No

INTRODUCTION

In its opening brief, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) argued that the district court erred in refusing to enforce the disputed portions of an administrative subpoena. Specifically, the Commission asserted that in deciding that the EEOC’s subpoena is overbroad and seeks information irrelevant to the filed charge, the district court erred in concluding the EEOC cannot investigate potential systemic violations of the same nature as that alleged in the charge. Congress invested the EEOC, not the employer, with the authority to determine the nature and scope of its investigation, and since the information concerning potential systemic violations surfaced in the context of the Commission’s investigation of the individual charge and was provided by Royal Caribbean Cruise Line (“RCL”) itself, the Commission’s investigation met the requirement of reasonableness and the court should have enforced the subpoena. EEOC Br. at 25-37.

Additionally, the Commission argued that the district court erred when it concluded that an individual charge that does not allege a class violation cannot sustain a systemic investigation and when it directed the EEOC to issue a Commissioner charge in order to obtain systemic information. EEOC Br. at 38-42. Finally, the Commission argued that the district court improperly determined that compliance with the EEOC subpoena would pose an undue burden since RCL is a global corporation with billions of dollars in assets, and it did not present any evidence that utilization of 5-7 employees for two months for the production of the subpoenaed data would threaten or disrupt its business operations. EEOC Br. at 42-47.

In response, RCL contends that the district court’s judgment should be affirmed. Specifically, RCL argues that the district court did not commit clear error or abuse its discretion in refusing to enforce the disputed portions of the EEOC’s subpoena because the requested information was not relevant to the filed charge but instead was an inappropriate fishing expedition for potential class members. RCL Br. at 17-28. RCL also argues that its declaration was sufficient to support its argument and the court’s finding that compliance would be unduly burdensome. Br. at 28-33. RCL also proposes that the district court’s judgment can be affirmed on the alternative ground of coverage because the ADA does not cover foreign nationals on foreign-flagged ships and thus the request for information about employment practices beyond the reach of the ADA is overbroad. RCL Br. at 33-44. Finally, RCL requests that the Court reject the EEOC’s proposed modification to its subpoena to limit the requested data to employees assigned to ships that operate out of U.S. ports because the modification was not presented to the district court and because it “suffers from many of the same infirmities discussed previously with respect to the original subpoena.” RCL Br. at 45-47.

For the reasons discussed below (and in its main brief), the Commission urges this Court to reverse the district court's judgment and to enforce the subpoena as originally conceived or to modify it as proposed by the EEOC.

ARGUMENT

1. The Subpoena Sought Relevant Information

RCL maintains that “[n]one of the disputed portions of the subpoena concern or pertain to Morabito and the information demanded is not relevant or necessary to the resolution of his charge.” RCL Br. at 15. In his charge, Morabito asserted that he is an individual with a disability who informed his employer of his medical condition and subsequently was terminated in violation of the ADA. T16. Under Title VII, as incorporated into the ADA, 42 U.S.C. § 12117(b), 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) (emphasis added). The information solicited in the instant case pertains to the alleged unlawful employment practice of disability discrimination and to individuals who are similarly situated to Morabito – namely actual or potential employees with medical conditions who were disqualified from employment because of their medical conditions or Bahamian medical standards.

That RCL believes this information is not “necessary” to the resolution of Morabito’s charge is not the point. So long as the requested data is relevant and may shed light on Morabito’s charge, which it is and does for reasons already stated, EEOC Br. at 25-37, Congress places no limit on the amount of information to which the EEOC is entitled. Univ. of Pa. v. EEOC, 493 U.S. 182, 191 (1990) (EEOC has a “broad right of access to relevant evidence”). The Commission is entitled to any information that might cast light on Morabito’s charge so long as it is not “plainly . . . irrelevant.” EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir.1991).

The district court should not have limited the EEOC’s access to relevant evidence simply because RCL does not dispute that it terminated Morabito based on his medical condition. RCL’s admission that it applies MSN 1746, a Bahamian medical standard that determines who is suitable for initial or continued employment, to all of its applicants and employees, triggered the expansion of the investigation to include a determination of whether RCL has engaged in widespread discrimination in violation of the ADA. Since the EEOC discovered this potential systemic violation during the course of its investigation of Morabito’s charge, the EEOC is not compelled to ignore it until a new charge is filed and another investigation is initiated. To require such duplicative efforts would waste resources and delay the EEOC’s efforts to investigate whether RCL has violated the ADA.

RCL claims that “the ’comparative data’ and contextual information would not shed any additional light on the employment actions taken with respect to Morabito.” RCL Br. at 23. But in United States v. Morton Salt Co., 338 U.S. 632 (1950), a case involving the investigative powers of the Federal Trade Commission, the Supreme Court held that “[w]hen investigative and accusatory duties are delegated by statute to an administrative body, it. . . may take steps to inform itself as to whether there is probable violation of the law.” Id. at 643.

Here too the EEOC has a right to “take steps” to determine whether MSN 1746 actually required Morabito’s termination and whether RCL’s application of that Bahamian medical standard systemically violates the ADA. In evaluating Morabito’s claim, the EEOC notes that, in March 2009, Morabito was diagnosed with HIV and Karposi Sarcoma. According to RCL, Karposi Sarcoma is AIDS-related. T15, DE 1-4, RCL Position Statement at 3. Morabito received medical and anti-retroviral treatments for his medical conditions, and his doctor cleared him to return to work without restrictions. Id. On Morabito’s return in August 2009, RCL declined to renew Morabito’s contract because of his medical condition. Id. at 3-4; T13, DE 1-2, EEOC Determination at 2.

Under the Bahamian medical standard MSN 1746, a crew member may be assessed as not fit in the following categories: B – permanently unfit; C – indefinitely unfit; review in months; and D- temporarily unfit; review in weeks. T15 at 6, DE 1-4 at 2 ¶ 8. MSN 1746, however, instructs that in a serving seafarer or crew member, “a decision of permanent unfitness should be reached only after a full investigation and consideration of the case and should be fully discussed with the seafarer. The seafarer’s General Practitioner should be informed of the decision and the reasons for it, provided permission to do so has been obtained from the seafarer.” Id. at 7, DE 1-4, MSN 1746 at 3 ¶ 14.

Further, MSN 1746 directs that “[a]part from the purely medical aspects, the occupational circumstances which apply at sea should be fully considered, especially in any borderline case.” T15 at 5, DE 1-4, MSN 1746 at 1 ¶ 3. Lastly, MSN 1746 directs that “[a]pproved doctors should make full use of the categories E,[1] C, and D before declaring a serving seafarer permanently unfit.” Id. at 3 ¶ 9. That being said, MSN 1746 indicates that seafarers with confirmed cases of “AIDS related complex and clinical AIDS” are to be classified as B or permanently unfit. Other infectious or contagious diseases are classified as D or temporarily unfit “until satisfactorily treated.” Id. at 7.

Morabito was an assistant server whose medical condition was under control by medication. T15, DE 1-4, RCL Position Statement at 3. RCL stated that Morabito was not “disabled” because his condition did not interfere with his “major life functions.” Id. Yet, it terminated him because Karposi Sarcoma is considered to be an opportunistic infection that weakens the immune system, and RCL believed having an immune compromised person in the enclosed quarters of a cruise ship would constitute a direct threat to the health or safety of the employee, even though RCL produced no evidence that an AIDS or immune system diagnosis had been made of Morabito. Id. at 4.

While RCL admits to terminating Morabito because of his allegedly AIDS-related condition, the record does not reflect whether Morabito was diagnosed as having AIDS, or whether RCL discussed Morabito’s medical condition with him or consulted his doctor before terminating him, as MSN 1746 requires. Thus, information beyond RCL’s admission is critical to the EEOC’s investigation to determine whether RCL applied the Bahamian medical standards appropriately.

Evidence of how RCL handled other employees and applicants with medical conditions would assist the EEOC in determining whether RCL discriminated against Morabito in violation of the ADA, but also whether RCL categorically engages in disability discrimination when faced with candidates for employment it believes have infectious diseases or AIDS, as they appeared to believe of Morabito. Hence, the disputed portions of the subpoena are entirely relevant to the EEOC’s investigation of Morabito’s charge and the EEOC, as the enforcement agency, is entitled to “take steps to inform itself as to whether there is probable violation of the law,” including potential systemic violations. Morton Salt, 388 U.S. at 643.

Most importantly, RCL has offered no compelling rationale or legal authority that would prevent the EEOC from investigating an employment policy that RCL admits was applied company-wide and was the impetus for Morabito’s termination. 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.” EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d 366, 370 (7th Cir. 2011).

Moreover, because that practice impacts U.S. and foreign national employees and applicants who seek employment with RCL, the Commission cannot ignore facts that support relief for additional victims of discrimination, especially if they are discovered during the investigation of a charge. Gen. Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980) ; EEOC v. Schwan’s Home Serv., 644 F.3d 742, 748 (8th Cir. 2011) (“Because the EEOC’s investigation into Milliren’s charge of individual gender discrimination revealed potential systemic gender discrimination, the EEOC had the authority to subpoena information relevant to systemic gender discrimination even absent a valid systemic charge by Milliren.”); EEOC v. Kronos Inc., 620 F.3d 287, 297 (3d Cir. 2010) (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. 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).

2. The Subpoena is not Unduly Burdensome.

Although RCL maintains that the district court did not abuse its discretion in finding that the EEOC’s subpoena was unduly burdensome, RCL continues to ignore the appropriate legal standard for establishing burdensomeness and still offers no evidence to support a finding that “compliance would threaten the normal operation of [the] 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). Instead, RCL reiterates that compliance would be unduly burdensome because it would take “two to three employees working full time for approximately two months” to identify all of its crew members who were terminated for a medical reason, RCL Br. at 30-31, and an estimate of “three to four employees working full time for approximately two months” to identify the applicants who were not hired because of a medical reason. RCL Br. at 31. Based on this speculation, RCL states that “although [it] did not ham-handedly aver ‘disruption’ of its normal business functions, it is fairly self-evident that diverting five to seven employees from their normal job duties for two months is clearly more than an ‘inconvenience.’” RCL Br. at 32.

As previously contended, RCL’s proffer is insufficient to establish that compliance would be unduly burdensome. EEOC Br. at 43-47 (citing, for example, 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). RCL is a multi-billion dollar business with 2,000 employees in its Miami headquarters. T13, DE 1-2 at 7, 15. Most of RCL’s personnel records and medical files are housed in its Miami headquarters. T5, DE 54 at 33-34. In the absence of any explanation of how a commitment of manpower and time would result in an exorbitant expense for it,[2] RCL cannot establish that compliance would threaten its normal business operations. EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002). See also EEOC v. Alliance Residential Co., 866 F.Supp.2d 636, 644 (W.D.Tex. 2011) (“[t]he manual review of personnel files does not rise to the level of an undue burden”).

Moreover, RCL’s contention that it does not have 2,000 employees in its Miami headquarters making personnel decisions does not save the district court’s judgment. RCL Br. at 32 n.20. While EEOC inadvertently misstated that RCL’s 2,000 headquarter employees make personnel decisions, EEOC Br. at 45, the import of this statement -- namely that RCL’s human resources staff in Miami makes the ultimate employment decisions about all 50,000 employees and thus the pertinent personnel records are in RCL’s Miami headquarters and not necessarily with its foreign hiring partners, as RCL has argued, see, e.g., RCL Br. at 31 -- remains undisputed. See EEOC Br. at 45-47. Hence, in accordance with 29 U.S.C. § 161, RCL is required to produce any evidence in its possession or under its control, 42 U.S.C. § 20009-e (incorporating by reference the subpoena provisions of the National Labor Relations Act), especially since it has not shown that such production is an undue burden. Thus, the district court abused its discretion in deciding that the EEOC subpoena was unduly burdensome.

3. Jurisdiction is Not an Alternative Basis for Affirmance

RCL contends that if this Court finds the subpoenaed information is relevant and not unduly burdensome, it could affirm the district court’s judgment on the alternative ground that “the disputed portions of the subpoena – all of which pertain to foreign crew or foreign crew applicants on foreign-flagged vessels – concern employment practices not covered by the ADA.” RCL Br. at 34. RCL’s argument is untenable. The EEOC has made a plausible argument that foreign national employees are covered by the ADA, and thus that the EEOC has jurisdiction to investigate fully Morabito’s charge.

Applying the jurisdictional standard for EEOC subpoenas set forth in EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991), the magistrate’s report observed that to pursue subpoena enforcement of the provisions seeking information about foreign nationals, all EEOC needed to do was establish a plausible basis for jurisdiction over the foreign national’s discrimination charge. T3, DE 34, Report and Recommendation at 5-6. Based on EEOC’s evidence that Morabito’s vessel ports in U.S. waters, that Morabito worked on the ship while it was in U.S. waters, and that RCL admitted it conducts substantial business in the United States, the magistrate decided that EEOC had satisfied its burden of establishing plausible jurisdiction. Id. at 6.

In the district court, RCL did not object to the magistrate’s ruling and did not contest or refute the magistrate’s factual findings on this question. Hence, the district court did not revisit the issue but instead adopted the magistrate’s findings. T3, DE 50 at 5. Consequently, RCL’s jurisdictional challenge on appeal is only reviewable for plain error. Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1308 (11th Cir. 2013) (holding in ADA summary judgment case that “failure to object means that we review the facts laid out by the magistrate judge only for plain error or manifest injustice” and that conclusions of law are reviewed de novo); LoConte v. Dugger, 847 F.2d 745, 749–50 (11th Cir.1988) (“Findings of fact made by a United States magistrate under the authority of 28 U.S.C. § 636, and which are accepted and adopted by the district court without objection by any party, may be reviewed on direct appeal only for plain error or manifest injustice.”) (internal quotation marks omitted). On this coverage issue, there is no legal, plain, or clear error.

In deciding that the EEOC produced sufficient proof of plausible jurisdiction, the magistrate (and by adoption the district court) relied on evidence that is very similar to that which was accepted in Kloster as sufficient to establish plausible jurisdiction. In Kloster, the Court noted that the cruise line’s employees worked both in the United States and elsewhere, and that Kloster had its principal executive offices in Miami. Kloster, 939 F.2d at 922. The EEOC adduced identical facts in this case. T3, DE 34, Report and Recommendation at 6. Thus, there is no way RCL can dispute the factual basis of the district court’s ruling on jurisdiction.

More significantly, RCL cannot point to any legal error in the district court’s ruling. This Court has already rejected a similar jurisdictional argument for non-enforcement. Indeed, this Court in Kloster made clear that a subpoena enforcement action is not the time to determine whether the employer or target of a subpoena has a coverage defense. Kloster, 939 F.2d at 922 (“It can no longer be disputed that ‘a subpoena enforcement proceeding is not the proper forum in which to litigate the question of coverage under a particular statute.’ ”) (quoting EEOC v. Peat, Marwick, Mitchell & Co., 775 F.2d 928, 930 (8th Cir.1985)). See also Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216 (1946) (rejecting any power in the district court to adjudicate coverage, and ruling that so long as subpoena is valid, the inquiry must not be “‘limited . . . by forecasts of the probable result of the investigation’”) (quoting Blair v. United States, 250 U.S. 273, 282 (1919)). This Court recognized that the oversight role of federal courts in subpoena enforcement proceedings is “sharply limited,” Kloster, 939 F.2d at 922, and that the “EEOC must be allowed to investigate the facts, including the facts relevant to jurisdiction, as an initial matter.” Id. at 924.

Notwithstanding, RCL ignores the facts supporting coverage and contends that Kloster makes an exception to the coverage rule “where the absence of jurisdiction is clear or when the agency has not made a plausible showing of jurisdiction.” RCL Br. at 34. RCL then sets forth its jurisdictional defense by citing to Supreme Court “law of the flag” cases that did not involve subpoena enforcement. RCL Br. at 35-40. Arguably, those cases may become relevant if the EEOC pursues litigation against RCL that seeks redress for foreign nationals on foreign-flagged vessels that never touched or ported in U.S. waters.[3] Cf. Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 888 (11^th Cir. 2013) (“[i]t is well-settled that these [labor] statutes [LMRA and NLRA] do not apply to wholly-foreign disputes”). But as this Court has properly observed, “the Supreme Court has not indicated that the ‘law of the flag’ is dispositive in a case such as this. Thus, we cannot conclude that there is a clear absence of jurisdiction.” Kloster, 939 F.2d at 923.

Congress stressed in the ADA and its amendments that the purpose of the statute was “(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities [and] (2) to provide clear, strong, consistent enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1) & (2) (emphasis added). And such individuals include aliens working within the United States as well as American citizens. See Appendix M - Enforcement Guidance on Application of Title VII and ADA to Conduct Overseas and to Foreign Employers in the United States (hereinafter “EEOC’s ADA Foreign Employer Guidance”), Vol. 2, Sec. 2 EEOC Compl. Man., 605 EEOM at 140 (“Title VII and the ADA also cover discrimination by foreign companies within the United States, whether the charging party is a U.S. citizen or an alien”); accord Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 95 (1973) (“Title VII was clearly intended to apply with respect to the employment of aliens inside any State”).

Disability discrimination is of paramount concern to U.S. citizens. See 42 U.S.C. § 12101(a) (7) (“the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity”). It is the EEOC’s responsibility to assure equality of employment opportunity in situations where federal fair employment laws apply. 42 U.S.C. § 12101 (b)(3) (another ADA goal is “to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities”). To fulfill this goal, EEOC’s view is that “[w]here discrimination occurs within the United States, . . . Title VII and the ADA will, absent treaty constraints, generally apply even to foreign employers not controlled by U.S. entities.” See EEOC’s ADA Foreign Employer Guidance, 605 EEOM 132 n.4. Accord Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119, 125 (2005) (reversing the Fifth Circuit’s holding “that, absent a clear indication of congressional intent, general statutes do not apply to foreign-flag ships”); id. at 149 (“Title III [of the ADA] applies to foreign ships only to the extent to which it does not bear on their internal affairs”) (Thomas, J., concurring in part, dissenting in part, and concurring in the judgment in part).

Of course, RCL does not contend that the ADA does not apply to it because it is a foreign cruise line, but rather that its foreign employees are not protected by the ADA. It is the EEOC’s position, as discussed, that when those employees perform work in the United States, they are protected by the ADA for much the same reason foreign companies operating in the United States are bound to obey the laws against discrimination, as RCL concedes. Threshold Issues, EEOC Compliance Man., 605 EEOM 10 (“Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status.”).

At least one federal court has voiced agreement with the EEOC’s foreign employer guidance and decided that the ADA applies to a foreign employer’s operations occurring in the United States. See Morelli v. Cedel, 141 F.3d 39, 44 (2d Cir. 1998) (“We therefore agree with the E.E.O.C. . . . that the law generally applies ‘to foreign firms operating on U.S. soil.’”) (internal citation omitted). In reaching this conclusion, the Second Circuit observed, “[t]he plain language of the . . . foreign-employer exclusions in Title VII of the Civil Rights Act of 1964. . . and the Americans with Disabilities Act of 1990 (ADA) . . . indicates that a foreign employer's domestic operations are not excluded from the reach of those statutes.” Id. at 43 (internal citations omitted).[4] The Court also noted that “’the highest level of protection afforded by commercial treaties’ to foreign corporations operating in the United States is generally no more than ‘equal treatment with domestic corporations[.]’” Id. That Court therefore concluded that “equal treatment would require that antidiscrimination rules apply to foreign enterprises' U.S. branches, since ‘defending personnel decisions is a fact of business life in contemporary America and is a burden that the domestic competitors of foreign enterprise have been required to shoulder.” Id. at 43-44.

If the EEOC is wrong in its view that ADA coverage exists, RCL will have an opportunity to raise its jurisdictional defense in a case on the merits should any such case be brought. Kloster, 939 F.2d at 924. But at this stage in reviewing a subpoena enforcement action, as the district court properly held, it is not the court’s job to assess the underlying merits of a charge of discrimination. “[A]ny effort by the court to assess the likelihood that the Commission would be able to prove the claims made in the charge would be reversible error.” Shell Oil, 466 U.S. at 72 n. 26. Therefore, this Court should reject RCL’s alternative basis for affirmance as well as RCL’s argument that EEOC can only obtain information to develop a class of potential claimants if it first proves that the ADA covers foreign crew of foreign-flagged vessels. See RCL Br. at 33.

4. Alternatively, this Court Can Modify the EEOC’s Subpoena.

Finally, to the extent that RCL complains about the breadth of the subpoena because it encompasses foreign employees and applicants who have never worked in U.S. territory, RCL Br. at 23, this Court should, at minimum, enforce the subpoena to the extent that it requests data about the employees assigned to RCL’s ships that “touch U.S. waters” or operate out of U.S. ports. EEOC Br. at 14 & 47 n.10. If the Court were to reverse the district court’s order quashing the subpoena and remand for purposes of ordering more limited enforcement, that would also eviscerate many of RCL’s concerns with the burdensomeness of compliance. See, e.g., New Orleans Pub. Serv., Inc. v. Brown, 507 F.2d 160, 164-65 (5th Cir. 1975), (“it was within the power of the trial court to modify” and the district court “was clearly in error in quashing the subpoena in its entirety”). Accord Federal Election Comm'n v. Florida for Kennedy Committee, 681 F.2d 1281, 1295 n.10 (11th Cir. 1982) (Clark, J., dissenting) (this Court has the power to narrow the subpoena in question); Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (“modification of a subpoena is preferable to quashing it outright”).

As in Brown, EEOC has demanded information that may be difficult to compile since RCL allegedly lacks an electronic database, but that does not justify non-enforcement. The EEOC has satisfied its plausible jurisdiction burden and has shown that the ADA applies to foreign-flagged ships that port in U.S. waters whose employees are subject to employment decisions made in RCL’s Miami office. Moreover, while RCL contends that it “does not maintain a database that would allow it to readily identify which of its shipboard employees or applicants were discharged or not hired because of a medical reason or based on the BMA standards for seafarers,” T10, DE 21, RCL Opp. to Subpoena Enf. at 27, RCL does have an electronic database “that says this crew member worked on these ships from these dates.” T5, DE 54 at 44. Hence, this search tool would permit RCL to identify the crew members on those ships that port or operate in U.S. waters and aid RCL in quickly complying with the EEOC subpoena as it did with respect to the employees who were U.S. citizens.

Thus, this Court, as was the district court, is free to enforce a subsection of the disputed portion of the subpoena if it is convinced that full enforcement would be unreasonable. Konica, 639 F.3d at 371 (“A court can ‘modify or exclude portions of a subpoena only if the employer “carries the difficult burden of showing that the demands are . . . unreasonably broad.”’”) (internal citations omitted). To do so is functionally identical to reversing the district court’s order to quash and remanding for enforcement of part of the subpoena, as the Fifth Circuit did in Brown.

This Court’s partial enforcement or remand for partial enforcement is not foreclosed by RCL’s argument that this Court should not consider the proposed subpoena modification because the EEOC did not present it to the district court in the first instance. RCL Br. at 46. Substantively, the contested sections of the subpoena have always encompassed foreign nationals on RCL ships that operate in U.S. waters. Indeed, Morabito was a foreign national assigned to a ship that ported in Miami. Thus, partial enforcement does not present a “new” or “different” issue that must be considered waived or forfeited simply because the district court did not avail itself of the opportunity to enforce partially the subpoena rather than rejecting all the disputed provisions.

CONCLUSION

The district court’s judgment should be reversed because RCL has not demonstrated that the subpoenaed information is irrelevant and it 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 or in the proposed modified form.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

______________________________

s/PAULA R. BRUNER

Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4731

paula.bruner@eeoc.gov

[1] The “E” classification is “for restricted service only.” T15 at 6, DE 1-4 MSN 1746 at 2 ¶ 8. Restricted service limits the seafarer’s employment to certain shipping trades, geographical areas, types of ships, or jobs for a period of time established by an approved doctor. Id. at 7, DE 1-4 at 3 ¶ 13.

[2] 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.

[3] While the subpoena enforcement stage is not the appropriate time to address RCL’s potential jurisdictional or coverage defense, the EEOC notes that some of the cases on which RCL relies do not clearly provide a basis for finding a lack of jurisdiction in this instance. For example, in Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957), the Supreme Court noted that the dispute was largely between a foreign employer and a foreign crewmember operating under foreign law and that the only “American connection was that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing.” Id. at 142 (internal citation and quotation marks omitted). Furthermore, this Court in Kloster did not consider the “law of the flag” rule of international law in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963), to “foreclose” any inquiry regarding jurisdiction “in contexts other than the jurisdiction of the National Labor Relations Board,” Kloster, 939 F.2d at 923, especially where post-McCulloch, the Supreme Court made clear that other factors may outweigh the “law of the flag.” See, e.g., Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-10 (1970) (Jones Act case where Greek corporation had offices in the United States, regularly engaged in commerce between the U.S. and other foreign countries, and “its entire income is from cargo either originating or terminating in the United States”). Moreover, as this Court observed in Kloster, even if the “law of the flag” were dispositive, “it is possible that the discovery that the EEOC seeks will establish that part of the activities of the employees occurred in [RCL’s] main offices in downtown Miami or elsewhere in the United States and not aboard the foreign flag vessel.” Kloster, 939 F.2d at 924 n.4.

[4] Also see Gaujacq v. Electricite de France Int’l N. Am., Inc., 572 F.Supp.2d 79, 86 (D.D.C. 2008) (“Title VII applies to foreign companies operating in the United States, and is intended to protect aliens working in the United States as well as citizens.”), aff’d in part and rev’d in part on other grounds, 601 F.3d 565 (D.C. Cir. 2010); Ward v. W&H Voortman, Ltd., 685 F.Supp. 231, 232 (M.D. Ala. 1988) (holding that Title VII applies to a foreign company “to the extent that they take employment action against employees working in the United States.”).