” and the “wide deferenc e” 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 enf orceable if it had been confine d to Colorado positions and offices. Id. In this case, the EEOC’s subpoena was based on eleven charges and requested informati on pertaining only to the locati ons in Colorado where the charging parties worked. A s ubpoena adhering to the geogra phical scope of individual charges supports a d etermination that pattern-or-pra ctice evidence is relevant to the investiga tion of individual charges. In TriCore Reference Laboratorie s, the EEOC soug ht judicial enf orcement of an administrative subpoena it is sued while investigating a sing le charge of discrimination. 849 F.3d at 929 . While “a single discriminato ry act does not, by itself, warrant a broad er pattern-or-practice investigation,” i d. at 939, in this case the EEOC based its request for patte rn-or-practice information on e leven charges. Centura argues that in cases in wh ich there is no pattern-or-pr actice charge, pattern-or-practice ev idence is only releva nt if there is a spe cific and substantial connection between the individual claims and the information re quested, rather than a general possibility of finding patte rns or practices. Centura contends the only common theme tying the requested information to the eleven indi vidual charges is the9 broad fact that all the charges alleged disability discriminati on. Relatedly, Centura distinguishes cases the EEOC re lies on where pattern-or-practic e evidence was held relevant to individual charges, pointing out that each case rel ated to the investigation of a policy more specific than s ome generic form of discriminat ion. 4 Centura’s representations of the disparate factual nature of the eleven c harges is largely accurate, and we agree with the d istinctions it draws regarding the EEOC’s cases. But Centura fails to persuade us that eleven charges of disabil ity discrimination, most alleging a failure to accommodate across a handful of an employ er’s facilities, are insufficient to warrant finding in formation regarding an employ er’s pattern-orpractice relevant. Centura also faults the district court for relying on the state ment in Shell Oil that it is important not to impa ir the EEOC’s ability to invest igate 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 absenc e of a pattern-orpractice charge against Centura , the district court’s reliance on this statement is questionable, but it is not enough to alter our relevance analy sis. See Citicorp Diners Club, 985 F.2d at 1039 (“The EE OC seeks to vindicate the public interest, which is broader than the interest of the charging partie s.” (quotation omitted)); Blue Bell

4 Centura also makes much of th e fact that the EEOC first sought pattern-or-practice ev idence based only on the first charge, an d then, when Centura resisted, laid in wait for severa l years until it had amassed t en more charges to support what Centura views as th e proverbial fishing expedition . But Centura has not pointed to any prohibition on the EEOC’s course, and our task i s to assess the district court’s relevance determinati on based on the eleven charges.10 Boots, Inc., 418 F.2d at 358 (“ The Commission may, in the publi c interest, provide relief which goes beyond the lim ited interests of the charging parties,” and therefore “evidence concerning employment practices other than those spec ifically charged by complainants may properly be cons idered by the Commission in fr aming a remedy.”). Finally, Centura argues that holding pattern-or-practice evide nce can be relevant to individual charges renders superfluous Congress’ 19 72 expansion of the EEOC’s powers to include investig ating pattern-or-practice char ges 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 § 20 00e-6(c), (d); Gen. Tel. Co. v. EEOC, 446 U.S. 318, 328 (198 0) (“The 1972 amendments [to Title VII of the Civil Rights Act of 1964] . . . tra nsferred to the EEOC the Att orney General’s authority to bring pattern-or-pra ctice suits on his own motion. ”). There is no evidence that in transferring th at authority, Congress meant to limit the type of evidence the EEOC can obtain when investigating individual char ges. 5

5 Because we conclude the pattern -or-practice evidence is releva nt to the investigation of individual alle gations against Centura in this case, we need not address the parties’ arguments r egarding whether the informatio n might also allow the EEOC to identify comparators.11 IV The district court’s orders enf orcing the administrative subpoe na are AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge