FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

v.

MCLANE COMPANY, INC.,

Defendant-Appellee.

No. 13-15126

D.C. No.

2:12-cv-02469-

GMS

OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted

March 12, 2015—San Francisco, California

Filed October 27, 2015

Before: J. Clifford Wallace, Milan D. Smith, Jr.,

and Paul J. Watford. Circuit Judges.

Opinion by Judge Watford;

Concurrence by Judge M. Smith
2 EEOC V. MCLANE CO.

SUMMARY*

Subpoena / EEOC

The panel reversed in part and vacated in part the district

court’s order that granted in part and denied in part the Equal

Employment Opportunity Commission’s request for

enforcement of an administrative subpoena issued as part of

an EEOC investigation of a sex discrimination claim.

The panel held that the district court erred in refusing to

compel production of pedigree information (name, social

security number, last known address, and telephone number)

of other applicants and employees who took a qualifying test

because the information was relevant to the EEOC’s

investigation. The panel vacated the district court’s order

denying enforcement of the subpoena’s request for the

reasons for termination of other employees, and remanded so

that the district court could rule on whether requiring the

employer to produce that information would in fact be unduly

burdensome. 

Judge M. Smith concurred in the majority opinion but

wrote separately to discuss the employer’s suggestion that it

was justified in withholding its employees’ Social Security

numbers to protect their privacy interests. Judge M. Smith

noted that the EEOC’s insistence on obtaining Social Security

numbers that could be used to steal an employee’s identity

will endanger the very employees it sought to protect.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
EEOC V. MCLANE CO. 3

COUNSEL

James Tucker (argued), Attorney, P. David Lopez, General

Counsel, Lorraine C. Davis, Acting Associate General

Counsel, Daniel T. Vail, Acting Assistant General Counsel,

U.S. Equal Employment Opportunity Commission,

Washington, D.C., for Plaintiff-Appellant.

Ronald E. Manthey (argued) and Ellen L. Perlioni, Morgan,

Lewis & Bockius LLP, Dallas, Texas; Joshua R. Woodard

and Ashley T. Kasarjian, Snell & Wilmer L.L.P., Phoenix,

Arizona, for Defendant-Appellee.

OPINION

WATFORD, Circuit Judge:

This is a subpoena enforcement action brought by the

Equal EmploymentOpportunityCommission (EEOC) against

McLane Company. The EEOC is investigating a charge of

sex discrimination filed against McLane by one of its former

employees, who was fired when she failed to pass a strength

test after returning from maternity leave. The subpoena seeks

information about the company’s use of the test and the

individuals who have been required to take it. The main issue

before us is whether the district court correctly held that some

of the information sought by the subpoena is not relevant to

the EEOC’s investigation. The court refused to enforce that

portion of the subpoena, and the EEOC has appealed.
4 EEOC V. MCLANE CO.

I

In January 2008, Damiana Ochoa, a former employee of

a McLane subsidiary in Arizona, filed a charge with the

EEOC alleging sex discrimination (based on pregnancy) in

violation of Title VII of the Civil Rights Act of 1964. Ochoa

alleged that when she tried to return to work after taking

maternity leave, McLane informed her that she could not

resume her position as a cigarette selector—a position she

had held for eight years—unless she passed a physical

capability strength test. Ochoa alleged that the company

requires all new employees and all employees returning to

work following a medical leave to take the test. Ochoa took

the test three times but failed to receive a passing score on

each occasion. Based on her failure to pass the test, McLane

terminated her employment.

The EEOC notified McLane of Ochoa’s charge and began

an investigation. During the early stages of the investigation,

McLane disclosed that it uses the strength test at its facilities

nationwide for all positions that are classified as physically

demanding. All new applicants for such positions and

employees returning to such positions from a leave longer

than 30 days are required to pass the test as a condition of

employment.

McLane voluntarily provided general information about

the test and the individuals who had been required to take it

at the Arizona subsidiary where Ochoa worked. That

information included each test taker’s gender, job class,

reason for taking the test, and score received (pass or fail). 

However, McLane refused to disclose what the parties have

referred to as “pedigree information” for each test taker

(name, social security number, last known address, and
EEOC V. MCLANE CO. 5

telephone number). Instead of identifying the test takers by

name and social security number, McLane identified them

only by an “employee ID number” created solely for purposes

of responding to the EEOC’s investigation. McLane also

refused to disclose, for those employees who had taken the

test and were later terminated, when and why their

employment was terminated.

The EEOC eventually expanded the scope of its

investigation to include all McLane facilities nationwide

within the grocery division (the division in which Ochoa

worked), since all of those facilities used the same test for the

same purposes. The EEOC sought the same information

described above for each of the test takers at McLane’s

facilities nationwide. McLane ultimately provided most of

that information, but it again refused to provide either

pedigree information or, for those test takers who were

ultimately terminated, the reasons for termination.

The EEOC then issued an administrative subpoena

demanding production of the withheld information. McLane

petitioned the EEOC to revoke or modify the subpoena, but

the agency denied the petition. Upon McLane’s continued

refusal to provide the disputed information, the EEOC filed

this subpoena enforcement action.

The district court granted in part and denied in part the

EEOC’s request for enforcement. The court required

McLane to disclose the following information: the gender of

each test taker, the date the test was given, the score the test

taker received, the position for which the test was taken, the

passing score for the position in question, and any adverse

employment action imposed within 90 days of an employee’s

taking the test. (McLane had already provided some, but not
6 EEOC V. MCLANE CO.

all, of that information.) The court refused to enforce the

subpoena to the extent it required McLane to divulge two

categories of information: (1) the pedigree information for

each test taker; and (2) for those employees who were

terminated after taking the test, the reasons for termination. 

With respect to the pedigree information, the court concluded

that the EEOC did not need such information to determine

whether McLane had used the test to discriminate on the basis

of sex. Thus, in the court’s view, the information was not

relevant at this stage of the EEOC’s investigation. With

respect to the reasons for termination, the court did not

explain why it refused to require production of that

information. However, in a parallel subpoena enforcement

action the EEOC brought against McLane under the Age

Discrimination in Employment Act (ADEA), the court had

earlier ruled that providing information about whether an

adverse employment action was directly triggered by taking

the test (as the EEOC had requested) would be unduly

burdensome. EEOC v. McLane Co., 2012 WL1132758, at *6

(D. Ariz. Apr. 4, 2012).1

II

Title VII grants the EEOC broad power, within specified

limits, to investigate potential violations of the statute. The

agency’s investigative authority is triggered by the filing of

a charge alleging that an employer has engaged in

1 The EEOC has dismissed the appeal it filed in the ADEA action. And

although Ochoa’s charge alleged discrimination on the basis of disability

under the Americans with Disabilities Act (in addition to alleging

discrimination on the basis of sex), the EEOC is no longer attempting to

enforce the subpoena based on the allegations of disability discrimination. 

We therefore focus our analysis on the Title VII charge alone.
EEOC V. MCLANE CO. 7

employment practices made unlawful by the statute. A

charge may be filed either by an EEOC Commissioner or, as

in this case, by “a person claiming to be aggrieved.” 

42 U.S.C. § 2000e–5(b). The charge is not a formal pleading

governed by the legal standards applicable to the filing of a

complaint. EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). 

Its purpose is simply to “place the EEOC on notice that

someone (either a party claiming to be aggrieved or a

Commissioner) believes that an employer has violated the

title.” Id. A charge is valid if it contains “[a] clear and

concise statement of the facts, including pertinent dates,

constituting the alleged unlawful employment practices,”

although even a written statement “sufficiently precise to

identify the parties, and to describe generally the action or

practices complained of” will do. 29 C.F.R. § 1601.12(a)(3),

(b).

Once the EEOC receives a charge, the statute states that

the agency “shall make an investigation thereof.” 42 U.S.C.

§ 2000e–5(b). The EEOC’s investigative authority is limited,

at least initially, to the unlawful employment practices

specified in the charge. Shell Oil, 466 U.S. at 64. (If new

facts come to light during an investigation, the EEOC may

expand its scope beyond the practices specified in the original

charge. See EEOC v. General Elec. Co., 532 F.2d 359,

364–66 (9th Cir. 1976).) Unlike some federal agencies,

which have “plenary authority to demand to see records

relevant to matters within their jurisdiction,” the EEOC’s

authority under Title VII is more constrained. Shell Oil,

466 U.S. at 64. The agency has the right to obtain evidence

only if it relates to employment practices made unlawful
8 EEOC V. MCLANE CO.

under Title VII and “is relevant to the charge under

investigation.” 42 U.S.C. § 2000e–8(a).2

When an employer refuses to comply with the EEOC’s

requests for information, as occurred here, the EEOC may

issue an administrative subpoena and bring an enforcement

action to compel compliance. 42 U.S.C. § 2000e–9

(incorporating the provisions of 29 U.S.C. § 161). The scope

of judicial review in such actions is narrow. A court

determines only “(1) whether Congress has granted the

authority to investigate; (2) whether procedural requirements

have been followed; and (3) whether the evidence is relevant

and material to the investigation.” EEOC v. Children’s Hosp.

Med. Ctr., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc),

overruled on other grounds as recognized in Prudential Ins.

Co. v. Lai, 42 F.3d 1299, 1303 (9th Cir. 1994). If those

conditions are met, the court must enforce the subpoena

unless the objecting party shows that the subpoena is

overbroad or that compliance would be unduly burdensome. 

Id. We review the district court’s resolution of these issues

de novo. EEOC v. Federal Express Corp., 558 F.3d 842, 846

(9th Cir. 2009).3

2 Section 2000e–8(a) provides: “In connection with any investigation

of a charge filed under section 2000e–5 of this title, the Commission or its

designated representative shall at all reasonable times have access to, for

the purposes of examination, and the right to copy any evidence of any

person being investigated or proceeded against that relates to unlawful

employment practices covered by this subchapter and is relevant to the

charge under investigation.”

3 Why we review questions of relevance and undue burden de novo is

unclear. In a similar but related context—issuance of a protective order

restricting the scope of an administrative subpoena—we have said that

review is for abuse of discretion. See McLaughlin v. Service Employees

Union, AFL-CIO, Local 280, 880 F.2d 170, 174 (9th Cir. 1989). Other
EEOC V. MCLANE CO. 9

III

With that background in mind, we turn to the specifics of

the dispute before us. McLane does not contest that the

EEOC has followed the proper procedural requirements. Nor

can it seriously contest that the subpoena relates to a matter

within the EEOC’s investigative authority, since Ochoa’s

charge alleges discrimination in employment on the basis of

sex. See 42 U.S.C. § 2000e–2(a)(1). (Title VII defines

discrimination on the basis of pregnancy as a form of sex

discrimination. 42 U.S.C. § 2000e(k).) With respect to the

test-taker pedigree information, McLane contests whether

that information is “relevant to the charge under

investigation.” 42 U.S.C. § 2000e–8(a). With respect to the

reasons for termination, McLane contends that producing

such information would be unduly burdensome.

A

We begin with the district court’s refusal to compel

production of the pedigree information, which the court held

is not relevant at this stage of the EEOC’s investigation.

The relevancy limitation imposed by § 2000e–8(a) “is not

especially constraining.” Shell Oil, 466 U.S. at 68. The

question is not whether the evidence sought would tend to

circuits also appear to review issues related to enforcement of

administrative subpoenas for abuse of discretion. See, e.g., EEOC v.

Kronos Inc., 620 F.3d 287, 295 (3d Cir. 2010); EEOC v. United Air Lines,

Inc., 287 F.3d 643, 649, 654 n.6 (7th Cir. 2002). Nonetheless, the de novo

standard of review is now firmly entrenched in our case law. See, e.g.,

United States v. Golden Valley Electric Ass’n, 689 F.3d 1108, 1111 (9th

Cir. 2012); NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005, 1007 (9th

Cir. 1996).
10 EEOC V. MCLANE CO.

prove a charge of unlawful discrimination. At the

investigative stage, the EEOC is trying to determine only

whether “reasonable cause” exists “to believe that the charge

is true.” 42 U.S.C. § 2000e–5(b). So the relevance standard

in this context sweeps more broadly than it would at trial. It

encompasses “virtually any material that might cast light on

the allegations against the employer.” Shell Oil, 466 U.S. at

68–69.

Under this standard, we think the pedigree information is

relevant to the EEOC’s investigation. Ochoa’s charge alleges

that McLane’s use of the strength test discriminates on the

basis of sex. To decide whether there is any truth to that

allegation, the EEOC can of course speak to Ochoa about her

experience with taking the test. But the EEOC also wants to

contact other McLane employees and applicants for

employment who have taken the test to learn more about their

experiences. Speaking with those individuals might cast light

on the allegations against McLane—whether positively or

negatively. To take but one example, the EEOC might learn

through such conversations that other female employees have

been subjected to adverse employment actions after failing

the test when similarly situated male employees have not. Or

it might learn the opposite. Either way, the EEOC will be

better able to assess whether use of the test has resulted in a

“pattern or practice” of disparate treatment. To pursue that

path, however, the EEOC first needs to learn the test takers’

identities and contact information, which is enough to render

the pedigree information relevant to the EEOC’s

investigation. The district court erred by refusing to enforce

the subpoena’s request for production of that information.

McLane raises a series of arguments resisting this

conclusion, but all of them lack merit. First, McLane asserts
EEOC V. MCLANE CO. 11

that Ochoa’s charge alleges only a disparate impact claim,

not a pattern-or-practice disparate treatment claim. That

assertion is wrong. Ochoa’s charge does not allege

discrimination based on any particular legal theory, and it did

not need to do so. See EEOC v. Kronos Inc., 620 F.3d 287,

300 (3d Cir. 2010). A charge is valid if it is sufficiently

precise “to describe generally the action or practices

complained of.” 29 C.F.R. § 1601.12(b). Ochoa’s charge did

that by describing McLane’s practice of precluding

employees who have taken maternity leave from returning to

work unless they pass a strength test, which she could not do

despite three attempts. Ochoa’s charge is framed in terms

general enough to support either a disparate impact or a

disparate treatment theory. See Kronos, 620 F.3d at 300. As

the Third Circuit put it in Kronos, “it is up to the EEOC, not

[Ochoa], to investigate whether and under what legal theories

discrimination might have occurred.” Id.

Second, McLane contends that, given all of the other

information it has produced, the EEOC cannot show that

production of the pedigree information is “necessary” to

complete its investigation. But the governing standard is not

“necessity”; it is relevance. If the EEOC establishes that the

evidence it seeks is relevant to the charge under investigation,

we have no warrant to decide whether the EEOC could

conduct the investigation just as well without it. The EEOC

does not have to show a “particularized necessity of access,

beyond a showing of mere relevance,” to obtain evidence. 

University of Pennsylvania v. EEOC, 493 U.S. 182, 188

(1990). Congress has not left it to employers accused of

discrimination to decide what evidence may be necessary for

the EEOC to complete its investigation. Id. at 193.
12 EEOC V. MCLANE CO.

For similar reasons, the district court erred when it held

that pedigree information is irrelevant “at this stage” of the

investigation. The court reasoned that the evidence McLane

has already produced “will enable the E.E.O.C. to determine

whether the [strength test]systematicallydiscriminates on the

basis of gender.” The court suggested that if the EEOC’s

analysis of that evidence reveals systemic discrimination, the

pedigree information might become relevant and obtaining

that information might then be “necessary.” The EEOC

argues that the district court improperly required it to

substantiate the allegation of systemic discrimination before

it could obtain access to relevant evidence. We doubt that is

what the district court meant, as the Supreme Court has made

plain that courts may not condition enforcement of EEOC

administrative subpoenas on a threshold evidentiary showing

that the allegations under investigation have merit. Shell Oil,

466 U.S. at 71–72 & n.26. Rather, the district court appeared

to conclude that the EEOC did not really need pedigree

information to make a preliminary determination as to

whether use of the strength test has resulted in systemic

discrimination. As we have explained, however, that line of

reasoning is invalid: The EEOC’s need for the evidence—or

lack thereof—simply does not factor into the relevance

determination. Because the pedigree information meets the

broad standard for relevance, the EEOC is entitled to obtain

that information now. (McLane does not contend that

production of the information poses any kind of undue

burden.)

Finally, McLane contends that the pedigree information

is not relevant because Ochoa’s charge alleges only a

“neutrally applied” strength test, which by definition cannot

give rise to disparate treatment, systemic or otherwise. 

McLane’s argument misconstrues the charge. Ochoa alleges
EEOC V. MCLANE CO. 13

that McLane requires all employees returning from medical

leave to take the strength test before they can return to work,

but she does not allege that the test is neutrally applied. (She

alleges just the opposite—that the test was discriminatorily

applied as to her.) Even though McLane requires everyone to

take the test, the test could still be applied in a discriminatory

manner—if, for example, the company were to routinely

excuse the failure of male employees to pass the test but grant

no such exemptions to similarly situated female employees. 

The very purpose of the EEOC’s investigation is to determine

whether the test is being neutrally applied; the EEOC does

not have to take McLane’s word for it on that score. See

Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,

296–99 (4th Cir. 2010).

One additional note is in order regarding the EEOC’s

request for social security numbers. The EEOC seeks that

information so that it can accurately identify individual test

takers in the data sets it has received from McLane. As

explained above, other employees’ experiences might cast

light on the allegations against McLane, whether by

substantiating them or showing them to be unfounded. 

Information that helps the EEOC determine whom to contact

to learn more about McLane’s use of the test is therefore

relevant to the investigation. McLane contends that the

employee ID numbers should suffice for these purposes, but

that is not McLane’s call to make. Furthermore, McLane

does not assert any undue burden associated with producing

this information, nor could it, for the original data sets

contain employee social security numbers. If anything,

McLane has imposed an extra burden on itself by removing

that information from the data sets before producing them to

the EEOC.
14 EEOC V. MCLANE CO.

McLane suggests in a footnote that it is simply attempting

to protect its employees’ privacy interests by withholding

their social security numbers, but the Supreme Court has

already rejected an analogous argument. See University of

Pennsylvania, 493 U.S. at 192–93. Congress has struck the

balance between granting the EEOC access to relevant

evidence and protecting confidentiality interests by imposing

strict limitations on the public disclosure of information

produced during the course of an EEOC investigation. Id.;

see 42 U.S.C. § 2000e–8(e). McLane’s dissatisfaction with

that balance does not entitle it to withhold information

relevant to a charge of discrimination.

B

That leaves the second category of information in dispute:

the reasons for termination. The district court provided no

explanation for refusing to require production of this

information. It is clearly relevant to the EEOC’s

investigation; McLane does not argue otherwise. McLane

nonetheless attempts to defend the district court’s ruling on

the ground that producing this information would pose an

undue burden. McLane prevailed on this argument in the

parallel subpoena enforcement action in the ADEA case, but

the EEOC’s request there was more onerous than the one at

issue here. In the ADEA action, the EEOC sought

information for employees whose dismissal was triggered by

failure to pass the test, but McLane represented that its human

resources database did not capture such “triggering”

information and that it was not otherwise readily available. 

McLane Co., 2012 WL 1132758, at *6. Here, the EEOC is

not seeking such “triggering” information; it requests instead

McLane’s reasons for terminating employees who had

previously taken the test, regardless of any linkage between
EEOC V. MCLANE CO. 15

the two. Because the issue raised in this action is not the

same as the issue raised in the ADEA action, the EEOC is not

precluded from litigating the undue burden issue here. See

Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir.

2000).

We do not think it would be prudent for us to address the

undue burden issue in the first instance. We therefore vacate

the district court’s order denying enforcement of the

subpoena’s request for the reasons for termination, and

remand so that the district court can rule on whether requiring

McLane to produce that information would in fact be unduly

burdensome.

REVERSED in part, VACATED in part, and

REMANDED.

M. SMITH, Circuit Judge, concurring:

I concur in the majority opinion. I write separately to

discuss McLane’s suggestion that it was justified in

withholding its employees’ Social Security Numbers to

protect their privacy interests. The majority opinion rejects

that argument, following University of Pennsylvania v.

EEOC, 493 U.S. 182 (1990). It bears noting, however, that

University of Pennsylvania predates the rash of “data breach”

incidents that plague a world interconnected by computers.

Of particular relevance is the United States government’s

dismal performance in protecting even its own employees’

sensitive data. See, e.g., Office of Personnel Management

Cybersecurity Resource Center, Cybersecurity Incidents,
16 EEOC V. MCLANE CO.

“What Happened,” https://www.opm.gov/cybersecurity/

cybersecurity-incidents/#WhatHappened (detailing the

discovery in June, 2015 of the theft from the Office of

Personnel Management of 21.5 million Social Security

Numbers, an undisclosed number of interview records, 5.6

million fingerprints, and an undisclosed number of usernames

and passwords).

Thus, it may be that the EEOC’s insistence here on

obtaining Social SecurityNumbers and other information that

could be used to steal an employee’s identity will endanger

the very employees it seeks to protect. While we, as a court,

are not in a position in this case to weigh the concerns present

in any particular data gathering and storage protocol, the

EEOC would be well advised to consider these issues in the

collection of data in this case.