No

STATEMENT REGARDING ORAL ARGUMENT

This appeal presents several important questions concerning the subpoena enforcement authority of the Equal Employment Opportunity Commission (“EEOC” or “Commission”) during its investigation of an individual charge with systemic implications. These questions involve the expanded scope of the Commission’s investigation and the relevance of the subpoenaed information regarding a respondent’s employment practices where it has disclosed that to justify the challenged termination it relied on a medical regulation that it applies company-wide to all of its applicants and employees. This appeal also presents a question of whether the compilation and review of personnel and medical records for a select group can be unduly burdensome for a company with billions of dollars in assets. The EEOC believes that oral argument will assist the Court in its consideration of these questions, all of which are critical to the Commission's congressional mandate to investigate charges of discrimination and enforce workplace nondiscrimination laws.

STATEMENT OF JURISDICTION

The EEOC brought this subpoena enforcement action pursuant to sections 706, 709, and 710 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5, 2000e-8, and 2000e-9, as incorporated into the Americans with Disabilities Act (ADA), 42 U.S.C. § 12117, to investigate whether Royal Caribbean Cruise Lines (“Royal Caribbean” or “RCL”) violated the ADA when it terminated charging party Jose Morabito, an assistant waiter, after he was diagnosed with a medical condition. T8-DE 1.[1] The district court’s jurisdiction was based on 28 U.S.C. § 1331. The district court denied the EEOC’s application for enforcement of the subpoena in a final judgment entered on June 7, 2013. T3-DE 50. The EEOC filed a timely appeal on August 5, 2013. T2-DE 52. Jurisdiction in this Court is based upon 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the district court improperly denied the EEOC’s petition for subpoena enforcement as seeking irrelevant and overbroad information because it included requests for data that could uncover other possible violations and potential victims of discrimination on the same basis as that alleged in the filed charge.

2. Whether the district court improperly decided that compliance with the subpoena would be unduly burdensome.

STATEMENT OF THE case

1. Course of Proceedings

The EEOC filed an application for subpoena enforcement following RCL’s refusal to produce documents and information concerning its foreign national applicants or employees who were refused employment because of their medical conditions. T8-DE 1. The magistrate judge issued a report recommending denial of the Commission’s application. T4-DE 34, Magistrate Report and Recommendation (R&R). The district court adopted the magistrate’s report. T3-DE 50. The EEOC filed a timely notice of appeal. T2-DE 52; Fed. R. App. 4(a).

2. Statement of the Facts

Charging Party Jose Morabito, who is an Argentine national, was employed as an assistant waiter on one of RCL’s Royal Caribbean International (RCI) cruise ships, Sovereign of the Seas. T15-DE 1-4, Position Statement at 1. Although Morabito’s ship ports in Miami, most of his shipboard work was performed in international waters. Id. at 2. In August 2009, RCL declined to renew Morabito’s employment contract after he was diagnosed with HIV and Kaposi Sarcoma (AIDS), even though he had been declared fit for duty by his physician. Id. at 3-4; T13-DE 1-2, EEOC Determination at 2. In June 2010, Morabito filed a charge alleging that he was discharged by RCL because of his medical condition in violation of the ADA. T16-DE 1-3, Morabito Charge. RCL denied the allegation, stating that, because its vessels are subject to Bahamian law, it terminated Morabito because he has an infectious disease, which, under Bahamas’ Merchant Shipping Notice 1746, now 1765,[2] means he is permanently unfit for duty. T15-DE 1-4, Position Statement at 3-4; T10-DE 21, RCL Mem. Opposing Subpoena Enforcement at 21 .

a. Royal Caribbean’s structure

Royal Caribbean, a Liberian corporation, is a global cruise vacation company that operates several “brands” of cruise ships, including the Royal Caribbean International (“RCI”) brand.[3] T9-DE 20, RCL Undisputed Facts at 1-2. Since its inception, less than 50 percent of the Royal Caribbean brand ships touch U.S. waters. T5-DE 54, Subpoena Hearing Transcript at 44. Between 2009 and 2011, RCL believes only 25-30% of its ships operated in U.S. waters. Id. at 45. All 22 of its RCI vessels are registered under the laws of the Commonwealth of the Bahamas and fly the Bahamian flag. T9-DE 20 at 2. Consequently, RCL asserts that it is required to follow regulations governing medical and vision standards for shipboard employees issued by the Bahamian Maritime Authority (BMA). Id. at 4. These standards identify certain conditions or impairments that either temporarily or permanently disqualify individuals from duty at sea. Id.

Royal Caribbean asserts that no American corporation owns or controls RCL. T9-DE 20 at 1. However, the company’s corporate headquarters (HQ) are located in Miami, Florida, and most of its “shoreside business functions” are directed from its HQ location, including human resources, operations, finance and accounting, sales and marketing, legal and compliance, safety, security, and public health functions, information technology, and procurement and purchasing. Id. at 2-3.

The company employs approximately 2,000 individuals at its Miami HQ. DE 20-9 at 6-7, ¶8. In addition, RCL employs in excess of 50,000 individuals worldwide, T15-DE 1-4 at 1, of whom approximately 34,000 are in shipboard positions on RCI vessels. T17-DE 20-1, Faso Aff. at 2; T4-DE 34, Magistrate R&R at 13. All of the shipboard positions fall under the authority of either the Marine Operations or Hotel Operations Departments in RCL’s Miami HQ.[4] T9-DE 20 at 3; T17-DE 20-1 at 3. According to RCL, foreign nationals, like Morabito, make up 97% of its shipboard-workforce, and U.S. citizens make up only about 3%. T17-DE 20-1 at 2; T4-DE 34 at 13. RCL asserts that many shipboard employees who are foreign nationals “never set foot in the United States,” and those who must pass through U.S. ports are issued special “transit visas” that permit them to enter the U.S. to join vessels or aircraft but do not authorize them to work in the United States. T9-DE 20 at 2; T17-DE 20-1 at 2.

Recruitment of staff for shipboard jobs is handled as follows: outside of the U.S., RCL typically relies on hiring partners or agents (outside vendors who provide recruiting services), who conduct initial interviews and recommend qualified candidates to its Miami HQ. T17-DE 20-1 at 3-4; T4-DE 34 at 13-14. An RCL Recruiter from Miami then interviews candidates, typically in the candidate’s home country. T17-DE 20-1 at 4. The RCL Recruiter decides whether to make an offer of employment, subject to final approval by the appropriate HQ department in Miami. T9-DE 20 at 3; T17-DE 20-1 at 4. RCL’s Miami staff handles all applicants, including U.S. citizens, who apply for shipboard jobs directly with RCL. T17-DE 20-1 at 4; T4-DE 34 at 15.

After an offer of employment is made, all shipboard applicants are required to undergo a post-offer, pre-employment medical exam to determine their fitness for duty at sea in accordance with the medical standards for seafarers set out in the BMA regulations. T9-DE 20 at 3-4; T17-DE 20-1 at 4; T4-DE 34 at 15 n.9. RCL has stated that the application and medical files on the individuals who were not hired or renewed for employment stay with the hiring partners. T5-DE 54 at 33, 41. Upon successful completion of the medical exam, the candidate is placed into a pool of qualified candidates until he or she can be assigned to a particular ship; at the time the person actually boards the ship, he or she is given an employment contract to sign. T12-DE 1-12 at 23.

Ultimate employment decisions regarding an RCL crewmember’s, or potential crewmember’s, fitness for duty at sea are either made or approved at RCL’s HQ in Miami. T9-DE 20 at 4; T17-DE 20-1 at 4. The personnel files of “[e]mployees who actually make it to the ship, those files are maintained in Miami.” T5-DE 54 at 37. “If they have an injury or illness where they have been referred to Crew Medical, they will also have a medical record [or injury report] on them . . . . And those files are maintained in Miami as well.” Id. Lastly, RCL has an electronic personnel database that can identify which crew members worked on the Royal Caribbean ships that “touch[ed] U.S. waters.” Id. at 44.

b. EEOC’s Subpoena and Information Demands

In its position statement and response to the Commission’s first Request For Information (“RFI”), RCL requested that the Commission dismiss the charge, arguing that the charge was invalid and the EEOC did not have jurisdiction because the ADA does not cover charging party Morabito, a foreign national who was working on a foreign-flagged ship operating predominantly in international waters. T15-DE 1-4 at 1-2. RCL also asserted that Morabito was not “disabled” because he did not suffer a substantially limiting impairment after he underwent successful treatment, and he was not “qualified” under the BMA’s medical standards for shipboard employees. Id. at 3-4. However, the company also provided general background information regarding RCL as well as a copy of the BMA standards.

The Commission’s second RFI sought limited class information regarding shipboard employees who were discharged under the BMA standards between January 1, 2010 and November 22, 2010. RCL refused to provide the information sought based on objections to relevance, over-breadth and burdensomeness, and jurisdiction. DE 20-6.

On April 18, 2011, the Commission issued a subpoena seeking information on shipboard employees who were discharged or whose employment contracts were not renewed, as well as applicants for shipboard jobs who were not hired, for medical reasons from January 1, 2008, to the date of the subpoena.[5] T14-DE 20-11, EEOC Subpoena. The Commission’s subpoena also sought information regarding RCL’s hiring, contract renewal, and firing process; employment criteria related to employees’ and applicants’ health or medical conditions; and the company’s business activities in Florida. Id.

Specifically, the subpoena categories were as follows:

(1) List all employees who were discharged or whose contracts were not renewed within the relevant time period [from Jan. 1, 2008 through present] due to a medical reason, including being declared unfit for duty under Category 4 in Merchant Shipping Notice 1765 (the former MSN 1746) or any other Merchant Shipping Notice.

(2) For each employee listed in response to request number 1, include employee’s name, citizenship, employment contract, position title, reason for and date of discharge, copy of separation notice, and last known contact information for each individual.

(3) For each employee listed in response to request number 1, include their employment application and related correspondence, any interview notes, the identity of the person who hired the employee, how the employee obtained the position (i.e. online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.

(4) List all persons who applied for a position but were not hired within the relevant period due to a medical reason, including being declared unfit for duty under Category 4 in Merchant Shipping Notice 1765 (the former MSN 1746) or any other Merchant Shipping Notice.

(5) For each employee listed in response to request number 4, include their citizenship, employment application and related correspondence, any interview notes, the identity of the person who hired the employee, how the employee learned of the position (i.e. online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decisions.

(6) Describe and identify how employees are hired or considered for renewal of employment contracts, including, but not limited to, the physical location where the employment applications and contract renewals are considered, the identity of the person who considers the applications and contract renewals, and the identity and location of the person who makes the final hiring decisions.

(7) Produce any and all employment criteria or guidelines related to the health or medical condition of the applicant or employee used by Royal Caribbean in making hiring, termination, or retention decisions.

(8) Describe any and all business activities of Royal Caribbean that are conducted at its Miami, Florida business office, the number of employees in that location, and the names of the business departments located there.

T14-DE 20-11 at 4. Although RCL objected to the subpoena and petitioned the Commission to revoke or modify it, the company complied, in part, with the first five subpoena requests and it fully complied with requests Nos. 6, 7, and 8. T12-DE 1-12. Specifically, while its petition to revoke or modify was pending, RCL identified and provided the Commission information regarding U.S. citizens who were not hired, were discharged, or whose contracts were not renewed for medical reasons during the period from August 25, 2009, to the date of the subpoena. RCL identified and provided documentation for a total of nine such U.S. citizens during this period. DE 20-10. RCL stated that it was able to retrieve the subpoenaed information for American shipboard employees because most of them are direct hires and their application and medical files are in the Miami headquarters. T5-DE 54 at 33-34. However, RCL continued to refuse to identify or provide any information for shipboard employees who were foreign nationals.[6]

On November 29, 2011, the Commission issued a determination on RCL’s petition. T13-DE 1-2. The Commission modified the time frame of the subpoena to begin on August 25, 2009. T13-DE 1-2 at 16. However, the Commission denied RCL’s petition in all other respects. Id. RCL notified the EEOC, on December 19, 2011, that it declined to comply with the modified subpoena. DE 1-15; DE 20-15. The Commission then filed an application for subpoena enforcement of Requests 1-5 in district court on April 17, 2012. T8-DE 1.

3. Magistrate's Report and Recommendation

Magistrate Judge McAliley recommended against enforcement of the Commission’s subpoena on relevance and burdensomeness grounds. T4-DE 34 (R & R). After deciding that the EEOC had established a plausible basis for jurisdiction, he noted that the Commission is only entitled to information that is relevant to the filed charge, which stated that Morabito was terminated after he was diagnosed with a medical condition in violation of the ADA. Id. at 5-6. On that basis, the magistrate decided that the Commission’s “sweeping demand” for information about all actual and potential employees worldwide who were denied employment for medical reasons to determine whether there was a pattern or practice of discrimination sought information that is not relevant to the filed charge. Id. at 7-12. The magistrate observed that the information would be relevant to a Commissioner charge “yet to be brought: that RCL engages in a company-wide pattern and practice of discrimination in violation of the ADA.” Id. at 12. Consequently, the magistrate recommended that RCL’s objections to categories 1 through 5 of the subpoena be sustained. Id.

The magistrate also recommended that the disputed portions of the subpoena be considered unduly burdensome. He accepted RCL’s claim that producing personnel records about foreign crew employed or seeking employment on RCL’s foreign-flagged vessels would be unduly burdensome because its personnel records are kept in paper form, and RCL does not have an electronic database. T4-DE 34 at 14. Additionally, the magistrate concluded that compliance would be burdensome because RCL averages 5,500 terminations per year, including employees who quit or were fired for non-medical reasons, and the company estimated it would take two to three persons working full-time for approximately 60 days to review the files and manually compare the names of all employees who were terminated or not renewed with the names of the crew members who had a medical file opened to determine which employees were responsive to the subpoena. Id. Further, the magistrate was persuaded by RCL’s claim that of the 2,445 candidates who were not hired in 2011 alone, it is unable to do an automated search to determine which ones failed to meet the BMA medical standard; that the foreign hiring partners would have to forward their records to Miami for the applicants who were not hired; and that RCL would need to assign 3-4 employees full-time for 60 days to review these records. Id. at 15. Consequently, the magistrate rejected the EEOC’s argument that RCL’s failure to computerize its personnel records and use of 5-7 employees to work for 2 months to comply with the subpoena do not establish burdensomeness. Id. at 16.

4. District Court Decision

The district court adopted the magistrate’s report and recommendation in full and denied enforcement of the EEOC’s subpoena. T3-DE 50. After conducting a de novo review of the issues presented by the objections to the magistrate’s report, the court concluded that the information objected to by RCL was not relevant to the charge. Id. at 1-2. Specifically, the court rejected the EEOC’s argument that an individual charge can support a request for company-wide information to determine whether other potential victims of discrimination exist and decided that the law supported the magistrate’s finding that the broad request was a fishing expedition and more suited to a charge that has not been brought. Id. at 2-4. It also rejected the Commission’s argument that the broad information was relevant to the filed charge. Id. at 4. Lastly, the district court decided that compliance would be unduly burdensome if RCL had to devote 5-7 employees for 60 days to full-time labor to manually process the EEOC’s requested documents. Id. at 5.

STANDARD OF REVIEW

A subpoena enforcement proceeding is “designed to be summary in nature.” EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7^th Cir. 1987). As long as the investigation is within the agency’s authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena. EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 450 (11^th Cir. 1996). Consequently, while the court has an oversight role, it is “sharply limited.” EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir.1991). Further, this Court “’give[s] a certain amount of deference to an agency's reasonable construction of a statute it is charged with administering.’” U.S. v. Florida Azalea Specialists, 19 F.3d 620, 622 (11th Cir. 1994) (quoting Mester Manufacturing Co. v. INS, 879 F.2d 561, 565 (9th Cir.1989)).

Questions of law that do not depend on the district court’s factual findings are reviewed de novo. Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1308 (11th Cir. 2013). In contrast, the district court’s finding that the EEOC’s subpoena is overbroad, or sought information irrelevant to the filed charge is a mixed question of law and fact, and thus is subject to review for legal error or clear error, depending on the circumstances. EEOC v. Packard Elec. Div., 569 F.2d 315, 317-18 (5^th Cir. 1978).[7] A court’s assessment of whether disclosure would be burdensome, however, is reviewed for abuse of discretion. Id at 318. This Court also has the power to narrow the subpoena in question. Federal Election Comm'n v. Florida for Kennedy Committee, 681 F.2d 1281, 1295 n.10 (11th Cir. 1982) (Clark, J., dissenting).

Summary of argument

The district court’s determination that EEOC’s subpoena is not enforceable because it is overbroad and irrelevant to the charge is legally unsound. An individual charge that challenges a termination is sufficient to justify the expansion of the Commission investigation to determine whether other potential victims and potential statutory violations exist. In this case, information concerning potential systemic violations surfaced in the context of the Commission’s investigation of the individual charge and was provided by RCL itself. Hence, the Commission properly exercised its investigatory authority to determine whether the alleged discrimination was systemic or whether other instances of discrimination were corroborative of the charge’s allegations. Such an approach comports with the EEOC’s mission to vindicate the public interest in ferreting out unlawful discrimination in the workplace and falls within the EEOC’s broad investigatory authority.

The district court also improperly determined that compliance with the EEOC subpoena would pose an undue burden. RCL, a global corporation with billions of dollars in assets and over 50,000 employees, has argued that it would be burdensome to have 5-7 of its employees devote two months to collecting applicant and employee data and identifying those with medical conditions who were refused employment by RCL. RCL also argues that compliance would present a hardship because it does not use an electronic database to archive its applicant and employee data and thus its employees would have to conduct a manual search of all of its paper documents. RCL, however, did not present any evidence that production of the subpoenaed data would threaten or disrupt its business operations, the proper legal standard for demonstrating undue burden in the subpoena context. Accordingly, this Court should reverse the judgment of the district court.

ARGUMENT

I. THE DISTRICT COURT IMPROPERLY DENIED ENFORCEMENT OF THE EEOC'S SUBPOENA BECAUSE ITS EXPANDED INVESTIGATION WAS A LAWFUL EXERCISE OF ITS AUTHORITY AND THE MATERIAL SOUGHT WAS RELEVANT.

Under Title VII, as incorporated into the ADA, when a person charges an employer with individual or systemic discrimination, the EEOC must investigate to determine whether there is reasonable cause to believe that the employer engaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 12117 (ADA provision incorporating title VII procedures). In conducting its investigations under Title VII and the ADA, the EEOC has the authority to seek any evidence that “relates to unlawful employment practices . . . and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). To fortify the Commission’s investigative authority, Congress gave the EEOC subpoena power. 42 U.S.C. § 2000e-9. To carry out an investigation, section 709(a) ensures that “the Commission . . . 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.” 42 U.S.C. 2000e-8(a). The Commission accepts “any statement of position or evidence with respect to the allegations of the charge which the person claiming to be aggrieved . . . or the respondent wishes to submit.” 29 C.F.R. § 1601.15(a). If the respondent refuses to comply with the subpoena, the EEOC may seek enforcement in the district court. Id. When it seeks judicial enforcement, the EEOC has a “broad right of access to relevant evidence.” Univ. of Pa. v. EEOC, 493 U.S. 182, 191 (1990).

In this case, Morabito filed a charge alleging that he was discharged by RCL because of his medical condition in violation of the ADA. T16-DE 1-3, Morabito Charge. RCL denied the allegation, stating that, because its vessels are subject to Bahamian law, it terminated Morabito because he has an infectious disease, which, under Bahamas’ Merchant Shipping Notice 1746 means he is permanently unfit for duty. T15-DE 1-4, Position Statement at 3-4; T10-DE 21, RCL Mem. Opposing Subpoena Enforcement at 21.

The pending appeal concerns 5 of the 8 requests listed in the EEOC’s April 2011 subpoena. These requests are:

The district court denied enforcement of the subpoena solely because Morabito’s charge did not allege a company-wide practice and therefore, in the court’s view, the EEOC was merely using the charge as a springboard for a fishing expedition for other potential class members harmed by RCL’s policies. T3-DE 50 at 3-4. The court’s crabbed view of the relevancy standard cannot be squared with the facts in this case or the prevailing legal standards. RCL admitted that it applies the BMA’s medical regulation, known as MSN 1746, to all shipboard post-offer applicants who must take a pre-employment medical exam and all shipboard employees seeking renewal of employment. T9-DE 20 at 3-4. RCL also admitted that it terminated charging party Morabito in accordance with that policy. T15-DE 1-4 at 3. Those admissions justified the Commission’s request for company-wide data as to RCL’s treatment of employees who are foreign nationals with medical conditions on the Bahamian-flagged ships subject to MSN 1746.

Courts routinely hold that “[a]n employer's nationwide use of a practice under investigation supports a subpoena for nationwide data on that practice.” EEOC v. Kronos Inc., 620 F.3d 287, 298 (3d Cir. 2010) (involving EEOC investigation of ADA claim that turned on company-wide use of a test that allegedly facilitated discrimination based on disability). See also EEOC v. United Parcel Serv. Inc., 587 F.3d 136, 139 (2d Cir. 2009) (per curiam) (enforcing EEOC subpoena seeking information on how employer applied appearance guidelines nationwide in EEOC investigation of two complaints of religious discrimination); EEOC v. Alliance Residential Co., 2011 WL 586246 (W.D. Tex. Nov. 18, 2011) (“the relevance of [company-wide] information was demonstrated by Alliance's admission that Ms. Laurel was terminated pursuant to a company-wide medical leave policy”); EEOC v. Sterling Jewelers Inc., 2011 WL 5282622 (W.D.N.Y. Nov. 2, 2011) (holding that nationwide scope of the information requested was appropriate since the request legitimately arose from statements on the counseling report indicating that Sterling had a company-wide policy prohibiting discussions about pay). In this case, because RCL admitted that it applies the Bahamas’ medical regulations to all employees who work on ships that fly the Bahamian flag, its admission gave the EEOC “an indication of a realistic expectation rather than an idle hope that something may be discovered” about the alleged discriminatory practice through the analysis of information about others subject to the same regulations. EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002).

Additionally, the district court’s reliance on United Air Lines in determining that the Commission’s requests constituted a mere fishing expedition was misplaced. In United Air Lines, the charge alleged that a pregnant American flight attendant who was assigned to Paris, France was denied temporary disability benefits provided by the French social security system because of her national origin and sex in violation of Title VII. United Air Lines, Inc., 287 F.3d at 646. The EEOC issued a subpoena seeking systemic data about all benefits provided by the French government, a private contractor, or directly by United Airlines or its subsidiaries, which the district court upheld. 287 F.3d at 646-47. The subpoena also requested United Air Lines to identify all employees residing abroad, including in France, and their nationalities (1) who had taken or been placed on medical or disability leave and (2) who had applied for unemployment compensation with the United States or foreign governmental entities for medical reasons including but not limited to pregnancy. Id. at 647.

The Seventh Circuit refused to enforce the EEOC subpoena. It noted that the subpoena was not limited to individuals who may be considered similarly situated to the charging party either by position (flight attendant) or by location (France). United Air Lines, Inc., 287 F.3d at 654. Further, the court opined that the EEOC had failed to explain how “a wholesale review of ‘each and every benefit’” would shed light on “the propriety of UAL’s failure to pay into the French social security system” for its U.S. employees based in France. Id.

In the Court’s view, “[a]llowing the EEOC to conduct such a broad investigation would require us to disregard the Congressional requirement that the investigation be based on the charge.” United Air Lines, Inc., 287 F.3d at 655. The Court noted that if the EEOC did discover evidence of a pattern of discrimination with respect to the additional benefits and against U.S. citizens and non-American United employees abroad but not living in France , it could file a Commissioner's charge and proceed accordingly. Id. at 655 n.7.

In the instant case, the Commission’s subpoena is focused on individuals who are similarly situated to Morabito – namely employees with medical conditions who were disqualified from employment because of Bahamian medical standards. Unlike the EEOC subpoena in United Air Lines, the instant subpoena does not seek information about all of RCL’s 50,000 employees nor does it request data about employees who were separated from employment for non-medical reasons. To the contrary, the scope of the subpoena is tailored to the circumstances presented by the filed charge, namely the disqualification of an employee because of a medical condition.

Additionally, RCL’s admission of its reliance on MSN 1746 to determine who is suitable for initial or continued employment provides a more than sufficient basis for expanding the investigation beyond the parameters of Morabito’s charge to include a determination of whether RCL has engaged in a pattern or practice of discrimination against job applicants as well as employees in violation of the ADA. The admission also supports the EEOC’s efforts to identify other potential victims of the discriminatory practice. In short, although the scope of requested information involves applicants as well as employees with different medical conditions, this subpoena is narrowly tailored to the filed charge. It also does not present the same relevancy concerns as the subpoena in United Air Lines, which required extensive information about all United employees worldwide and a variety of benefits not at issue in the charge, rather than being limited to individuals who may be considered similarly situated to that charging party.

Moreover, the request for information about RCL’s hiring practices also is not “a fishing expedition” merely because Morabito’s charge only concerned his alleged discriminatory termination where RCL’s own explanation of the action Morabito challenged indicated that the company applies the same policy to applicants for hire. See EEOC v. Fed. Exp. Corp., 558 F.3d 842, 855 (9^th Cir. 2009) (rejecting argument that “subpoena is overbroad because the EEOC ‘demand[s] personnel information concerning applicants, hiring, job analyses, evaluations, demotions, training, and terminations, [that] ha[ve] no relevance to the specific claims of discrimination asserted in the charges.’ The subpoena need not request only evidence that is specifically relevant to proving discrimination; the requested information need only be ‘relevant and material to the investigation.’”).

As one court observed, the EEOC’s “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.” Kronos, 620 F.3d at 299. Importantly, “the EEOC is not cabined in its investigation by the specific allegations of and evidence 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.” EEOC v. UPMC, 471 Fed. Appx. 96, 100-01 (3d Cir. 2012).

Although not every charge of discrimination warrants a pattern or practice investigation, EEOC v. Burlington Northern Santa Fe R., 669 F.3d 1154, 1158-59 (10th Cir. 2012), in this case, Morabito’s charge alleging that he was terminated because of a medical condition in tandem with RCL’s admission of its broad application of MSN 1746 to its applicants and employees required the EEOC to “pursue all relevant leads to determine whether the charge warrants a lawsuit.” Konica, 639 F.3d at 370. The Commission cannot ignore facts that support additional claims of discrimination if they are discovered during the investigation of a charge. Gen. Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980) ; Kronos, 620 F.3d at 297 (EEOC “is not required to ignore facts that support additional claims of discrimination). “The EEOC is not merely a proxy for victims of discrimination, but acts also to vindicate the public interest in preventing employment discrimination.” Gen. Tel. Co., 446 U.S. at 326. Whenever the EEOC acts, it “is guided by the overriding public interest in equal employment opportunity asserted through direct Federal enforcement.” Id. (internal quotation marks and ellipses omitted); see also EEOC v. Jacksonville Shipyards, Inc., 696 F. Supp. 1438, 1440 (M.D. Fla. 1988) (EEOC functions “as guardian of the public interest.”). By refusing to enforce the subpoena here, the district court improperly ignored its obligation to ensure that the “Commission’s ability to investigate charges of systemic discrimination not be impaired.” EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984).

The district court also erred in deciding that the subpoenaed information regarding (1) foreign national employees and applicants who were prohibited employment because of their medical conditions or the Bahamian medical regulations and (2) RCL’s hiring practices as well as RCL’s renewal and discharge procedures is irrelevant to the charge under investigation. See T3-DE 50 at 2-4. In the court’s view, the requested information was relevant only to a charge that had yet to be filed. Id. at 4. Given that “[t]he measure of relevance used in subpoena enforcement actions is quite broad,” Florida Azalea Specialists, 19 F.3d at 624, the district court’s ruling is untenable. The identification of RCL employees and applicants with medical conditions who were terminated or refused employment and the production of their personnel and medical documents are relevant to the ADA charge because that information “might cast light on [Morabito’s] allegations” of disability discrimination. Shell Oil, 466 U.S. at 68-69. See also UPMC, 471 Fed. Appx. at 100 (rejecting notion that EEOC is only entitled to evidence that “would” cast light, and stressing that the definitive standard is “might”).

Although RCL argued that a listing of all shipboard employees terminated based on MSN 1746 would not tend to identify persons similarly situated to Morabito because the policy deals with a wide array of dissimilar conditions that disqualify individuals from duty at sea, that argument is specious. See T10-DE 21, RCL’s Opp. to Subpoena Enforcement at 26; also see DE 1-8, Ex. F-Letter Objecting to Nov. RFI at 2. Even if the disqualifying medical conditions of the applicants and former employees are varied and dissimilar to Morabito’s, if MSN 1746 is a “qualification standard[] . . . or other selection criteri[ion] that screen[s] out or tend[s] to screen out an individual with a disability or a class of individuals with disabilities” in violation of the ADA, 42 U.S.C.

§ 12112(b)(6), data identifying who was adversely affected by this standard are relevant to Morabito’s disparate treatment claim as well as any possible disparate impact claim. See Kronos, 620 F.3d at 296 (noting that because an employment test that screens out individuals with disabilities is prohibited by the ADA, “evidence that would ‘cast light on’ either a claim for disparate treatment or disparate impact caused by the use of the Kronos assessments would be relevant”).

Next, information regarding the hiring practices of RCL as they affect those with medical conditions is relevant to whether the company violated the ADA if it terminated Morabito because he has a medical condition, even though Morabito’s charge said nothing about hiring discrimination. Courts have held that employment practices or decisions taken on the same basis as that in the alleged charge may provide relevant information about the challenged employment decision. EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d 366, 370 (7th Cir. 2011) (holding that hiring and employee assignment data are relevant to a charge alleging disparate treatment, disparate discipline, and discriminatory discharge); Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir.1969) (an employer's job classification and hiring practices are relevant to a charge alleging race discrimination and wrongful discharge on that basis.); see also EEOC v. Quantum Foods, LLC, 2010 WL 1693054, at *4 (N.D. Ill. April 26, 2010) (upholding subpoena seeking information regarding the company's hiring and recruiting practices and procedures, including for job positions other than that of butcher, even though charge alleged discriminatory termination of a butcher).

As the Seventh Circuit in Konica stated, the EEOC, in its charge investigations, is “authorized to consider whether the overall conditions in a workplace support the complaining employee’s allegations.” 639 F.3d at 369. In that case, information regarding whether Konica discriminated in hiring or job placement was viewed as assisting the EEOC in determining whether the company had discriminated against the charging party by firing him and subjecting him to discriminatory terms and conditions of employment. Id. at 370. Likewise, in this case, the requested personnel and medical data would advance the Commission’s investigation into the veracity of Morabito’s discriminatory discharge allegation and aid in determining whether Morabito had been subjected to discriminatory treatment based on his medical condition, information well within the purview of Shell Oil. Accordingly, because the information sought is “’not plainly incompetent or irrelevant to any lawful purpose’ of the agency,” Kloster, 939 F.2d at 922, this Court should “decline [RCL’s] invitation to straitjacket the EEOC into an artificially narrow survey of [RCL’s] employment records.” EEOC v. Recruit USA, 939 F.2d 746, 756 (9th Cir. 1991). Rather, this Court should permit the EEOC to investigate the legality of RCL’s employment practices to determine whether there is reason to believe that RCL has engaged in discrimination on the basis of disability.

Here, the district court committed legal error in rejecting the EEOC’s relevancy argument that company-wide information might cast light on Morabito’s charge since the information sought concerns “the same type of discrimination that Morabito alleges, i.e.,. denial of employment based on a medical condition.” T3-DE 50 at 4. Instead of explaining why the information sought might not cast light on the allegations in the charge, the relevant inquiry under Shell Oil, the district court simply decided that, because “[t]he individual charge of discrimination does not allege a company-wide pattern and practice of discrimination under the ADA,” id. at 3-4, “enforcement of the subpoena is inappropriate and would ‘eviscerate the relevancy requirement and condone fishing expeditions.’” Id. at 4 (internal citation omitted). As explained above, the EEOC sought information about the treatment of others because it might help to establish the veracity of Morabito’s charge of discrimination, and because the EEOC is entitled to pursue evidence of a broader systemic pattern of disability discrimination especially when RCL admitted it terminated Morabito based on a policy that it applies to all shipboard employees nationwide.

Finally, insofar as the district court’s decision actually directs the Commission to discontinue its systemic investigation until the agency either files a Commissioner charge or receives “a charge that has yet to be brought,” T3-DE 50 at 4, the court overstepped its limited role in subpoena enforcement proceedings. This Court has recognized that a district court’s role in a subpoena enforcement proceeding is “sharply limited,” Kloster, 939 F.2d at 922, and deference should be accorded an agency’s reasonable construction of a statute it is charged with administering. Florida Azalea Specialists, 19 F.3d at 622. Further, "the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency." EEOC v. KECO Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984). Therefore, a district court should not dictate the path an EEOC investigation takes. See Newsome v. EEOC, 301 F.3d 227, 231 (5^th Cir. 2002) (district court properly rejected request for court order controlling EEOC’s investigation) (citing and quoting KECO, 748 F.2d at 1100).

In improperly suggesting how the Commission should conduct its investigation, the district court may have been influenced by RCL’s argument that RCL’s admission that it terminated Morabito because of his medical condition, as purportedly required by the Bahamian medical regulation, should be sufficient to support a reasonable cause determination regarding Morabito’s charge without more, and thus information about other affected individuals is not needed. T5-DE 54 at 48-49. However, Congress vested the EEOC with the authority to decide how to conduct its investigations, see, e.g., Newsome, 301 F.3d at 231, not the employer; and in conducting its investigation, the Commission is entitled to any information that might cast light on Morabito’s charge so long as it is not “plainly . . . irrelevant.” Kloster, 939 F.2d at 922. Furthermore, as the Commission has already explained, the EEOC, in the furtherance of its public interest role, also is permitted to conduct its investigation in an effort to protect the rights of discrimination victims not mentioned in the charge. United Parcel Serv., 94 F.3d at 318 (“[the EEOC] may, to the extent warranted by an investigation reasonably related in scope to the allegations of the underlying charge, seek relief on behalf of individuals beyond the charging parties who are identified during the investigation.”). Thus, this Court should reject RCL’s evidentiary restrictions adopted by the district court.

By giving the EEOC access only to information to which RCL believes the Commission is entitled, the district court essentially permitted “an alleged perpetrator of discrimination . . . to pick and choose the evidence [it considers] necessary for an agency investigation.” Recruit USA, 939 F.2d at 756-57. The district court’s restrictions hamper the EEOC’s exercise of the broad investigatory authority Congress conferred upon the agency and interfere with its ability to determine whether there is reasonable cause to believe that RCL subjected Morabito to disability discrimination or whether RCL systematically discriminated against individuals with disabilities in its employment practices.

The court’s restrictions also hamper the EEOC’s ability to fulfill its congressional duty to ferret out discrimination because the court has blocked the EEOC’s broad access to any information relevant to the filed charge and has prevented the EEOC from pursuing leads uncovered during the course of a reasonable investigation. Finally, the court has prevented the EEOC from exercising its discretion as to the nature and extent of its investigation, an authority recognized by the Supreme Court. The EEOC should not be forced (as the court suggested) to file a Commissioner charge and risk losing potential class claimants who would fall outside the limitations period of the later charge simply because the charge under investigation was filed by an individual and challenged a single employment practice. This outcome is not what Congress intended since “[t]he net effect would be to hamper significantly the Commission’s ability to investigate expeditiously . . . systemic discrimination.” Shell Oil, 466 U.S. at 72. As one court observed, “[t]he powers granted to the EEOC under Title VII should not be narrowly interpreted, and we decline to hold that the EEOC is powerless to investigate a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge.” EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6^th Cir. 1979). For similar reasons, this Court therefore should vacate the district court order denying enforcement of this EEOC subpoena.

II. THE DISTRICT COURT IMPROPERLY FOUND THAT RCL’S COMPLIANCE WITH THE EEOC SUBPOENA WOULD BE UNDULY BURDENSOME.

A court may decline to enforce an otherwise valid subpoena if compliance would be unduly burdensome. United Air Lines, 287 F.3d at 653. A subpoena is generally considered unduly burdensome if “compliance would threaten the normal operation of a respondent's business,” EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir. 1981), or “unduly disrupt and seriously hinder normal operations of the business.” EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir.1993).

Here, the district court decided that compliance would be unduly burdensome because an RCL official averred that a manual search of its records would take 5-7 employees working full-time for 60 days to review its records and identify the applicants and employees who were disqualified for employment because of medical conditions. T3-DE 50 at 5. The district court erred in accepting his claim as sufficient to support RCL’s contention of burdensomeness. See EEOC v. Randstad, 685 F.3d 433, 452 (4th Cir. 2012) (rejecting district court’s burdensomeness finding where company “asserted only that compiling the requested information would require three employees to spend 40 hours each, at a total cost $14,000 to $19,000,” but did not proffer evidence of its “normal operating costs” or assert “that gathering the requested information would “threaten” or “seriously disrupt” its business operations); Konica, 639 F.3d at 371(deciding that subpoena requiring company “to obtain, organize, and produce the materials . . . falls far short of what is required to modify or quash a subpoena”); Citicorp Diners Club, 985 F.2d at 1040 (holding that it would not be unduly burdensome for an employer to comply with an EEOC subpoena, even though compliance would probably require the services of two full time employees for a period of six months to gather the requested information by reviewing personnel files or interviewing other employees).

Not only did RCL fail to allege with specificity that such commitment of manpower and time would result in an exorbitant expense for its multi-billion dollar business,[9] it did not attempt to establish how compliance would threaten its normal business operations. United Air Lines, 287 F.3d at 653. See also Arctic Exp., Inc. v. United States, 134 F.3d 370 (6th Cir. 1997) (unpublished) (“Absent evidence that photocopying costs have skyrocketed, Arctic cannot show that merely forwarding copies of existing records imposes an undue burden.”).

Further, there appears to be no basis to RCL’s contention that compliance would be unduly burdensome because it would have to instruct its foreign hiring partners to forward their records to the Miami personnel and require 3-4 employees working for 2 months to process these records to determine which individuals are covered by the subpoena request. T4-DE 34 at 15. RCL stated that it has 2,000 employees in its Miami headquarters that make all ultimate personnel decisions concerning its 50,000 employees, even those who were pre-screened by its foreign recruiters. T9-DE 20 at 3. This suggests that the pertinent personnel records are already in RCL’s possession in its Miami headquarters. The work of compiling information from records in its offices cannot be viewed as unduly burdensome. Tempel Steel, 814 F.2d at 486 n.9 (deciding that EEOC subpoena was not defective simply because it required employer to compile information concerning its work force).

Moreover, even if RCL must require its foreign recruiters to provide certain requested personnel records, “[s]ome burden on subpoenaed parties is to be expected and is necessary in the furtherance of the agency’s legitimate inquiry and the public interest.” FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977) (en banc). See also Bradley Lumber Co. v. NLRB, 84 F.2d 97, 100 (5th Cir. 1936) (an investigation may “cause some inconvenience[,]” but this is “part of the social burden of living under government”).

RCL has over 50,000 employees, and despite its decision to maintain records on paper only, “it is presumed, by the very fact that [the employer] has such a large number of employees, that it is sufficiently equipped to handle the records of its employees.” NLRB v. GHR Energy Corp., 707 F.2d 110, 114 (5th Cir. 1982). Indeed, RCL was able to produce the requested information for its American employees covering a three-year period by the original subpoena deadline. T5-DE 54 at 32-35; DE 20-10. Further, the EEOC subpoena is tailored to the charge at issue. It does not request information about all of RCL’s employees; only those who were refused employment because of medical conditions or Bahamian medical standards. Thus, the district court abused its discretion when it permitted RCL to refuse “compliance with a subpoena for relevant information simply upon the cry of ‘unduly burdensome,’” Citicorp Diners Club, 985 F.2d at 1040, because RCL’s burdensomeness arguments “fall[] far short of what is required to modify or quash a subpoena.” Konica, 639 F.3d at 371.[10]

CONCLUSION

The personnel and medical information requested by the EEOC’s subpoena is narrowly tailored and clearly relevant to Morabito’s charge alleging that RCL terminated him because of his medical condition in violation of the ADA. Furthermore, RCL has not satisfied its burden of proving that compliance would be unduly burdensome. Therefore, the Commission urges this Court to vacate the district court’s order and direct that court to enforce the Commission’s subpoena in its entirety.

[1] The “T” designation refers to the Appendix tab and the number refers to which tab the cited document can be found. “DE” refers to the district court docket entry.

[2] For convenience, EEOC will refer to the Bahamian medical regulation by its original policy number of MSN 1746, even though it has been renumbered to MSN 1765.

[3] RCL states that it has cruise vessels based in 53 ports worldwide, 37 of which are outside the United States. From mid-2009 to mid-2012, its cruise vessels visited 330 ports worldwide, 290 of which were outside the U.S. and its territories. T4-DE 34 at 13.

[4] Marine Operations covers employees involved in ship operation, navigation, and other seafaring duties, including ship officers, engineers, technicians, medical staff, and similar operational positions. Hotel Operations covers employees involved in what might be termed “front of the house” positions, including entertainers, wait staff, and positions associated with food and lodging. T9-DE 20 at 3 n.2.

[5] The Commission had issued its first subpoena on February 8, 2011 (AT-11-021), but RCL raised concerns about service of process. Hence, the EEOC issued a second, identical subpoena on April 18, 2011 (AT-11-049). See T13-DE 1-2 at 5.

[6] To the extent that RCL maintains that less than 30 percent of its ships “touch U.S. waters,” and that it has an electronic personnel data base “that says this crew member worked on these ships from these dates,” T5-DE 54 at 44, EEOC is willing to modify the scope of its subpoena and limit its requests for personnel and medical information to RCL’s foreign national employees who were assigned to foreign-flagged ships that port in U.S. waters and who were denied employment because of their medical conditions for the time period of August 2009 to April 2011. However, the Commission still desires production of records for the foreign national applicants who received job offers but were denied employment because of their medical conditions.

[7] The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.

[8] As aforementioned, the Commission is willing to restrict its request for personnel and medical data of RCL’s foreign national employees to those who were assigned to ships that port or operate in U.S. waters. See supra note 6.

[9] According to EEOC’s Determination on RCL’s Petition to Revoke or Modify the Subpoena, RCL’s 2010 assets totaled $19.69 billion and its net income was $547 million. T13-DE 1-2 at 15.

[10] If this Court decides that the subpoenaed information is unduly burdensome, rather than quashing the subpoena, the Commission urges the Court to adopt the agency’s proposed modification, see note 6, and limit the demand for employee information to those foreign nationals who were assigned to ships that port or operate in U.S. waters and later were terminated because of their medical conditions. See Florida for Kennedy Comm., 681 F.2d at 1295 n.10 (this Court has the power to narrow the subpoena in question); see also Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (“modification of a subpoena is preferable to quashing it outright”); United Air Lines, 287 F.3d at 653 (“a court may modify or exclude portions of a subpoena” that are unduly burdensome).