EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner - Appellant,
TRICORE REFERENCE LABORATORIES, Respondent - Appellee. EQUAL EMPLOYMENT ADVISORY COUNCIL, Amicus Curiae.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO (D.C. No. 1:15-MC-00046-WJ)
D. Horowitz, Attorney (P. David Lopez, General Counsel,
Jennifer S. Goldstein, Associate General Counsel, and Margo
Pave, Assistant General Counsel, with him on the briefs),
Equal Employment Opportunity Commission, Washington, DC,
appearing for Appellant.
Geoffrey D. Rieder (Sarah K. Downey and Lexi W. Jones, with
him on the brief), Foster, Rieder & Jackson, P.C.,
Albuquerque, New Mexico, appearing for Appellee.
Vann and Michael P. Bracken, NT Lakis, LLP, Washington, DC,
filed a brief on behalf of amicus curiae Equal Employment
Advisory Council in support of Appellee.
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
MATHESON, Circuit Judge.
appeal asks whether a district court abused its discretion in
declining to enforce an administrative subpoena. The Equal
Employment Opportunity Commission ("EEOC") issued a
subpoena to TriCore Reference Laboratories
("TriCore") seeking information relating to an
individual's charge of disability and pregnancy
discrimination. After TriCore refused to comply, the EEOC
asked the New Mexico federal district court to enforce the
subpoena. The court denied the request, and the EEOC now
appeals. Although we disagree with some of the district
court's analysis, we cannot say it abused its discretion.
Exercising jurisdiction under 28 U.S.C. § 1291, we
summarize the relevant statutes and then present the factual
and procedural background for this appeal.
Title VII and the ADA
VII of the Civil Rights Act of 1964, as amended by the
Pregnancy Discrimination Act, prohibits employers from
discriminating based on sex, including pregnancy. 42 U.S.C.
§§ 2000e-2(a)(1), 2000e(k). Employers must treat
pregnant individuals "the same for all
employment-related purposes . . . as other persons not so
affected but similar in their ability or inability to
work." Id. § 2000e(k).
Americans with Disabilities Act of 1990, as amended by the
ADA Amendments Act of 2008, ("ADA") prohibits
employers from discriminating against employees on the basis
of disability and requires employers to make "reasonable
accommodations" to "qualified individual[s], "
unless the accommodations impose an undue hardship on the
employer. Id. §§ 12112(a), (b)(5)(A). A
"qualified individual" under the ADA is someone
who, "with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires." Id.
§ 12111(8). A charge alleging discrimination may be
filed either by the "person claiming to be aggrieved, or
by a member of the [EEOC]." Id. §
The EEOC's Investigative Power
EEOC is empowered to investigate charges of discrimination
and enforce both Title VII and the ADA. Id.
§§ 2000e-5(a)-(b), 12117(a); EEOC v. Waffle
House, Inc., 534 U.S. 279, 285 (2002) ("Congress
has directed the EEOC to exercise the same enforcement
powers, remedies, and procedures that are set forth in Title
VII . . . when it is enforcing the ADA's prohibitions . .
investigating charges of discrimination, the EEOC may obtain
evidence that "relates to unlawful employment practices
covered by [Title VII] and is relevant to the charge under
investigation." 42 U.S.C. § 2000e-8(a). The EEOC
also has authority to "investigate and act on a charge
of a pattern or practice of discrimination."
Id. § 2000e-6(e).
employer refuses to comply with the EEOC's request for
information, the EEOC may issue a subpoena compelling
production. Id. § 2000e-9 (incorporating the
provisions of 29 U.S.C. § 161, which provides the power
to issue subpoenas to parties under investigation). If the
employer does not respond to the subpoena, the EEOC may apply
to a federal district court for an order compelling the
employer to provide the subpoenaed information. 29 U.S.C.
Ms. Guadiana's Requests for Accommodation and Her
is a medical reference laboratory with multiple locations
throughout New Mexico. In 2011, Kellie Guadiana began working
at TriCore's Albuquerque location as a
phlebotomist-someone who draws blood.
in November 2011 and continuing into 2012, Ms. Guadiana
requested accommodations to her work schedule and
responsibilities due to her rheumatoid arthritis, which she
asserted was exacerbated by her pregnancy. In support of her
requests, Ms. Guadiana submitted notes from her doctors
recommending she sit for at least 75 percent of her shift and
avoid exposure to infectious diseases, a common risk faced by
reviewing her doctors' notes and meeting with her several
times, TriCore's human resources department determined
Ms. Guadiana could not safely perform the essential functions
of her phlebotomist position. TriCore offered Ms. Guadiana
the opportunity to apply to other positions within the
company for which she was qualified and whose essential
functions she could perform. On May 5, 2012, after Ms.
Guadiana did not apply to a new position, TriCore terminated
Charge of Discrimination and the EEOC's
26, 2012, Ms. Guadiana filed a charge of discrimination with
the EEOC alleging that TriCore had discriminated against her
due to her disability (rheumatoid arthritis) and sex
(pregnancy). In the charge, she stated:
I am an individual with a disability of which my employer was
well aware of. Since becoming pregnant I have submitted
requests for accommodation because the pregnancy affects the
disability. Respondent terminated my employment without any
interactive process on May 5, 2012. This is a violation of
the American's [sic] with Disabilities Act and Title VII
of the Civil Rights Act of 1964, as amended to include the
App. at 26.
response, TriCore explained to the EEOC that it had provided
Ms. Guadiana a reasonable accommodation by offering her the
chance to apply for other positions within TriCore. As the
EEOC explained in its application to enforce the subpoena, it
viewed TriCore's response as suggesting a violation of
the ADA because it thought the ADA required TriCore to
reassign Ms. Guadiana to a vacant position rather than merely
provide her an opportunity to apply for another position.
TriCore's statement led the EEOC to suspect that TriCore
had a "companywide policy and/or practice of refusing to
provide reassignment as a reasonable accommodation to
qualified individuals with disabilities." Id.
EEOC informed TriCore in a letter that it was expanding the
scope of its investigation to include the "[f]ailure to
accommodate persons with disabilities and/or failure to
accommodate women with disabilities (due to pregnancy)."
Id. at 37. This additional information, according to
the EEOC, was "like and related to the underlying
charge" (i.e., Ms. Guadiana's original charge of
discrimination) or was "based on evidence uncovered
during the EEOC's investigation of the underlying
charge." Id. The EEOC cited its Compliance
Manual for its authority to expand the
of its expanded investigation, the EEOC sent TriCore another
letter requesting: (1) a complete list of TriCore employees,
along with their personal identifying information, who had
requested an accommodation for disability ("the
disability request"); and (2) a complete list of TriCore
employees who had been pregnant while employed at TriCore,
including the employees' personal identifying information
and whether they sought or were granted any accommodations
("the pregnancy request"). Id. at
The EEOC sought that information for a four-year time frame.
refused to comply, contending the EEOC did not have an
actionable claim of discrimination. On February 23, 2015, the
EEOC submitted another letter seeking the same information
but limited to a three-year time frame. After TriCore
continued to refuse to comply, the EEOC subpoenaed the
information it had sought in its February 23, 2015 letter.
TriCore petitioned the EEOC to revoke the subpoena, arguing
it was unduly burdensome and a "fishing
expedition." Id. at 57, 59. The EEOC denied
TriCore refused to comply with the EEOC's subpoena, the
EEOC submitted an application to the United States District
Court for the District of New Mexico requesting an order to
show cause why the subpoena should not be enforced. TriCore