Case: 13-13519 Date Filed: 11/06/2014 Page: 1 of 13
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 13-13519
D.C. Docket No. 1:12-mc-22014-JEM
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff - Appellant,
versus
ROYAL CARIBBEAN CRUISES, LTD.,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Florida
(November 6, 2014)
Before ED CARNES, Chief Judge, and RESTANI, * Judge, and MERRYDAY, **
District Judge.
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
**
Honorable Steven D. Merryday, United States District Judge for the Middle District of Florida,
sitting by designation.
Case: 13-13519 Date Filed: 11/06/2014 Page: 2 of 13
PER CURIAM:
The Equal Employment Opportunity Commission (“the EEOC” or “the
Commission”) appeals the district court’s denial of the EEOC’s application for
enforcement of its administrative subpoena issued to Royal Caribbean Cruises,
Ltd. (“RCCL”). After careful consideration and with the benefit of oral argument,
we affirm. 1
BACKGROUND
In June 2010, Jose Morabito, an Argentinean national who was employed by
RCCL as an assistant waiter on one of its cruise ships, filed a charge of
discrimination with the EEOC. Mr. Morabito alleged that RCCL violated the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, when RCCL
refused to renew his employment contract after he was diagnosed with a medical
condition. Mr. Morabito had been diagnosed with HIV and Kaposi Sarcoma, but
he had been declared fit for duty by his physician.
RCCL responded to the charge with a position statement contending that
(1) the ADA was inapplicable because Mr. Morabito was a foreign national who
was employed on a ship flying the flag of the Bahamas and (2) because RCCL’s
ships are registered under the law of the Bahamas, RCCL was required to follow
the Bahamas Maritime Authority (“BMA”) medical standards for seafarers, which
1
The district court had jurisdiction pursuant to 42 U.S.C. § 2000e-9 (2012) and 29 U.S.C.
§ 161(2). We exercise jurisdiction pursuant to 28 U.S.C. § 1291.
2
Case: 13-13519 Date Filed: 11/06/2014 Page: 3 of 13
allegedly disqualified Mr. Morabito from duty at sea.
After receiving RCCL’s position statement, the EEOC requested a list of all
employees discharged by RCCL since 2010 pursuant to the BMA medical
standards. RCCL objected, asserting that the ADA did not cover foreign nationals
working on foreign-flagged ships and that the information sought was not relevant
to Mr. Morabito’s charge.
The EEOC ultimately issued an administrative subpoena, which included
requests for the following information 2:
(1) List all employees who were discharged or whose contracts were
not renewed [from August 25, 2009, through present 3] due to a
medical reason . . . .
(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, a copy of the
separation notice and the last known contact information for each
individual.
(3) For each employee listed in response to request number l, 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.
2
The subpoena also requested information pertaining to RCCL’s general hiring and firing
practices and its business operations in Miami, Florida. RCCL fully responded to these requests.
3
The EEOC’s original subpoena requested information from January 1, 2008, through present.
The EEOC modified the relevant timeframe so that the information was limited to August 25,
2009, through present.
3
Case: 13-13519 Date Filed: 11/06/2014 Page: 4 of 13
(4) List all persons who applied for a position but were not hired
within the relevant period due to a medical reason . . . .
(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.
RCCL partially complied by providing records for employees or applicants who
were United States citizens. The EEOC sought to compel enforcement of the
requests for the remaining records regarding non-U.S. citizens who had been
discharged or denied employment because of a medical condition.
The magistrate judge recommended that the petition to enforce the subpoena
be denied on the grounds that the information sought was not relevant to Mr.
Morabito’s charge and that compliance with the disputed portions of the subpoena
would be unduly burdensome. The EEOC filed objections with the district court.
The district court rejected the EEOC’s contentions and affirmed and adopted the
magistrate judge’s report and recommendation. The EEOC appeals.
DISCUSSION
In investigating allegations of unlawful employment practices, the EEOC is
entitled to inspect and copy “any evidence of any person being investigated or
proceeded against that relates to unlawful employment practices . . . and is relevant
to the charge under investigation.” 42 U.S.C. § 2000e-8(a) (2012). Although
4
Case: 13-13519 Date Filed: 11/06/2014 Page: 5 of 13
“courts have generously construed the term ‘relevant’ and have afforded the
Commission access to virtually any material that might cast light on the allegations
against the employer,” the Supreme Court has cautioned against construing the
EEOC’s investigative authority so broadly that the relevancy requirement is
rendered “a nullity.” EEOC v. Shell Oil Co., 466 U.S. 54, 68–69 (1984). A
district court also “may weigh such equitable criteria as reasonableness and
oppressiveness in issuing a subpoena for documents.” EEOC v. Packard Elec.
Div., Gen. Motors Corp., 569 F.2d 315, 318 (5th Cir. 1978). 4
“The ‘relevance’ of documents in an administrative proceeding is a mixed
question of law and fact, which implies that our standard of review of such
determinations should look either to ‘legal error’ or to ‘clear error,’ depending on
the circumstances.” Id. at 317–18. We review the district court’s balancing of the
relative hardships and benefits of enforcement for abuse of discretion. Id. at 318.
We find no error in the district court’s opinion.
As the district court noted, the record below makes clear that the disputed
portions of the subpoena are aimed at discovering members of a potential class of
employees or applicants who suffered from a pattern or practice of discrimination,
rather than fleshing out Mr. Morabito’s charge. Although statistical and
comparative data in some cases may be relevant in determining whether unlawful
4
All decisions of the Fifth Circuit issued prior to the close of business on September 30, 1981,
are binding precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
5
Case: 13-13519 Date Filed: 11/06/2014 Page: 6 of 13
discrimination occurred, the EEOC was required to make some showing that the
requested information “bears on the subject matter of the[] individual complaint[].”
Id.
The arguments presented by the EEOC on this point amounted to simply
parroting the Supreme Court’s statement that the information “might cast light on
the allegations” against RCCL. Shell Oil, 466 U.S. at 69. It is not immediately
clear, however, why company-wide data regarding employees and applicants
around the world with any medical condition, including conditions not specifically
covered by the BMA medical standards or similar to Mr. Morabito’s, would shed
light on Mr. Morabito’s individual charge that he was fired because of his HIV and
Kaposi Sarcoma diagnoses. This is especially so as RCCL admits that Mr.
Morabito was terminated because of his medical condition, which RCCL alleges
was required by the BMA medical standards. This does not appear to be a case
where statistical data is needed to determine whether an employer’s facially neutral
explanation for the adverse employment decision is pretext for discrimination. We
cannot say based on the record before us that the district court clearly erred in
determining the interrelation, or lack thereof, between the information sought and
the allegations in Mr. Morabito’s charge. See Packard, 569 F.2d at 318 (holding
that district court’s finding that facility-wide statistical data was not relevant to
individual charges of discrimination was not clearly erroneous); EEOC v. United
6
Case: 13-13519 Date Filed: 11/06/2014 Page: 7 of 13
Air Lines, Inc., 287 F.3d 643, 654–55 (7th Cir. 2002) (holding that world-wide
company information regarding employees who had taken medical leave of
absence or had been laid off and benefits they received was not relevant to
resolving individual flight attendant’s charge that employer unlawfully failed to
make contributions to French social security system on behalf of Americans
employed or domiciled in France).
The EEOC focused most of its efforts before the district court, and in its
briefs before us, on its argument that the EEOC is entitled to expand the
investigation to uncover other potential violations and victims of discrimination on
the basis of disability. According to the EEOC, this information is relevant
because it is the same type of discrimination alleged in Mr. Morabito’s charge and
RCCL’s reliance on the BMA standards suggests that others might have been
discriminated against. We do not construe the relevancy standard so broadly. It
might be that this information is related to Mr. Morabito’s individual charge, but
the standard by which the EEOC’s subpoena power is governed is “relevant to the
charge under investigation.” 42 U.S.C. § 2000e-8(a) (emphasis added). The
relevance that is necessary to support a subpoena for the investigation of an
individual charge is relevance to the contested issues that must be decided to
resolve that charge, not relevance to issues that may be contested when and if
future charges are brought by others. Because RCCL has admitted that the reason
7
Case: 13-13519 Date Filed: 11/06/2014 Page: 8 of 13
that it refused to renew Mr. Morabito’s contract is his medical condition, whether it
refused to renew other employee’s contracts for the same reason is irrelevant to his
charge. That issue is settled. Although eradicating unlawful discrimination and
protecting other as-yet undiscovered victims are laudatory goals and within the
Commission’s broad mandate, the EEOC must still make the necessary showing of
relevancy in attempting to enforce its subpoena. We agree with the magistrate
judge and the district court that the broad company-wide information sought by the
EEOC here has not been demonstrated to be relevant to the only contested issues
that remain from those that arose as a result of the individual charge brought by
Mr. Morabito.
Even if the information sought has some tenuous relevance to the
charge filed by Mr. Morabito, we find no error in the district court’s holding
that compliance with the subpoena would be unduly burdensome to RCCL.
As explained, the information sought by the EEOC is at best tangentially
relevant to Mr. Morabito’s individual charge of discrimination. The only
issues in dispute regarding Mr. Morabito’s individual charge are whether the
EEOC has jurisdiction over his claim, as he is a foreign national who was
employed on a foreign-flagged ship, and whether the BMA standards
provide a valid justification for RCCL’s employment decision. RCCL
already has provided the EEOC with information regarding its corporate
8
Case: 13-13519 Date Filed: 11/06/2014 Page: 9 of 13
structure, its hiring and firing practices, the BMA standards, and the
circumstances surrounding Mr. Morabito’s termination. The EEOC failed to
present a cogent argument as to how the additional information sought,
which pertains to employees and applicants from around the world suffering
from any medical condition, in the light of the information the EEOC
already possesses, would further aid the Commission in resolving the issues
in dispute regarding Mr. Morabito’s charge.
To the extent that the EEOC desires this information so that it may
advocate on behalf of other potential victims of employment discrimination,
the need for the subpoenaed information is relatively low. The Commission
has the ability to file a Commissioner’s charge alleging a pattern and
practice of discrimination that could support a request for that information.
See 42 U.S.C. § 2000e-5(b) (2012) (providing that a discrimination charge
may be filed “by or on behalf of a person claiming to be aggrieved, or by a
member of the Commission”). In any case, the EEOC may not enforce a
subpoena in the investigation of an individual charge merely as an expedient
bypass of the mechanisms required to file a Commissioner’s charge.
In contrast to the limited need for the subpoenaed information to
resolve Mr. Morabito’s claim, the burden on RCCL in complying with the
subpoena would be significant. RCCL would be required to manually
9
Case: 13-13519 Date Filed: 11/06/2014 Page: 10 of 13
review and cross-reference paper documents relating to thousands of former
employees. Additionally, RCCL would be required to collect records from
independent hiring partners concerning thousands of applicants who were
not hired. To supply the information sought, RCCL estimated that it would
need to divert five to seven employees from their usual tasks for forty hours
a week for two months. As the EEOC has little, if any, need for the
requested information to resolve Mr. Morabito’s charge, this burden is
unwarranted.
Moreover, RCCL has raised a legitimate question regarding whether
the EEOC has jurisdiction over the claims of foreign nationals on foreign-
flagged ships, like Mr. Morabito, when doing so likely would interfere with
the internal order of the vessels. See Spector v. Norwegian Cruise Line Ltd.,
545 U.S. 119, 125 (2005) (“Our cases hold that a clear statement of
congressional intent is necessary before a general statutory requirement can
interfere with matters that concern a foreign-flag vessel’s internal affairs and
operations . . . .”); Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 888 & n.10
(11th Cir. 2013) (holding that the Labor Management Relations Act and
National Labor Relations Act do not apply to wage disputes between
foreign-flagged ship and its foreign crew, even when ship enters U.S.
waters). Although we need not decide at this time whether the EEOC lacks
10
Case: 13-13519 Date Filed: 11/06/2014 Page: 11 of 13
jurisdiction over claims of foreign nationals employed on foreign-flagged
ships, see EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922–23 (11th Cir.
1991), the district court was justified in considering this potential
jurisdictional hurdle in weighing the potential benefits and hardships of
enforcing the EEOC’s wide-ranging subpoena in this case.
In an attempt to challenge the district court’s analysis, the EEOC cites
cases from other Courts of Appeals that suggest that a party seeking to avoid
enforcement of an EEOC administrative subpoena must show that
compliance would interfere with its normal business operations. See
Appellant’s Br. 43–44 (citing EEOC v. Bay Shipbuilding Corp., 668 F.2d
304, 313 (7th Cir. 1981); EEOC v. Citicorp Diners Club, Inc., 985 F.2d
1036, 1040 (10th Cir.1993); EEOC v. Randstad, 685 F.3d 433, 452 (4th Cir.
2012)). According to the EEOC, RCCL has not even attempted to show that
devoting five to seven employees for two months would disrupt its normal
business operations when RCCL employs over 50,000 people and is a multi-
billion dollar business.
We reject such a rigid rule in the burdensomeness analysis. The court
in Packard stated that a district court is authorized to “weigh such equitable
criteria as reasonableness and oppressiveness” and that “this rubric impl[ies]
a balancing of hardships and benefits.” 569 F.2d at 318. The use of
11
Case: 13-13519 Date Filed: 11/06/2014 Page: 12 of 13
“such . . . criteria” and the plural of “hardship” and “benefit” clearly
indicates that a district court may consider a number of factors in this
analysis, rather than requiring specific types of evidence on a single factor.
See also United Air Lines, 287 F.3d at 653 (noting that cases such as Bay
Shipbuilding have suggested a party must show that compliance would
threaten normal business operations but explaining “that scenario is more
illustrative than categorical” and “[w]hat is unduly burdensome depends on
the particular facts of each case and no hard and fast rule can be applied to
resolve the question” (internal quotation marks omitted)); EEOC v. Ford
Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994) (“Essentially, this court’s
task is to weigh the likely relevance of the requested material to the
investigation against the burden to Ford of producing the material.”).
We conclude that the district court’s weighing of the burden to RCCL,
which certainly was not trivial, and the likely irrelevance of the information
to Mr. Morabito’s charge was not an abuse of discretion, especially in the
light of the jurisdictional issues raised by RCCL. 5
5
We decline the EEOC’s invitation to modify the scope of the subpoena. First, the possibility of
modification was not presented to the district court in the objections to the magistrate judge’s
report and recommendation. Additionally, under the EEOC’s proposed modification, RCCL
would still be required to supply information regarding all applicants who were denied
employment because of a medical condiction and all terminated employees who had worked on
ships that entered U.S. waters. It is unclear how much this modification would reduce the
burden on RCCL in reviewing the documents necessary to compile that information, and the
relevancy and jurisdictional issues described above remain.
12
Case: 13-13519 Date Filed: 11/06/2014 Page: 13 of 13
CONCLUSION
For the foregoing reasons, the district court’s denial of the EEOC’s
application to enforce the administrative subpoena is
AFFIRMED.
13