Equal Employment Opportunity v. Southern Farm Bureau Casualty 00-31482 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-31482 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant-Appellee. Appeal From the United States District Court for the Eastern District of Louisiana (New Orleans) BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC" or "Commission") believes oral argument is necessary in this case. The EEOC is charged by Congress with the interpretation, administration, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The law of this Circuit is well-established that the EEOC has broad investigatory authority under Title VII to determine whether the law has been violated in the workplace, see, e.g., EEOC v. Hearst Corp., 103 F.3d 462, 469 (5th Cir. 1997) (Congress granted the EEOC broad investigatory authority so that the agency promptly and effectively could determine whether Title VII had been violated, and to assist the agency in its efforts to resolve disputes without formal litigation), and concomitantly, a right of access to all evidence "relevant to the charge under investigation," 42 U.S.C. 2000e-8(a). The issues raised in this appeal concern the district court's departure from established law in refusing to enforce the EEOC's subpoena merely because the subpoena sought data that would prove discrimination related to, but not raised by, the allegations in an individual's race discrimination charge. Specifically, this appeal raises the issue of whether the Commission may investigate a violation that is uncovered during the course of an investigation even if that specific violation was not alleged by the charging party, particularly when the inquiry is motivated by data provided by the employer in response to the Commission's investigation of the race discrimination charge, addresses the same employment practice and positions at issue in the charge under investigation, and is based on evidence suggesting the possibility of systemic discrimination thereby invoking the EEOC's obligation to protect the interests of those beyond the charging party. Additionally, this appeal presents the question of whether the EEOC can subpoena data relevant to this expanded investigation where the employer has been notified that possible gender discrimination in the hiring for certain positions has become the subject of the agency's initial race discrimination investigation and the employer will have a chance to respond to the Commission's findings and to conciliate before any action is brought in court. The Commission believes that oral argument will assist the Court in its consideration of these questions, all of which are critical to the Commission's mission of enforcing workplace nondiscrimination laws. TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT i TABLE OF AUTHORITIES v STATEMENT OF JURISDICTION 1 STATEMENT OF ISSUES 1 STATEMENT OF THE CASE 1 A. Course of Proceedings and Disposition in Court Below 1 B. Statement of Facts 2 C. The District Court's Decision 8 STANDARD OF REVIEW 10 SUMMARY OF THE ARGUMENT 11 ARGUMENT 12 I. THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IS AUTHORIZED TO EXPAND ITS TITLE VII INVESTIGATION TO INCORPORATE POTENTIAL VIOLATIONS THAT EXTEND BEYOND THE ALLEGATIONS OF THE CHARGING PARTY 14 A. Expanded Investigations are Routinely Permitted by the Courts 14 B. The EEOC's Expanded Investigation is Consistent with This Court's Controlling Law 23 C. The District Court's Supporting Reasons for Declining to Enforce the Subpoena are Unpersuasive 26 II. GENDER DATA REGARDING CERTAIN EMPLOYEES OF SOUTHERN FARM IS RELEVANT TO THE FILED RACE DISCRIMINATION CHARGE AND THEREFORE THE EEOC'S SUBPOENA SHOULD HAVE BEEN ENFORCED 31 CONCLUSION 34 CERTIFICATE OF SERVICE REVISED CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES CASES Bradley Lumber Co. v. NLRB, 84 F.2d 97 (5th Cir.), cert. denied, 299 U.S. 559 (1936) 34 Cisko v. Commonwealth Edison Co., 67 Fair Empl. Prac. Cas. 1630 (N.D. Ill. 1995) 32 Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir. 1971) 14, 24 EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981) 30 EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977) 16, 17 EEOC v. Brookhaven Bank & Trust Co., 614 F.2d 1022 (5th Cir. 1980) 17, 19, 26, 27, 30 EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205 (6th Cir. 1979) 15, 24 EEOC v. Chesapeake & Ohio Ry., 577 F.2d 229 (4th Cir. 1978) 17, 18 EEOC v. General Elec. Co., 532 F.2d 359 (4th Cir. 1976) 14, 16, 18, 19, 20 , 21, 22, 27 EEOC v. Hearst Corp., 553 F.2d 579 (9th Cir. 1977) 17, 27 EEOC v. Hearst Corp., 103 F.2d 462 (5th Cir. 1997) i, 14 EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir.1975) 15, 16, 27, 30 EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975) 25 EEOC v. Maryland Cup Corp., 785 F.2d 471 (4th Cir. 1986) 32 EEOC v. Occidental Life Ins. Co., 535 F.2d 533 (9th Cir. 1976), aff'd on other grounds, 432 U.S. 355 (1977) 30 EEOC v. Packard Elec. Div., 569 F.2d 315 (5th Cir. 1978) 11, 13 EEOC v. Recruit USA, Inc., 939 F.2d 746 (9th Cir. 1991) 24 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) 8, 12, 13, 14, 25 EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir. 1987) 33 EEOC v. University of New Mexico, 504 F.2d 1296 (10th Cir. 1974) 23 FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir.), cert. denied, 431 U.S. 974 (1977) 34 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) 15 In re EEOC, 709 F.2d 392 (5th Cir. 1983) 10, 27 New Orleans Public Service, Inc. v. Brown, 507 F.2d 160 (5th Cir. 1975) 14 New Orleans Steamship Ass'n v. EEOC, 680 F.2d 23 (5th Cir. 1982) 13, 33 Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) 14, 28, 29 Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389 (5th Cir. 2000) 28, 29 University of Pa. v. EEOC, 493 U.S. 182 (1990) 13, 29 Veazie v. Southern Greyhound Lines, 374 F.Supp. 811 (E.D. La. 1974) 24 STATUTES, LEGISLATIVE HISTORY, REGULATIONS AND RULES 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 29 U.S.C. § 161 12 42 U.S.C. § 2000e et seq. i 42 U.S.C.§ 2000e-5(b) 12, 14, 26 42 U.S.C. § 2000e-5(f)(1) 30 42 U.S.C. 2000e-8(a) i, 12 42 U.S.C. § 2000e-8(c) 1 42 U.S.C. §2000e-9 12 29 C.F.R. § 1601.11(a) 26 Fed. R. App. P. 4(a)(1) 2 STATEMENT OF JURISDICTION This is an appeal from a final order of the district court denying enforcement of the EEOC's subpoena. The district court had jurisdiction of this matter pursuant to 42 U.S.C. § 2000e-8(c) and 28 U.S.C. § 1331. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF ISSUES 1. Whether the EEOC is empowered under Title VII to expand a pending investigation of a race discrimination charge to include possible violations based on gender where the challenged employment practice appears to discriminate against both African Americans and women. 2. Whether the EEOC, in its investigation to determine whether the company's employment practice discriminates against women, is entitled to the information about the gender and office location of certain employees of the defendant. STATEMENT OF THE CASE A. Course of Proceedings and Dispositions in Court Below The EEOC sought enforcement of its subpoena requesting certain documents from Southern Farm Bureau Casualty Insurance Company ("Southern Farm") in the district court. R.31.<1> On October 23, 2000, the district court denied the Commission's petition and refused to order Southern Farm to comply with the subpoena. R.E.5.<2> The EEOC filed a timely notice of appeal from the district court's October order. R.E.3; Fed. R. App. 4(a)(1). B. Statement of Facts In July 1998, L.C. Thomas, an African American male, filed an administrative charge with the Louisiana Commission on Human Rights and the EEOC, alleging that, in October 1997 and May 1998, Southern Farm refused to hire Thomas as a claims representative or insurance agent because of his race. R.E.6. The charge also alleged that Southern Farm "engages in a continuing pattern and practice or policy of discrimination against African Americans with respect to hiring for insurance agent and claims representative positions" in violation of Title VII. R.E.18. The EEOC notified Southern Farm about Thomas's charge. R.E.6. In response to the notice of the discrimination charge, Southern Farm stated that it did not hire Thomas because it had tentatively hired someone else to fill a vacant claims adjuster position and because Thomas was "overqualified" since he had a law degree and the position only required a college degree and no prior experience. R.E.21. Specifically, Southern Farm stated that, with respect to the 1997 position Thomas sought, Personnel Director Steve Boeta, a white male, placed a newspaper ad for its claims adjuster vacancy and received 76 resumes. R.E.22. Boeta interviewed only two white males for the position, Jason Chachere and Chris Ashy. Id. On October 23, 1997, District Claims Manager Philip Duncan, a white male, interviewed Chachere and offered him the job pending approval of the State Claims Manager Bob Warner, another white male. Id. at 22-23. Subsequent vacancies in 1998 were filled by candidates who either submitted resumes because of newspaper ads or employee recommendations. R.E. 22-24. All of the selectees were white males. They included David Scheufens hired February 9, 1998; Cody Vidrine hired March 9, 1998; Martin Crawford hired April 14, 1998; Richard Babin hired May 7, 1998; and Michael Spears hired May 25, 1998. Id. Based on this charge and response, the EEOC conducted an extensive investigation into Thomas's allegations of individual and class discrimination based on race. R.E.6. The Commission solicited and obtained voluminous amounts of information about Southern's Farm's practice of hiring by word-of-mouth to fill the Claims Adjuster and Claims Representative positions, including a list of the individuals hired for these positions, their race, and date of hire. Overall, this information was restricted to the relevant period of September 1997 to December 1998. However, at the Commission's request, R.E.25, Southern Farm also provided the EEOC with a list of all professional positions at Southern Farm which provided the employee's name, hire date, position and race. R.E. 28-31. This list was not temporally restricted. Id. From this list, the EEOC discerned from the names of the hirees that Southern Farm may have discriminated against women as well as African Americans in its hiring for claims adjuster and claims representative positions. R.E.45. Specifically, the data showed that from 1982 to 1999, Southern Farm hired the following people: 1982 Joey Brock - white male Michael Holbron - Pacific Islander male 1985 Richard Hagey - white male 1986 Danny Donald - white male Charles Jones, III - white male 1987 Bettye Browning - white female Joseph Lemoine - white male 1989 Kristi Oxford - white female 1990 Charles Faulkner- white male 1991 James Murray - white male Susan Vidallier - white female 1992 Amy Martin - white female Lisa Metcalfe - white female 1993 Anthony Brumley - white male Bryann Cain - white; gender uncertain Michael Pate - white male 1994 Douglas DeIaune - white male David Reed - white male 1995 Charles Carson - white male Douglas Patterson - white male Marsha Runnels - white female O'Neal Weber, III - white male 1996 Marc Clause - white male Rhett Guillory - white male Mickey Head - white male Scott Louderback - white male Sharon Whitaker - white female 1997 Roger Coppett - white male Jeremy Duhon - white male Christopher Fontenot - white male Paul Hebert - white male Mark Thomas - white male 1998 Andrew Burkhalter - white male Matthew Cheek - white male Martin Crawford - white male William DeJean - white male Snapper Dore - white; gender uncertain Ryan Hanks - white; gender uncertain Charles Hawkins - white male Michael Spears - white male James Vidrine - white male William Vienne - white male 1999 Cory Daigle - white; gender uncertain Latisha Hamilton - black female Keshai Johnson - black; gender uncertain Nedra Kelly - black; gender uncertain Mark Monette - black male This data revealed that no African Americans were hired as claims adjusters or claims representatives until 1999, after the EEOC commenced its investigation, and that out of 24 hires from October 1995 to December 1998, possibly only 2 women were hired. In short, the data suggested that Southern Farm strongly favored white males when filling these positions, a practice that negatively impacted on both African Americans and women. Hence, to confirm this finding, by letter dated February 1, 2000, the Commission requested, among other things, the "gender and office location of all Claims Representatives/Claims Adjusters hired during the period October 1995 through December 1998" along with other data. R.E.32. Southern Farm provided the data solicited by this letter except for the gender and office locations of the Claims Representatives and Claims Adjusters. The EEOC followed with a letter explaining that it had expanded the scope of its investigation "to include the failure to hire females as Claims Representatives/Claims Adjusters" and urged Southern Farm to produce the requested information. R.E.33. According to the investigator, this would be the final request for information. R.E. 54. By letter dated April 12, 2000, Southern Farm objected again to the solicitation, arguing that the requested data was outside the scope of Thomas's charge and therefore not relevant to the ongoing investigation. R.E.34. In addition, Southern Farm stated that the request for information was overbroad and unduly burdensome since it had already submitted data in response to " numerous" prior requests. Id. On April 26, 2000, the EEOC issued a subpoena to Southern Farm requesting the gender and office location information previously solicited. R.E. 35. Southern Farm filed a petition to revoke the subpoena. R.E. 36-41. On May 30, 2000, the EEOC issued a determination denying the petition. R.E.42-49. Therein, the EEOC explained that,"[a]fter a thorough review and analysis of all information that had been produced by Respondent, including information and documentation listing those who were employed as Claims Representatives/Claims Adjusters dating back to at least October 1995, the Commission determined that the charge warranted expansion and investigation into whether Respondent's word-of-mouth hiring practice to fill Claims Adjusters/Claims Representative positions had discriminated against females, as well as blacks, in violation of Title VII." R.E.45. It, accordingly, "issued a final request for information that addressed Respondent's process and hiring practices dating back to October 1995 and requested the 'gender and office location of all Claims Representatives/Claims Adjusters hired during the period of October 1995 and December 1998.'" Id. (emphasis in original). It then asserted that the subpoenaed information was not outside the scope of the original race discrimination charge because the "information which the Commission seeks in this case is limited and relates to the Commission's expanded investigation into whether Respondent's word-of-mouth hiring practice relative to filling Claims Representatives/Claims Adjusters positions violated Title VII against females and blacks as classes." Id. at 47. The EEOC further opined that "[t]he expanded investigation is justified because it is based on the same 'root source' for the alleged discrimination, i.e. Respondent's hiring practice for certain positions" and is consistent with its mission "to investigate and eliminate employment practices which violate Title VII." Id. at 47-48. Hence, it concluded that the subpoenaed data was relevant to the investigation. Id. at 49. Despite the Commission's explanation, Southern Farm again refused to comply with the subpoena, R.E.50, and the EEOC filed an enforcement proceeding in the district court. R.31. In addition to the rationale it set forth in its Determination, the EEOC added that the information sought is a "reasonable extension and more complete form of what Respondent has already willingly produced, i.e., complete identifying information for potential witnesses and victims of Respondent's challenged hiring practice whose testimony might 'cast light' on the issues of race and gender discrimination." R.31 at 9. Southern Farm objected, arguing that the gender information is not relevant to the underlying charge. C. The District Court's Decision In denying enforcement of the EEOC's subpoena, the district court noted that the EEOC does not have plenary authority to demand information or records. R.E.9. It stated that the EEOC's investigatory authority is limited to evidence concerning any person being investigated that relates to unlawful employment practices and is relevant to the charge under investigation. Id. It further opined that if the EEOC seeks judicial enforcement of its subpoena, the burden is on the EEOC to prove that the information sought is relevant to the charge filed against the employer. Id. at 10. Relying on the Supreme Court's analysis in EEOC v. Shell Oil Co., 466 U.S. 54 (1984), and its view that Congress intended to limit the Commission's investigative authority, the district court concluded that the EEOC failed to meet its burden. In the first instance, the district court observed that "EEOC advances no argument that the gender information is relevant to Thomas's charge of racism." Id. at 14. The court further noted that there was no "other information contained in the documentary evidence submitted by EEOC in support of its application to in any way suggest how the gender information could possibly shed light on the allegations currently pending against Southern." Id. Thus, while the court declined to say "that gender information such as that sought by EEOC in this case would always be irrelevant to a charge of racial discrimination," it nevertheless concluded that "EEOC has failed to meet its burden of establishing the relevancy of the information it seeks to the charges (sic) filed by Thomas." Id. Acknowledging that the EEOC argued that the gender information is relevant to its expanded investigation into gender discrimination, R.E.14, the district court rejected the Commission's contention that it could "expand an investigation beyond the arguable relevance of the pending charge based on information it uncovers during the course of [the investigation of] an existing charge." Id. at 15. In the court's view, the Commission's assertion is contrary to legislative intent to limit the EEOC's investigative authority to the filed charge and would "serve as a veritable key" to "fishing expeditions" regardless of the allegations in the original charge. Id. The court also ruled that two other factors militated against the EEOC's position that it could subpoena information relevant to the expanded investigation: (1) the fact that EEOC could file a Commissioner charge alleging gender discrimination by Southern Farm and (2) that the Fifth Circuit has restricted Title VII complaints to "the scope of the initial charges against the employer - regardless of what the investigation unfolds." Id. at 15-16. Hence, the court opined that "[g]iven that EEOC cannot sue Southern absent a valid charge, and given that Thomas's charge could not serve as a basis for a suit against Southern alleging claims of gender discrimination" because it is questionable whether Thomas would have standing to assert the rights of his female coworkers, EEOC cannot obtain judicial enforcement of its administrative subpoena. Id. at 17 & n.5. STANDARD OF REVIEW In a subpoena enforcement action, the EEOC must show that its investigation has a legitimate purpose, the inquiry is relevant to that purpose, the information is not already within its possession, and it has followed the governing statute's rules to obtain information. In re EEOC, 709 F.2d F.2d 392, 400 (5th Cir. 1983). Here, Southern Farm challenged the Commission's authority to investigate whether Southern Farm's hiring practices discriminate on the basis of gender, arguing that the gender information was not relevant to the underlying race discrimination charge. Because the issue of EEOC's authority to conduct an investigation into allegations of gender discrimination is a question of law and the relevance of the subpoenaed documents is a mixed question of law and fact, this Court's review of the district court's order rejecting the EEOC's arguments may be for legal or clear error. EEOC v. Packard Elec. Div., 569 F.2d 315, 317-18 (5th Cir. 1978). However, since this Court has also "implied that a trial court's decision might be overturned when the court of appeals merely 'disagrees' with the lower court's denial of subpoena enforcement," id. at 318, and its subpoena enforcement cases after Packard lack any statement regarding the standard of review, it is also possible that the "disagreement" standard of review is the governing rule. In any event, whatever the review standard, the district court here misstated and misapplied relevant case law in denying enforcement of the Commission's subpoena and therefore its judgment should be reversed. SUMMARY OF ARGUMENT The district court's order refusing to enforce the EEOC's subpoena is legally infirm. The EEOC has broad investigatory authority under Title VII and it may investigate possible violations of the statute that arise out of its initial investigation without filing a Commissioner charge or awaiting a charge alleging the new violations. In addition, during the course of the investigation, the Commission is entitled to any information that will assist it in determining whether the allegations of the filed charge are true. Hence, there is no merit to the district court's rationale that the Commission lacked the authority to conduct a gender discrimination investigation even if the gender claim was not mentioned in the filed charge and the charging party, a black male, might not be able to sue on behalf of the aggrieved women. Accordingly, this Court should reverse the judgment of the district court. ARGUMENT Congress provided in section 706(b) of Title VII that whenever the EEOC receives a charge of discrimination, it "shall make an investigation thereof." 42 U.S.C.§ 2000e-5(b). To enable the Commission to fulfill this responsibility, Congress provided a right of access to all evidence "relevant to the charge under investigation," 42 U.S.C. 2000e-8(a), and the same subpoena powers afforded to the National Labor Relations Board. 42 U.S.C. §2000e-9 (incorporating 29 U.S.C. § 161). Under these provisions, the EEOC can obtain by subpoena all relevant information that pertains to any matter which is the subject of a lawful investigation of the charge. EEOC v. Shell Oil Co., 466 U.S. 54, 63 (1984) ("[i]n connection with its inquiry [regarding the allegations in the charge], the Commission is entitled to . . . 'any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge'") (emphasis added). The relevancy determination undergirding the Commission's subpoena authority therefore is to be interpreted "expansively." New Orleans Steamship Ass'n v. EEOC, 680 F.2d 23, 26 (5th Cir. 1982). To determine whether an administrative subpoena should be enforced, the Supreme Court has established a three-part test which requires a court to enforce an administrative subpoena if (1) the investigation is within the authority of the agency, (2) the demand is not too indefinite or burdensome, and (3) the information sought is reasonably relevant to the investigation. University of Pa. v. EEOC, 493 U.S. 182, 191 (1990); Shell Oil, 466 U.S. at 72 n.26 . In this case, the district court based its denial of the Commission's application for subpoena enforcement solely on the ground that the information sought was not relevant to the underlying charge and its accompanying investigation. In reaching its conclusion, however, the district court took too narrow a view in determining the scope of the Commission's investigatory authority and in judging the relevance of the gender information. Packard Elec., 569 F.2d at 318 ("a district court may not construe relevance so restrictively as to disable the Commission in carrying out [its statutory investigative duties]"). Accordingly, the district court's decision should be reversed because the action taken by the trial court here "would totally eviscerate the powers of the EEOC to function under its charter from Congress" with respect to conducting a thorough investigation and making an informed determination as to whether there is reasonable cause to believe that Southern Farm has engaged in gender as well as race discrimination. New Orleans Public Service, Inc. v. Brown, 507 F.2d 160, 165 (5th Cir. 1975). I. THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IS AUTHORIZED TO EXPAND ITS TITLE VII INVESTIGATION TO INCORPORATE POTENTIAL VIOLATIONS THAT EXTEND BEYOND THE ALLEGATIONS OF THE CHARGING PARTY A. Expanded Investigations are Routinely Permitted by the Courts Title VII requires that a charge be filed prior to an EEOC investigation, 42 U.S.C. § 2000e-5(b), however, the terms of the charge are not shackles, and thus should not be "strictly interpreted." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970); see also Danner v. Phillips Petroleum Co., 447 F.2d 159, 161-62 (5th Cir. 1971) (EEOC charges "should be liberally construed"). The sole purpose of a charge is to activate the Commission's investigation, Shell Oil, 466 U.S. at 68, and to alert the EEOC "that someone . . . believes an employer has violated [Title VII]." Id. Consequently, a "charge is not to be treated as a common-law pleading that strictly cabins the investigation that results therefrom . . . ." EEOC v. General Elec. Co., 532 F.2d 359, 364 (4th Cir. 1976). Hence, the EEOC's investigative authority is broad. EEOC v. Hearst Corp., 103 F.3d 462, 469 (5th Cir. 1997) (Congress granted the EEOC broad investigatory authority so that the agency promptly and effectively could determine whether Title VII had been violated, and to assist the agency in its efforts to resolve disputes without formal litigation). Under the auspices of this broad investigatory authority, it is well-settled that the EEOC is entitled to take action on any violation that it uncovers in the course of a reasonable investigation of a charge. General Telephone Co. v. EEOC, 446 U.S. 318, 331 (1980) ("[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable"); EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979) (Commission is not prohibited from investigating "a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge"). In other words, the EEOC can use "the filing of a charge simply as a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices," mindful that " this investigation might frequently disclose, as in this instance, illegal practices other than those listed in the charge." EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir.1975). Accordingly, "[i]f upon investigating a particular charge of discrimination . . .the EEOC discovers other discriminatory practices," it "should not be prevented from taking appropriate action on those newly discovered practices," id.<3>, or be required to turn a "blind eye" to evidence that suggests an employer is discriminating in areas or against persons merely because these violations were not specified in the charge that triggered the investigation. General Elec., 532 F.2d at 364-65. This is not to suggest the Commission can conduct unfettered fishing expeditions such as the one condemned in EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977), where the court dismissed the race claim from a lawsuit alleging race and sex discrimination because "there was no common source of discrimination against blacks and women." Id. at 451.<4> To the contrary, the information that triggers the investigation of additional violations must have come to the agency's attention in response to a reasonable inquiry into the charged violation. See, e.g., EEOC v. Brookhaven Bank & Trust Co., 614 F.2d 1022, 1025 (5th Cir. 1980) (holding that an EEOC complaint may incorporate claims different from those contained in the charge, so long as all claims have been the subject of conciliation, and noting that EEOC may investigate the particular charge and any charge which can reasonably be expected to grow out of the original charge of discrimination); EEOC v. Chesapeake & Ohio Ry., 577 F.2d 229, 232 (4th Cir. 1978)(where "the [C]ommission's information about the employment status of women and non-BRAC employees was obtained from its examination of the company's employment records while it was investigating the initial charge," sex discrimination claim was an outgrowth of reasonable investigation of race charge); EEOC v. Hearst Corp., 553 F.2d 579, 580-81 (9th Cir. 1977) (upholding expansion of investigation of charge alleging discrimination against males to include discrimination against females and members of minority groups); General Elec., 532 F.2d at 370 ("when the same material, i.e., the tests used by defendants, give rise to a reasonable cause to believe the defendant thereby is practicing discrimination both racial and sexual, the EEOC need not confine its actions to the racially discriminatory aspects of the testing program but may 'include in its deliberations all facts developed in the course of a reasonable investigation of that charge' and may predicate a reasonable cause determination thereon"). Applying these principles to the instant case, the EEOC's decision to expand its investigation of the race discrimination charge to include gender bias was an appropriate exercise of the Commission's investigative authority. Here, the EEOC's inquiry about possible gender discrimination was relevant to the charge under investigation. It was triggered by the Commission's review of data provided, without objection, by Southern Farm during the Commission's investigation of Thomas's race discrimination charge. Chesapeake & Ohio Ry., 577 F.2d at 232. The possible gender bias arises out of the same root source as the bias alleged in the filed charge because it focuses on the same employment practice, namely Southern Farm's method of hiring. General Elec., 532 F.2d at 370. The construct of the inquiry is related to the filed charge because it involves the same positions of Claims Adjuster and Claims Representative, and encompasses, albeit in broader scope, the same time period alleged by Thomas. The gender investigation can establish the existence of the same motivating bias, namely the company's hiring preference for white males, which worked to the detriment of women as well as African Americans, and thus would have an impact on the veracity of Thomas's allegation that he was the victim of race discrimination in employment. Lastly, having arisen during the course of the investigation, the potential gender claim will become the subject of conciliation. Brookhaven, 614 F.2d at 1025. Given these facts, the investigation of potential gender discrimination indisputably was a natural outgrowth of and sufficiently related to the Commission's investigation of Thomas's charge to validate the Commission's request for gender data. Although no Fifth Circuit case addressing the precise issue on appeal has been uncovered, EEOC investigatory conduct similar to that in the case at bar was considered appropriate by the Fourth Circuit in EEOC v. General Electric. In General Electric, two charges alleging race discrimination by General Electric ("GE") were filed with the EEOC. The first charge complained of racial discrimination in promotion and job transfers; the second charge alleged racial discrimination in hiring. The EEOC investigated these charges and issued a reasonable cause determination on the promotion and job transfer charge, and found no cause on the hiring charge. In addition, the Commission found that, based on a review of the entire investigative file, there was reasonable cause to believe that GE had engaged in sex discrimination in employment because, as a part of its hiring procedures, the company used two different sets of tests for male and female applicants and weighted them differently in making selections which resulted in an underrepresentation of women. 532 F.2d at 362. After the cause findings were made, EEOC provided GE with a copy of its determinations and attempted to conciliate. GE agreed to conciliate the race claims, but refused to address the gender claim, arguing that it was unrelated to and beyond the allegations of the original charges. Conciliation failed and the EEOC filed a lawsuit alleging race and gender discrimination. GE moved for summary judgment on the sex discrimination claim, arguing that no charge alleging gender bias had been filed against it. The district court granted GE's motion on the ground that the Commission lacked standing to maintain the action. Id. at 362-63. It reasoned that "the right to include an additional claim of discrimination uncovered in the investigation in the civil suit is limited to the claims 'which might have been raised by the charging party.'" Id. at 363. In addition, the district court ruled that any additional type of discrimination uncovered in the initial investigation which the charging party lacked standing to assert "can only be the subject of a civil suit after the filing of a new and separate Commissioner's charge, or presumably a charge by some 'aggrieved person' who could be prejudiced by the discrimination." Id. at 364. On appeal, the Fourth Circuit reversed, holding that the "EEOC has the right during the investigation to compel the production of any material or evidence that has any relevancy to any claim made in the charge [and if it] uncovers . . . facts which support a charge of another discrimination than that in the filed charge, it is neither obliged to cast a blind eye over such discrimination nor to sever those facts and the discrimination shown from the investigation in process and file a Commissioner's charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation." 532 F.2d at 364-65. It explained that "[s]o long as the new discrimination arises out of the reasonable investigation of the charge filed, it can be subject of a 'reasonable cause' determination, to be followed by an offer by the Commission of conciliation, and, if conciliation fails, by a civil suit, without filing a new charge on such claim of discrimination." Id. at 366. Essentially, the court made clear that "the original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in a reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed by the Act." Id. Under General Electric, the Commission's expanded investigation is clearly permissible under Title VII. Indeed, in addition to uncovering possible sex discrimination while investigating the race charge and obtaining evidence of possible gender discrimination produced in connection with the filed charge, a stronger basis exists for validating the Commission's investigative actions than that presented in General Electric because the potential race and gender discrimination at issue arose from a root source, namely word-of-mouth recruitment, that affected both women and African Americans. In General Electric, in contrast, there was no nexus between the race and gender claims, other than the fact that the gender violations were discerned from data provided during the investigation of the race charges, since the testing policy affected only female applicants as a class in hiring, the Commission made no finding that the testing policy affected African American applicants, and on the hiring charge, it determined that there was no reasonable cause to believe that the company had engaged in employment discrimination against the charging party because he is African American. 532 F.2d at 362 & n.1a. Moreover, the Commission in the case at bar provided Southern Farm with notice of its intent to expand its investigation to include possible gender discrimination during the investigation, while in General Electric, the employer was not informed of the Commission's interest in possible violations based on sex until it issued its reasonable cause determination. Given these circumstances, the Commission's investigative conduct could not be viewed as a "fishing expedition,"<5> as the district court stated, R.E.15, unreasonable, or prejudicial to Southern Farm, but rather a legitimate attempt to further investigate a strong possibility of sex discrimination and determine whether reasonable cause exists to believe that race and gender discrimination was occurring. Accordingly, the instant case overwhelmingly provides a logical and stronger basis for this Court to conclude that the expanded investigation was an outgrowth of a reasonable investigation and therefore within the Commission's authority to pursue. B. The EEOC's Expanded Investigation is Consistent with This Court's Controlling Law Even in the absence of case law in this Circuit that directly addresses the issues on appeal, permitting the EEOC to expand its investigation to include discrimination against a protected class other than the charging party's class finds support in analogous Circuit law. This Court, as well as other federal courts, has routinely approved expansion of an individual claim of race discrimination in hiring or firing to a claim that there is a pattern of discrimination in a number of employment decisions, such as job classification and promotions. See Danner, 447 F.2d at 162 (EEOC's inquiry into seniority rights is reasonably related to plaintiff's charge that she was discharged because of sex discrimination); Veazie v. Southern Greyhound Lines, 374 F.Supp. 811, 815 (E.D. La. 1974) (EEOC investigation of employer's hiring, promotional, and transfer policies towards black employees, as well as racially segregated dressing facilities, was reasonably relevant to plaintiff's claim that he was terminated for race discrimination). See also EEOC v. Recruit USA, Inc., 939 F.2d 746, 757 (9th Cir. 1991) (holding "that the EEOC must be permitted to investigate the full picture of Recruit's and Interplace's recruitment and internal hiring practices" and declining "the companies' invitation to straitjacket the EEOC into an artificially narrow survey of Recruit's and Interplace's employment records"); Cambridge Tile, 590 F.2d at 206 ("'[t]he existence of patterns of racial discrimination in job classifications or hiring situations other than those of the complainants may well justify an inference that the practices complained of here were motivated by racial factors'") (internal citation omitted). Given these rulings, it would be illogical to prevent the EEOC from conducting a full investigation of violations discovered during the course of a reasonable investigation of a filed charge merely because the charged method of discrimination affects a different protected class particularly when the dominant purpose of a Commission investigation is "to root out discrimination in employment." Shell Oil, 466 U.S. at 77. Although less common than investigations which include other employment practices affecting the same protected class, the expansion in this case from a claim of race discrimination in hiring of African Americans to hiring discrimination against women was manifestly reasonable because the challenged employment practice revealed a preference for hiring white males which resulted in an underrepresentation of African Americans and women in certain professional positions and thus suggested the possibility of both race and gender discrimination in employment. To prevent the Commission from developing this line of inquiry would impair its ability to investigate systemic discrimination in Southern Farm's hiring practices, Shell Oil, 466 U.S. at 69 ("it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired"), and preclude it from vindicating the interests of those beyond the charging party. EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975) (EEOC's investigative power is consistent with its obligation "to vindicate the public interest, which is broader than the interest of the charging parties"). Moreover, permitting the EEOC to expand its investigation of the race charge to include possible gender discrimination will not flout this Court's legal standards because if a lawsuit is filed on the gender claim that claim first will have been the subject of a reasonable cause determination and conciliation providing the employer with sufficient notice and opportunity to refute or resolve before any civil action is filed. Brookhaven Bank, 614 F.2d at 1025. Therefore, the inquiry concerning possible sex discrimination is sufficiently related to the charge under investigation to permit further inquiry and data production even though the violation was not mentioned in the original charge, and hence was well within the Commission's investigative authority. B. The District Court's Supporting Reasons for Declining to Enforce the Subpoena are Unpersuasive The district court partially justified its erroneous conclusion that the underlying race discrimination charge could not serve as a basis for an investigation of possible sex discrimination is because it believed that the fact that EEOC can file a Commissioner charge in order to investigate gender discrimination by Southern Farm militates against its expansion of an ongoing investigation. R.E.16. The court's rationale lacks merit. First, nothing in Title VII or its regulations mandate that a Commissioner charge be filed when new violations that were not mentioned in the underlying charge are revealed during an investigation. See 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.11(a). Second, requiring the EEOC to resort to filing a Commissioner charge or to wait until it receives a gender discrimination charge against Southern Farms before pursuing this line of investigation would not only be a disservice to public policy that clearly favors the eradication of unlawful discrimination and speedy resolution of such violations, In Re EEOC, 709 F.2d at 398 ("the very backbone of an administrative agency's effectiveness in carrying out [its] congressionally mandated duties ... is the rapid exercise of the power to investigate"), but also stultify investigations and significantly increase the time and expense of a separate probe. General Elec., 532 F.2d at 365 ("[t]o require a new charge based on [discovered] facts [not alleged in underlying charge] and to begin again the administrative process thereon, would result in an inexcusable waste of valuable administrative resources and an intolerable delay in the enforcement of rights"). Finally, barring the EEOC from expanding its investigation to include Title VII violations stemming from the same unlawful employment practice raised in the filed charge,"rather than [allowing it] to include the new charge in its 'reasonable cause' determination, its conciliation proceedings and in its eventual suit, would be to champion form over substance at least where . . . the defendant [here received] adequate notice of the new charge during the administrative proceedings." Hearst Corp., 553 F.2d at 580-81; cf. Brookhaven Bank, 614 F.2d at 1025 ("to limit the EEOC to the precise charge filed would serve no purpose except to add greater delay and expense to the enforcement proceedings"); Huttig, 511 F.2d at 455 (holding that if EEOC discovers new violations while investigating a particular charge, it should not be prevented from taking appropriate action on those new violations). Therefore, this Court should hold that the EEOC does not have to file a Commissioner charge to investigate violations that were not alleged in the filed charge where the violations arise from the same root source and are uncovered during the course of a reasonable investigation of that charge. In addition, this Court should reverse the judgment denying enforcement of the Commission's subpoena because the district court's reasoning that the Commission cannot expand its investigation and subpoena data concerning gender discrimination because "a Title VII complaint filed against an employer . . . is itself constrained by the scope of the initial charges against the employer - regardless of what the investigation unfolds," is specious. R.E.16. To begin with, the district court misstated the rule articulated by the cases it cited. This Court did not limit Title VII complaints to the scope of the charge; rather it held that "[t]he scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000)<6>; Sanchez, 431 F.2d at 466 (same). In fact, this Court made clear in Sanchez that "the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation." Sanchez, 431 F.2d at 466. Thus, under a proper reading of the rule, the liberal standard limiting new allegations in the judicial complaint to the scope of the EEOC investigation does not constrain the EEOC's authority to obtain gender information in this case; rather it enhances the Commission's authority because here the EEOC actually discovered the gender discrimination in the course of investigating Thomas's charge, thereby making the relationship between the investigation and a potential lawsuit clear and nonspeculative. Further, since the new claim arose during the investigative stage, Southern Farm will have the opportunity to settle with the EEOC and all aggrieved parties before any court action is initiated. Thus, Southern Farm cannot claim prejudice, and as "'an alleged perpetrator of discrimination'" should not "'be allowed to pick and choose the evidence which may be necessary for an agency investigation.'" University of Pa., 493 U.S. at 193 (internal citation omitted). Finally, contrary to the district court's observation, R.E.17 n.5, whether or not Thomas has standing to sue on behalf of women affected by Southern Farm's hiring practices is irrelevant to the EEOC's ability to pursue this inquiry during the administrative investigation. Above all, the purpose of the Commission's investigation is to determine whether a violation of Title VII has even occurred and thus, an investigation does not always result in a lawsuit. See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 601 n.18 (1981) ("[w]hen the [EEOC] issues its decision on whether there is probable cause to believe the charge is true, . . . [a] positive finding may . . . be a spur to settlement; a negative finding may deter the employee from filing a frivolous lawsuit"). Further, even if Thomas could not file a suit asserting the gender claim, the EEOC has standing to sue to obtain relief for the aggrieved women as well as Thomas and to raise both the race and gender claims. 42 U.S.C. § 2000e-5(f)(1); EEOC v. Occidental Life Ins. Co., 535 F.2d 533, 542 (9th Cir. 1976) ("enforcement by the EEOC of the objectives of Title VII should not be frustrated because a private charging party may not have had "standing" to make a particular claim"), aff'd on other grounds, 432 U.S. 355 (1977); cf. Brookhaven Bank, 614 F.2d at 1024 (EEOC can sue an employer for unlawful employment practices that surfaced during investigation even after it concludes that no reasonable cause existed to believe filed charge was true); Huttig, 511 F.2d at 455 (EEOC can bring suit on discriminatory practices discovered during investigation of original charge even if charging party settles his grievance with employer). Hence, the court's reliance on whether or not Thomas had standing to sue to deny enforcement of the Commission's subpoena, among other things, was legal error. II. GENDER DATA REGARDING CERTAIN EMPLOYEES OF SOUTHERN FARM IS RELEVANT TO THE FILED RACE DISCRIMINATION CHARGE AND THEREFORE THE EEOC'S SUBPOENA SHOULD HAVE BEEN ENFORCED In that the Commission clearly had the authority to pursue its expanded investigation, the Commission's subpoena should have been enforced because the request for gender data as it relates to Southern Farm's hiring of claims adjusters and claims representatives during the period of 1995 to 1998 is relevant to Thomas's charge, a point we did not concede in the district court despite its characterization to the contrary. See R.E.14. The subpoenaed data would not only assist the Commission in making a cause determination on whether Southern Farm discriminates against females, but it would aid the agency in assessing the veracity of the race discrimination charge. Thomas's charge alleged individual and class discrimination against African Americans in hiring for the positions of Claims Adjuster and other insurance-related positions. Central to his charge is the claim that Southern Farm engages in discriminatory hiring practices with respect to professional positions and that this discrimination occurred during the period of September 1997 to December 1998. R.E.19. Information suggesting that Southern Farm did not hire women for the professional positions of Claims Adjuster or Claims Representative from October 1995 to December 1998, although broader than the relevant period associated with Thomas's charge, would, at a minimum, "cast light" on Thomas's allegation that Southern Farm discriminates in hiring and does so as to these particular jobs, for which he specifically applied. It would also make plausible Thomas's allegation that race may be a prohibited factor on which Southern Farm bases its employment decision, particularly where the hiring decisions favored white males. Moreover, evidence of hiring discrimination against women during the same period Thomas sought employment and involving the same positions denied Thomas is relevant because it could enable the Commission to determine whether Southern Farm has continuously engaged in discrimination in favor of white males and establish whether Southern Farm's conduct constitutes a pattern and practice of discrimination against African American applicants as well as women. EEOC v. Maryland Cup Corp., 785 F.2d 471, 476 (4th Cir. 1986) (holding that although "information on the race and sex of employees during the years 1976 through 1978 is 'of limited relevance' because the charge was filed in 1979, such evidence is relevant and material to the question of whether the company engaged in a pattern of discrimination"); Cisko v. Commonwealth Edison Co., 67 Fair Empl. Prac. Cas. 1630, 1630 (N.D. Ill. 1995) (personnel information relating to the composition of its employees, including date of hire or termination, reason for termination, salary level, and division or location where employee worked is a common instrument for establishing patterns of discrimination). Finally, information regarding Southern Farm's treatment of female applicants is relevant to the Thomas charge because it would provide critical comparative data needed to establish whether Southern Farm's reason for failing to hire Thomas or any other African Americans is pretextual. Thus, in that this Court has ruled that the relevancy determination undergirding the Commission's subpoena authority should be interpreted "expansively," New Orleans Steamship, 680 F.2d at 26, the demand for gender information was relevant, definite, and related to the expanded and original investigation of Thomas's charge, and thus within the Commission's authority to compel.<7> See EEOC v. Tempel Steel Co., 814 F.2d 482, 485 n.9 (7th Cir. 1987) (information in administrative subpoena requiring employer to compile information about its workforce and seeking the gender and national origin of applicants and newly hired employees was not irrelevant even though charge under investigation alleged only race discrimination). This Court should therefore hold that the EEOC is plainly entitled to the subpoenaed information and order Southern Farm to produce the data. CONCLUSION The EEOC has the authority to investigate whether Southern Farms discriminated against females as well as African Americans in hiring because the charged employment practice appears to have a disparate impact on women as well as African Americans. Accordingly, the subpoena seeking the gender and office locations of persons hired for certain positions in a specific time period is relevant to the filed charge under investigation. Therefore, the EEOC urges this Court to reverse the district court's decision and remand with instructions that the subpoena duces tecum be enforced. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER, Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 (o); (202) 663-7090 (fax) CERTIFICATE OF SERVICE This is to certify that on February 20, 2000, two copies of the foregoing brief and one copy of the record excerpts were mailed first class, postage prepaid, to the following counsel of record: M. Nan Alessandra, Esq. David M. Korn, Esq. PHELPS DUNBAR, LLP 365 Canal Street, Suite 2000 New Orleans, Louisiana 70130-6534 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4731 February 20, 2000 CERTIFICATE OF SERVICE This is to certify that on February 20, 2000, one copy of the record excerpts was mailed first class, postage prepaid, to the following counsel of record: M. Nan Alessandra, Esq. David M. Korn, Esq. PHELPS DUNBAR, LLP 365 Canal Street, Suite 2000 New Orleans, Louisiana 70130-6534 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4731 February 20, 2000 1 "R." refers to record entries on the district court's docket sheet and the number corresponds to the handwritten numbers on the right side of the docket. 2 "R.E." refers to the Commission's Record Excerpts and the number corresponds to the bate-stamped page number (e.g., 0001) therein. 3 Although the Huttig Court held that the Commission would be barred by res judicata from bringing a lawsuit alleging race and gender discrimination that was predicated on a race discrimination charge filed by an individual whose private suit was dismissed by the court, the Court recognized that when the Commission discovers violations during the course of its investigation that go beyond the allegations of the underlying charge, it is authorized to take appropriate action, in this case filing a lawsuit, on those new charges since the "filing of a charge with the EEOC is simply the first step in pinpointing and then correcting employment discrimination." Huttig, 511 F.2d at 455. Applying that principle here, it seems logical to conclude that, if the EEOC can sue on claims uncovered during a reasonable investigation, certainly appropriate action would include investigating new violations disclosed during the investigation of the underlying charge and obtaining data relevant to that expanded investigation. 4 The facts of Bailey are distinguishable from the instant case in several ways. First, the EEOC received two charges from a white female clerical alleging gender discrimination and later, race discrimination based on her association with black female coworkers. The Commission investigated, found no cause to believe gender discrimination occurred, determined that the company engaged in racial and religious discrimination, and ultimately filed a lawsuit asserting discrimination based on race and religion. The district court rejected the religion claim largely because the allegations of religious discrimination did not involve practices that affected the charging party. 563 F.2d at 447. Further, had the charging party not amended her charge to allege race discrimination by association, the district court would have dismissed that claim because it was not a natural outgrowth of the sex discrimination investigation since the EEOC did not receive evidence about promotion and hiring practices suggesting the possibility of race discrimination from the employer during the course of its investigation of a sex discrimination charge, but rather through a different channel. Id. at 450. Moreover, the court rejected the agency's view that the race discrimination was related to the gender allegations in the underlying charges since the evidence presented in support of the race claim did not involve the charging party and her association with black females; rather it concerned "exhibits showing the racial composition of appellee's past and present work force and the experience of five black men in the blue collar Parts and Service Departments." Id. In the instant case, in contrast, the Commission actually uncovered the gender discrimination during its investigation of the race charge based on information provided by the employer and the charging party was affected by the hiring practice at issue since it allegedly discriminated against both women and African Americans. 5 Even if the Commission's expanded investigation were considered a "fishing expedition," at least one court has recognized that "today that which [it had] previously considered to be administrative `fishing expeditions' are often permitted; and that administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose." EEOC v. University of New Mexico, 504 F.2d 1296, 1303 (10th Cir. 1974) (upholding district court's enforcement of EEOC subpoena investigation of alleged Title VII violations). 6 In Thomas, this Court ruled that the district court erred in permitting the plaintiff to amend her pretrial order to include the allegation that her employer discriminated against her on the basis of race when it denied her state-owned housing. It stated that, based on the chronology of events and the facts in the case, plaintiff's later asserted race claim was not encompassed by her gender claim because it was not supported by the exhibits or testimony in the record. 220 F.3d at 395. In contrast, the chronology of events and exhibits in the instant case do support a finding that the race claim encompasses the gender claim because, unlike in Thomas, the Commission actually discovered the gender claim in the course of the investigation of the race claim and thus, the gender claim reasonably grew out of the charge under investigation. 7 Although the district court did not address this issue in its decision, Southern Farm argued below that the Commission's subpoena should not be enforced because it is duplicative and unduly burdensome. It stated that it has "already furnished the EEOC with the requested information on race time and time again," R.E.56, and that the Commission was inappropriately attempting to "begin a new investigation without first concluding Mr. Thomas' Charge" after two years of investigation. Id. at 57. Southern Farm also argued that "information regarding the gender and hire dates of all employees within the enumerated categories has already been furnished to the EEOC." Id. None of these arguments support a finding of undue burden. The subpoena specifically seeks gender information, not data on race, therefore it is not duplicative. R.E.35. Further, because the gender information is pertinent to Thomas's charge, it is reasonable that the Commission has not issued a determination on that charge before securing it. Additionally, Southern Farm has not already provided the EEOC with the information requested in the subpoena. The gender information it supplied was in response to an EEOC letter seeking a list of all professional positions and the persons in those positions with identification by name, race, and hire date. R.E.25. In response, Southern Farm provided a list of all professionals with the requested identifying information, R.E.28-31, and identified in its cover letter four underwriter positions that had been excluded from a previous submission with accompanying data about their race, date of hire, and, although not requested, gender. R.E.27. That gender information is not responsive to the challenged subpoena which requested the gender and office locations of Claims Adjusters and Claims Representatives, not underwriters, for the period October 1995 to December 1998, not September 1997 to August 1998. Thus, the requested gender information is not duplicative of previously submitted information. Finally, compliance with the subpoena would not impose an undue burden on Southern Farm because the EEOC's investigator has vowed that this is the final request for information and Southern Farm only needs to provide information for 25 persons. R.E.54. Thus, even if submission of this data were considered a "burden," it would be insufficient to bar enforcement of a subpoena. See FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir.) (en banc) ("[s]ome burden on subpoenaed parties is to be expected and is necessary in furtherance of the agency's legitimate inquiry and the public interest"), cert. denied, 431 U.S. 974 (1977); Bradley Lumber Co. v. NLRB, 84 F.2d 97, 100 (5th Cir.) (an investigation may "cause some inconvenience" but this is "part of the social burden of living under government"), cert. denied, 299 U.S. 559 (1936).