NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                   No. 11-2869
                                 _______________

             EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                    Appellant

                                         v.

                                     UPMC
                                _______________

                   On Appeal from the United States District Court
                      For the Western District of Pennsylvania
                       (D.C. Civil Action No. 2-11-mc-00121)
                   District Judge: Honorable Terrence F. McVerry
                                  _______________

                                Argued March 6, 2012
                                 _______________

        Before: SCIRICA, AMBRO, and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed: March 27, 2012)

Deborah A. Kane, Esquire
Equal Employment Opportunity Commission
William S. Moorhead Federal Building
1000 Liberty Avenue, Suite 1112
Pittsburgh, PA 15222

P. David Lopez
   General Counsel
Lorraine C. Davis
   Acting Associate General Counsel
Vincent J. Blackwood
   Assistant General Counsel
Paul D. Ramshaw, Esquire (Argued)
Equal Employment Opportunity Commission
131 M Street, N.W.
Washington, DC 20507

       Counsel for Appellant


John J. Myers, Esquire (Argued)
Rebecca L. Magyar, Esquire
Eckert, Seamans, Cherin & Mellott
600 Grant Street
44th Floor, U.S. Steel Tower
Pittsburgh, PA 15219

       Counsel for Appellee
                                    _______________

                                       OPINION
                                    _______________

AMBRO, Circuit Judge

       The Equal Employment Opportunity Commission (“EEOC”) filed a subpoena

enforcement application in the United States District Court for the Western District of

Pennsylvania, seeking enforcement of an administrative subpoena it issued to the

University of Pittsburgh Medical Center (“UPMC”) pertaining to the EEOC‟s

investigation into a charge of discrimination against The Heritage Shadyside

(“Heritage”), a subsidiary of UPMC.1 The District Court denied the request based on its

holding that the subpoena was a “fishing expedition” for information not relevant to the



1
  Heritage is a wholly owned subsidiary of UPMC Senior Communities, Inc., which is a
wholly owned subsidiary of UPMC. Though the subpoena, charge of discrimination, and
the EEOC refer to Heritage as “UPMC-Heritage Shadyside” or “UPMC Heritage Place,”
its correct name is as stated above.

                                            2
charge of discrimination. Because our precedent regarding the enforcement of a

subpoena issued by the EEOC is stronger than perceived by the Court, we vacate the

judgment and remand.2

                                     I. Background

       Carol J. Gailey began working for Heritage as a certified nursing assistant in April

2007. She suffers from numerous health conditions. Between November 2007 and

January 2008, Heritage granted Gailey a personal leave of absence (“PLOA”) and short-

term disability benefits in accordance with UPMC‟s policies.3 She returned to work in a

light-duty, part-time capacity. In May 2008, she was granted another PLOA for the

purpose of having cancer surgery. This PLOA expired in June 2008, and Gailey failed to

report to work at the end of the PLOA.

       UPMC‟s PLOA policy requires an employee on a PLOA to communicate with her

employer on a regular basis regarding her leave. It also provides that the failure to report

to work on the work day after the leave expires is considered a voluntary resignation.

Because Gailey did not communicate with Heritage or report to work, Heritage treated

her silence as a voluntary resignation and terminated her employment effective the day

after her PLOA expired. Approximately three weeks later, Gailey spoke with Heritage

and was told that her employment had been terminated.

2
 The District Court had jurisdiction under 29 U.S.C. § 161(2) and 28 U.S.C. §§ 1331 and
1345. We have jurisdiction under 28 U.S.C. § 1291.
3
 Gailey had worked for Heritage for seven months at this time. She thus was not eligible
for leave under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., which requires
an employee to have been employed for at least twelve months, or for at least 1,250 hours
of service, by the employer to be eligible for benefits. 29 U.S.C. § 2611(2)(A).

                                             3
       Gailey filed a charge of discrimination with the EEOC.4 She alleged that Heritage

had discriminated against her in violation of the Americans with Disabilities Act of 1990,

as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”), because it discharged her without

warning while she was on leave to undergo major surgery. In response, Heritage filed a

position statement that asserted that Gailey‟s termination was not discriminatory because

it resulted from the neutral application of its policy governing personal leave. It attached

UPMC‟s PLOA policy, Disability Income Protection Policy, and certain other policies.

       A review of these policies prompted the EEOC to send a request for information to

UPMC (not Heritage). It asked UPMC to identify employees at all of its facilities in the

Pittsburgh region who had been terminated under the PLOA and/or disability policies.

UPMC objected to the scope of the request, and did not provide the information. The

EEOC then served a subpoena on UPMC for the information. It read: “For the period

July 1, 2008, to the present time, provide documents identifying all employees who were

terminated after 14 weeks of a medical leave of absence pursuant to [UPMC]‟s [PLOA]

Policy and/or Disability Income Protection Policy, and/or any other applicable policy.”

App. 24. For each employee identified, it sought ten categories of information.




4
  She filed the charge more than 300 days after the date she learned of the alleged
discrimination, which makes the charge untimely. See 42 U.S.C. § 2000e-5(e)(1);
Callowhill v. Allen-Sherman-Hoff Co., 

, 271 (3d Cir. 1987) (“In a state such
as Pennsylvania which has an agency performing functions similar to those of the EEOC,
the time for filing is extended to 300 days . . . .”). Before the District Court, the EEOC
produced an intake questionnaire that Gailey completed within 300 days after she learned
of the alleged discrimination. The issue of whether this questionnaire should be
construed as a timely “charge” is not before us.
                                             4
       After denying UPMC‟s petition to revoke or modify the subpoena, the EEOC filed

the subpoena enforcement application. Before the District Court, it stated that “the

purpose of the investigation is to determine if there are any employees who were denied

medical leave in excess of [UPMC]‟s maximum policy limit where such leave would

have been an accommodation and would not have been an undue hardship as defined by

the ADA.” EEOC v. UPMC, 

, at *4 (W.D. Pa. May 24, 2011). The

EEOC similarly noted that it expanded its investigation of Gailey‟s charge to include all

of UPMC‟s facilities because it “discovered evidence of a policy that on its face appears

to bar an entire class of reasonable accommodations.” 

Court denied the application based on its holding that the information

was not relevant to Gailey‟s charge of discrimination. It commented that “[i]t is readily

apparent that [the] EEOC is interested in pursuing an investigation of UPMC‟s corporate

policies,” which “does not appear to have occurred „during the course of a reasonable

investigation‟” of Gailey‟s charge. 

v. Kronos, Inc., 

, 297

(3d Cir. 2010)). The Court faulted the EEOC for doing “almost nothing to determine the

specific facts of [Gailey‟s] discharge,” and identified several “narrowly-tailored,

potentially-dispositive inquiries” that the EEOC should have made prior to “launching an

inquiry into a tangential alleged systemic violation.” 

determined that the

EEOC had not “satisfactorily explain[ed] how the information requested in the Subpoena




                                             5
would „cast light‟ on Gailey‟s claim.” 

It thus concluded that the

subpoena was a “fishing expedition.”5

                                       II. Discussion

       We review a district court‟s decision regarding a subpoena enforcement

application for an abuse of discretion. 

. A district court abuses

its discretion when it bases its decision on “a clearly erroneous finding of fact, an errant

conclusion of law or an improper application of law to fact.” 

(quoting Chao v.

Cmty. Trust Co., 

, 79 (3d Cir. 2007)).

       The ADA prohibits, among other things, employers from discriminating against a

qualified individual with a disability or a “class of individuals” with disabilities,

including through the application of neutral policies and by failing to provide reasonable

accommodations absent undue hardship. See 42 U.S.C. §§ 12112(a), (b)(5)(A), (b)(6);

US Airways, Inc. v. Barnett, 

, 39798 (2002); Taylor v. Phoenixville Sch.

Dist., 

, 306 (3d Cir. 1999). Employers and employees are to engage in an

“interactive process” to determine an employee‟s needs and whether a reasonable

accommodation exists. Williams v. Phila. Hous. Auth. Police Dep’t, 

, 771

(3d Cir. 2004). Other Courts of Appeals and the EEOC have concluded that a reasonable

accommodation may include offering a qualified individual with a disability a limited


5
  Before the District Court, UPMC advanced four arguments, including that the EEOC
made no showing of how the requested information was relevant to its investigation of
Gailey‟s charge. Because it concluded that the subpoena sought information was not
relevant to Gailey‟s charge, the Court did not address UPMC‟s other arguments, and
neither do we.

                                               6
amount of additional leave, whether paid or unpaid, regardless whether such an

accommodation would violate an otherwise universally applied “neutral” employment

policy. See Graves v. Finch Pruyn & Co., 

, 185 n.5 (2d Cir. 2006) (citing

cases).

          The EEOC‟s power to prevent unlawful employment practices includes the

investigation of charges of discrimination. See 42 U.S.C. §§ 2000e-5, 12117(a). To aid

its investigation, it may issue administrative subpoenas. See 

29 U.S.C.

§ 161(1). Because the EEOC‟s investigative authority is not plenary, it is only entitled to

subpoena evidence “relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a).

          We recently detailed the breadth of the relevancy requirement in Kronos. “Courts

have given broad construction to the term „relevant‟ and have traditionally allowed the

EEOC access to any material that „might cast light on the allegations against the

employer.‟” 

(quoting EEOC v. Shell Oil Co., 

,

6869 (1984)) (emphasis added). For example, the EEOC may subpoena “information

that „may provide a useful context‟ for evaluating employment practices under

investigation, in particular when such information constitutes comparison data.” 

(quoting EEOC v. Univ. of Pittsburgh, 

, 98586 (3d Cir. 1981)).

Indeed, the scope of the subpoenaed information may reflect the extent to which an

employer uses a particular practice, even if the use is nationwide. 

nationwide use of a practice under investigation supports a subpoena for nationwide data

on that practice.”). In addition, “[o]nce the EEOC begins an investigation, it is not



                                              7
required to ignore facts that support additional claims of discrimination if it uncovers

such evidence during the course of a reasonable investigation of the charge.” 

       The relevancy requirement, however, does not confer “unconstrained investigative

authority” on the EEOC, whose burden it is to show relevance. 

65). Rather, the “power of investigation is anchored in the charge of

discrimination . . . . The relevance requirement „is designed to cabin the EEOC‟s

authority and prevent fishing expeditions.‟” 

v. United Air Lines, Inc.,

, 653 (7th Cir. 2002)) (internal citations omitted).

       However, the relevance requirement is not demanding. 

As such, a

district court‟s role in a subpoena enforcement proceeding is limited. It should not assess

the likelihood that the EEOC will be able to prove the discrimination claims it is

pursuing. Shell 

n.26; EEOC v. Franklin & Marshall College, 

, 116 (3d Cir. 1985) (“[T]he Supreme Court [has] . . . rejected the proposition

that a district court must find the charge of discrimination to be well-founded, verifiable,

or based on reasonable suspicion before enforcing an EEOC subpoena.”). Moreover, the

EEOC is not limited to investigating the allegations stated in the charge. “[Its]

investigatory power is broader than the four corners of the charge; it encompasses not

only the factual allegations contained in the charge, but also any information that is

relevant to the charge. . . . [T]he EEOC need not cabin its investigation to a literal

reading of the allegations in the charge.” 

. Likewise, the charge

does not need to contain the legal theory under which the EEOC proceeds. “[T]he

individuals who draft charges are often „not well [versed] in the art of legal description‟
                                              8
and as a result, „the scope of the original charge should be liberally construed.‟ . . . [I]t is

up to the EEOC . . . to investigate whether and under what legal theories discrimination

might have occurred.” 

(quoting Hicks v. ABT Assocs., Inc., 

, 965

(3d Cir. 1978)).

       Though the District Court quoted Kronos for the applicable principles to assess the

EEOC‟s authority to enforce a subpoena, its application of those principles to the

EEOC‟s subpoena against UPMC is more circumscribed than Kronos requires. First, the

Court stated that the “EEOC has failed to satisfactorily explain how the information

requested in the Subpoena would „cast light‟ on Gailey‟s claim.” EEOC v. UPMC, 

, at *4 (W.D. Pa. May 24, 2011) (emphasis added). Under Kronos, the

EEOC is entitled to access any material that might cast light on the 

. Second, the Court did not address how the EEOC failed to meet its burden to

demonstrate relevance. Third, the Court emphasized the dearth of evidence that Gailey

requested an accommodation or would have been able to perform her job duties even

with a reasonable accommodation, and the EEOC‟s seeming lack of other investigation

into Gailey‟s charge. These inquiries deal with the likelihood that the EEOC will be able

to prove the claims it pursues based on Gailey‟s charge. That is not a district court‟s

charge in considering relevance. Shell 

n.26 (“[A]ny effort by the

court to assess the likelihood that the [EEOC] would be able to prove the claims made in

the charge would be reversible error.”). Moreover, though such evidence and

investigation most likely will be crucial to the EEOC‟s case regarding Gailey‟s charge,

the EEOC is not cabined in its investigation by the specific allegations of and evidence

                                               9
supporting a charge if facts that support additional claims of discrimination are uncovered

in the course of a reasonable investigation, provided that its investigation of those

additional claims is relevant to or might cast light on the underlying charge.

       To recap, Gailey‟s charge alleged that she was terminated without warning at the

end of her PLOA based on her disability. Heritage responded that she was discharged in

accordance with UPMC‟s (not merely Heritage‟s) personal leave policy. Extrapolating

from Gailey‟s alleged situation, the EEOC questioned whether UPMC, across all its

facilities, was engaging in a pattern of discrimination by relying on a “neutral”

application of its leave policies to terminate individuals with disabilities without

engaging with them to determine if reasonable accommodations existed, potentially in

violation of the ADA.

       The EEOC argues that evidence of such a pattern of terminating employees may

provide a context for, and thereby might cast light on, Gailey‟s charge. The District

Court may be correct that the EEOC is interested in pursuing an investigation of UPMC‟s

corporate policies. But if the EEOC meets its burden to demonstrate that the information

is relevant to Gailey‟s charge, as it construes her allegations, it is entitled to an order

enforcing the subpoena notwithstanding that the information may allow it to explore

other claims of discrimination against UPMC.

       For these reasons, and though what the District Court did here reflected a practical

concern about possible overreach by the EEOC, we follow our precedent in Kronos.




                                               10
Thus we vacate the District Court‟s judgment and remand the case for proceedings

consistent with this opinion.6




6
  Because we vacate and remand to allow the Court to reconsider the issue of relevance
under the standard set in Kronos, we do not address whether the EEOC has met its
burden regarding the other requirements that we have set forth for administrative
subpoenas. See 

n.4 (“To obtain enforcement of an
administrative subpoena, an agency must demonstrate that: 1) its investigation has a
legitimate purpose, 2) the inquiry is relevant to that purpose, 3) the agency does not
already possess the information requested, 4) the agency has complied with relevant
administrative requirements, and 5) the demand is not „unreasonably broad or
burdensome.‟” (citation omitted)).

                                           11