               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.
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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.
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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.
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      (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
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“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).
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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


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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


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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


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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


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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


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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


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“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.
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                              CONCLUSION

      For the foregoing reasons, the district court’s denial of the EEOC’s

application to enforce the administrative subpoena is

      AFFIRMED.




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