RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0121p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION , Plaintiff-Appellee ,

v

.

U NITED P ARCEL S ERVICE , I NC ., Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 16-2132

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-mc-50588—Arthur J. Tarnow, District Judge.
Decided and Filed: June 9, 2017
Before: NORRIS, MOORE, a nd STRANCH, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Bonnie Mayfield, DYKEMA GOSSETT, PLLC , Bloomfield Hills, Michigan, Jill M. Wheaton, DYKEMA GOSSETT, PLLC, Ann Arbor , Michigan, for Appellant. Julie L. Gantz, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellee.

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. Th is case concerns the scope of evidence that Plaintiff-Appellee Equal Employment O pportunity Commission (“EEOC”) may obtain in investigating charges of discrimination. Sinisa Matovski, an operations manager for DefendantAppellant United Parcel Service, Inc. (“UPS”) who has a disabi lity, filed an EEOC charge 

### >No. 16-2132 EEOC v. UPS Page 2

claiming that UPS discriminated and retaliated ag ainst him in violation of the Americans with Disabilities Act of 1990 (“ADA”). In partic ular, Matovski claims that UPS published
confidential medical information about him and other employees on its intranet page. The EEOC began an investigation into Matovski’s claims, which resulted in a subpoena that requested information about how UPS stored a nd disclosed employee medi cal information. UPS opposed the subpoena, claiming that the requested information wa s irrelevant to Matovski’s charge. This resulted in the EEOC filing an ap plication to enforce the subpoena. The district court granted the application, and UPS has appealed. Because the information that the EEOC requests “relates to unlawful employment practices” covered by the ADA, 42 U.S.C. § 2000e8(a) (2012), we AFFIRM the judgment of the district court.

I. BACKGROUND
The origin of this appeal is an EEOC charge that Matovs ki filed on March 25, 2014. R. 1 (Mar. 25, 2014 Charge) (Page ID #3 0). The first portion of Matovs ki’s charge claims that UPS violated 42 U.S.C. § 12112(d), which prohibits discrimination on the basis of “medical examinations and inquiries.” 42 U.S.C. § 12112(d )(1). Of particular concern was a September 2013 request for medical leave that UPS published on its Health and Safety intranet site. R. 1 (Mar. 25, 2014 Charge) (Page ID #30). Matovski requested that his information, which included his “condition and symptoms and basis for [h is] leave,” be removed from the site. Id. However, “it remain[ed] accessible to other UPS employees as of” February 16, 2015. Id. ; R. 1 (Feb. 16, 2015 Charge) (Page ID #32). Matovski filed an amended EEOC charge on February 16, 2015, which stated in addition, “I am aware that al l other employees subject to Health and Safety incident action/reports have had their confidential ity breached in the same manner as me.” R. 1 (Feb. 16, 2015 Charge) (Page ID #32).

Matovski also claimed that, since he di sclosed his disability and complained of discrimination, he had “been subjected to heighten ed scrutiny of [his] performance and subjected to negative treatment that [his ] peers who do not have disabilities do not face.” R. 1 (Mar. 25, 2014 Charge) (Page ID #30). Specif ically, he claimed that “[i]n the spring of 2013 and again in October of 2013, [he] complained to Human Re sources about what [he] believed to beNo. 16-2132 EEOC v. UPS Page 3

discriminatory treatment based on [his] disabi lity and need for accommodation, and since [he] raised these concerns, the negative treatment of [him] has accelerated.” Id.
As part of its investigation into these ch arges, the EEOC issued a subpoena for five pieces of evidence, three of which are at issue in this appeal. 1 The first request was for “a copy, in Excel, or Comma Separated Values Format (C SV), of the year end ‘SCS-CSI H & S’ report for the years 2013 to the present.” R. 1 (Subpoe na) (Page ID #35). This report contains information about employee injuries and acciden ts, including “the nature and location of the injury and accident, the injury type, whether the in jury or accident is an OSHA type event, the District of the employee, busin ess unit of the employee, and wh en not identified as a privacy case, information such as the employee’s name , and employee identification number.” R. 1 (UPS’s Pet. at 1–2) (Page ID #41–42). The EEOC estimates that “there could be six, seven hundred people just on . . . one worksheet within this Excel file that contains multiple worksheets.” R. 11 (Mot. Hr’g Tr . at 8) (Page ID #124). The s econd request was for “a copy of the ‘privacy case’ criteria and all documents regarding its implementation and creation.” R. 1 (Subpoena) (Page ID #35). The EEOC explained that it seeks this information “to understand how UPS is determining what is a privacy case. Are they acknowledging th eoretically that some
of this is confidentia l information that shouldn’t be shar ed with all managerial employees throughout the country[?]” R. 11 (Mot. Hr’g Tr. at 16) (Page ID #132). The third request was for “a copy of the ‘RiskConsul’ Orac le Database in Ecel [sic] or CVS [sic] format that replaced the ‘SCS-CSI H & S’ report, from the date of implementation to the present.” R. 1 (Subpoena) (Page ID #35).
UPS petitioned the EEOC to modify the subpoena, arguing that some of the requested information was irrelevant and burdensome, R. 1 (UPS’s Pet. at 4) (P age ID #44), but the EEOC denied UPS’s petition, R. 1 (EEOC’s Determina tion on UPS’s Pet. at 1) (Page ID #56). The
EEOC then filed in the United States District C ourt for the Eastern District of Michigan its application for an order to show cause why an administrative subpoena should not be enforced. R. 1 (Appl.) (Page ID #1–24). After holding a hearing on the EEOC’s app lication, R. 11 (Mot.

1 The EEOC withdrew the fourth and fifth requests afte r “UPS admitted that all managers in the country have access to [the report of its employees’ injuries].” R. 5 (Pl.’s Reply to Resp’t’s Resp. to the Appl. at 4) (Page ID #107).No. 16-2132 EEOC v. UPS Page 4

Hr’g Tr.) (Page ID #117–36); R. 14 (Nov. 3, 2016 Order) (Page ID #148–49), the district court ordered UPS to comply with the first three re quests in the EEOC’s subpoena, R. 7 (July 21, 2016 Order) (Page ID #111–12), “for the reasons that the EEOC has put on the record and in their brief,” R. 11 (Mot. Hr’g Tr. at 19) (Page ID #135). This appeal fo llows. R. 8 (Notice of Appeal) (Page ID #113–14). The district court had jurisdiction pursuant to 29 U.S.C. § 161(2), and we have jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

A. Standard of Review
“A subpoena enforcement proceeding is a summary process designed to decide expeditiously whether a subpoe na should be enforced.” EEOC v. Roadway Express, Inc. ( Roadway Express I ), 750 F.2d 40, 42 (6th Cir. 1984). Ge nerally speaking, the purpose is not to
decide the merits of the underlying claim. Id. We review “a district court’s decision to enforce an EEOC subpoena . . . for abuse of discretion.” McLane Co. v. EEOC , 581 U.S. ——, 137 S. Ct. 1159, 1170 (2017); EEOC v. Roadway Express, Inc. ( Roadway Express II ), 261 F.3d 634, 638 (6th Cir. 2001).

B. Relevance
“Once an adequate charge has been issued, the EEOC has au thority to serve subpoenas to gain ‘access to . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices . . . and is relevant to the charge under investigation.’” Roadway Express II , 261 F.3d at 638 (quoting 42 U.S.C. § 2000e-8(a)). Although “the relevancy standard places some limitation on the scope of th e EEOC’s investigative authority[,] . . . 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.’” Id. at 639 (quoting EEOC v. Shell Oil Co. , 466 U.S. 54, 68–69 (1984)). T hus, § 2000e-8(a)’s “relevancy limitation does not . . . force the EEOC only to re view evidence concerning the specific charge.” Roadway Express I , 750 F.2d at 43; EEOC v. Cambridge Tile Mfg. Co. , 590 F.2d 205, 206 (6th Cir. 1979) (“Notions of relevancy at the investigatory stage are very broad, and so long as the EEOC is not wandering into wholly unrelated ar eas, . . . we hold that the Commission has theNo. 16-2132 EEOC v. UPS Page 5

power to investigate an d thus to subpoena docum ents concerning any employer practice which may shed light on the discrimination charged.”).
As an illustration of this gene rous construction, we have held in the Title VII context that “the EEOC is entitled to . . . evidence [that] fo cuses on the existence of patterns of racial discrimination in job classificati ons or hiring situations other th an those that the EEOC’s charge specifically targeted.” Roadway Express II , 261 F.3d at 639. We see no reason to hold differently with respect to discrimination on th e basis of disability, keeping in mind that “discrimination as referred to in [the ADA] sha ll include medical examinations and inquiries,” 42 U.S.C. § 12112(d)(1). Thus, so long as a charge alleges unlawf ul use of medical examinations and inquiries, evidence of patterns of such unlawful use is “relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a); Roadway Express II , 261 F.3d at 639.
UPS argues that “[t]he EEOC is only entitled to information regarding similarly-situated employees.” Reply Br. at 4. However, under th e standard described a bove, there is no such restriction under § 2000e- 8(a). In fact, in Roadway Express II , we deemed evidence to be relevant despite the fact that it concerned employees who were deci dedly not similarly situated to the employee who was the subject of the EEOC char ge; whereas “the charge only alleged failure to hire women as operators and laborers and th e failure to promote bl acks to sales and upper management positions,” we held that evidence “r egarding the promotion of women to sales and upper level management positions and the hiring of blacks as operators and laborers” was
nevertheless relevant. 261 F.3d at 638. The true te st of relevance is not whether the information is about similarly situated employees, but whether the evidence “provides context for determining whether discrimination has taken place.” Id. at 639.
With these principles in mind, we hold that th e district court did not abuse its discretion in this case. The first and third requests, which were for the databases that stored and allegedly disclosed employee medical informa tion, are directly relevant to Matovski’s charge. Matovski
claims that UPS violated th e ADA’s confidentiality provisi on by publishing his request for medical leave on “on the company’s Health and Safety intranet site.” R. 1 (Mar. 25, 2014 Charge) (Page ID #30) (citing 42 U.S.C. § 12112(d)). He also notes in his amended charge that “all other employees subject to the Health and Safety incident action/ reports have had theirNo. 16-2132 EEOC v. UPS Page 6

confidentiality breached in the same manner as me.” R. 1 (F eb. 16, 2015 Charge) (Page ID #32). Matovski’s charge thus directly implicates the databases that UPS uses to store and potentially disclose employee medical information. The district court did not abuse its discretion in finding such reports relevant to Matovski’s charge.
UPS argues in response that the EEOC’s reque sts are overbroad because the information contained in the SCS-CSI H & S report and Risk Consul Oracle Database contain information about other employees from other regions in the United States and Canada and that Matovski’s information never appeared on the RiskConsul Oracle Database . However, the breach of confidentiality that Matovski describes in his ame nded charge is not limited to himself; he claims that “all other employees subject to Health and Safety incident action/reports have had their confidentiality breached in the same manner as me.” R. 1 (F eb. 16, 2015 Charge) (Page ID #32). Moreover, the EEOC is entitled to evidence that s hows a pattern of discrimination other than the specific instance of discriminati on described in the charge. See Roadway Express II , 261 F.3d at 639. “A company’s business practices are not so co mpartmentalized as the defendant in this case would contend”; UPS is not shie lded from the EEOC’s subpoena pow er merely because it began disclosing employee medical info rmation on a new database. See Cambridge Tile Mfg. Co. , 590 F.2d at 206. Therefore, the district court did not abuse its discretion in finding that reports with information about other employees are relevant to Ma tovski’s charge.
UPS also argues that Matovski’s amended char ge is not valid because it “appears to have been amended for an illegitimate purpose—to obtain documents that the subpoena otherwise could not reach.” Appellant’s Br. at 16. Howeve r, UPS did not raise this argument below. Therefore, it is forfeited. See Lucaj v. FBI , 852 F.3d 541, 547 n.4 (6th Cir. 2017). Nevertheless, we note that even if the amended charge were in valid, databases that unlawfully disclose medical information of other employees would reflect a pa ttern of discrimination that “may well justify an inference that the practices complained of here were motivated by . . . factors [in violation of the ADA].” Roadway Express II , 261 F.3d at 638–39 (quoting Blue Bell Boots, Inc. , 418 F.2d 355, 358 (6th Cir. 1969)). Theref ore, the first and third request s are relevant to either of Matovski’s charges.No. 16-2132 EEOC v. UPS Page 7

The district court also did not abuse its discretion in findi ng that UPS’s “privacy case” criteria were relevant to Matovski’s charge. The explanation that th e EEOC provided, and which the district court adopted, R. 11 (Mot. Hr’g Tr. at 19) (Page ID #135), is that the “privacy case” criteria may reveal an acknowledgment on the part of UPS that some information in the
databases was “confidential information that shoul dn’t be shared with all managerial employees throughout the country.” Id. at 16 (Page ID #132). Showing wh at UPS knew to be confidential
and what it believed not to be confidentia l “provides context for determining whether discrimination has taken place.” Roadway Express II , 261 F.3d at 639. It is not an abuse of
discretion for the district cour t to deem evidence regarding su ch knowledge to be relevant.
UPS argues in response that the EEOC’s reque st is overbroad because it “provides no temporal scope.” Appellant’s Br. at 23–24. Ho wever, the relevance of the “privacy case” criteria is not dependent on when UPS devel oped the criteria. Regardless of when UPS developed the criteria, this piece of evidence may provide insight into how UPS categorizes information as confidential. This is relevant to Matovski’s charge that UPS disclosed
confidential medical information in violation of the ADA. Th erefore, the EEOC shall have
access to it. See 42 U.S.C. § 2000e-8(a).

* * *
Finally, although the bulk of UPS’s argument is focused on the releva nce of the requested information, UPS also argues that the request is “unduly burdensome.” Appellant’s Br. at 11.
It is true that courts “ may not enforce an administrative subpoena unless the request seeks relevant material and is not unduly burdensome.” EEOC v. Ford Motor Credit Co. , 26 F.3d 44, 47 (6th Cir. 1994) (citing Univ. of Pa. v. EEOC , 493 U.S. 182, 191 (1990); Shell Oil Co. , 466 U.S. at 68–69, 72–73). However, UPS has not identified how producing the requested pieces of evidence would be unduly burdensome. In fact, the only evidence in the record on this point suggests that it would not be burdensom e for UPS to comply with the subpoena; when
asked how difficult it would be for UPS to provide the reque sted information, both parties acknowledged that the information could be tr ansmitted electronically. Because UPS has not shown that the subpoena is burdensome in any ma terial way, the district court did not abuse its discretion in ordering UPS to comply with the subpoena.No. 16-2132 EEOC v. UPS Page 8

III. CONCLUSION
In light of the generous constructi on we give to “relevant” evidence, Roadway Express II , 261 F.3d at 638, we hold that the district court di d not abuse its discreti on in directing UPS to comply with the EEOC’s subpoena. Accordingly, we AFFIRM the judgment of the district

court.