___________________________________________________ No. 10-11014 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. BUFFALO ROCK CORP., Respondent-Appellee. ____________________________________________________ On Appeal from the United States District Court for the Northern District of Alabama ____________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 202-663-4737 TABLE OF CONTENTS TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF RECORD REFERENCES IN THE BRIEF. . . . . . . . . . . . . . . . . . . . . .iv ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF SERVICE TABLE OF CITATIONS FEDERAL CASES In re Alexander Grant & Co. Litigation, 820 F.2d 352 (11th Cir. 1987). . . . . . 12 Arthur v. King, 500 F.3d 1335 (11th Cir. 2007). . . . . . . . . . . . . . . . . . 15 Branch v. Phillips Petroleum Co., 638 F.2d 873 (5th Cir. Unit A Mar.1981). . . . 3 Brown v. Latin American Music Co., 498 F.3d 18 (1st Cir. 2007). . . . . . . . . . 16 Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986). . . . . . . . . . 12 EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601 (S.D. Ind. 2001). . . . . . 12-13 * EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S. Ct. 817 (1981). . . . . . . . . . . . 8-10, 16 EEOC v. C & P Telegraph Co., 813 F. Supp. 874 (D.D.C. 1993). . . . . . . . . . 12-13 EEOC v. Kloster Cruise Ltd., 939 F.2d 920 (11th Cir. 1991). . . . . . . . . . . . 14 EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146 (S.D.N.Y. 2000). . . . . . . . 13 EEOC v. Tire Kingdom, Inc., 80 F.3d 449 (11th Cir. 1996). . . . . . . . . . . . 14 FCC v. Schreiber, 381 U.S. 279, 85 S. Ct. 1459 (1965). . . . . . . . . . . . 13-14 FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977). . . . . . . . . . . . . . 13-15 Gagliano v. Reliance Standard Life Insurance Co., 547 F.3d 230 (4th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . 16 FEDERAL STATUTES 42 U.S.C. § 2000e-8(e), § 709(e) of Title VII. . . . . . . . . . . . . . 3-4, 16-17 MISCELLANEOUS I EEOC Compliance Manual § 24.7. . . . . . . . . . . . . . . . . . . . . . . . . . 7 I EEOC Compliance Manual § 83.1. . . . . . . . . . . . . . . . . . . . . . . . . . 4 TABLE OF RECORD REFERENCES IN THE BRIEF Brief Page # Docket # 2, 9-12 Order enforcing subpoena and entering protective order. . . . . . . . . . 7 5 EEOC decl., att. 7: Resp. 7/14/09 letter to EEOC. . . . . . . . . . . . 3-7 6 EEOC decl., att. 4: EEOC 5/20/09 request for information. . . . . . . . . . . . . . . . . . 3-4 6 EEOC decl., att. 7: Tables of compensation information Sealed exhibit 7 EEOC decl., att. 8: EEOC 7/30/09 subpoena. . . . . . . . . . . . . . . . 3-8 7 EEOC decl., att. 9: 7/30/09 certified-mail receipt. . . . . . . . . . . 3-9 17 EEOC brief for motion for reconsideration. . . . . . . . . . . . . . . . 10 ARGUMENT In our opening brief we argued that the district court abused its discretion by entering a sweeping protective order in this subpoena enforcement action providing the court with ongoing oversight of the Commission's administrative proceedings on charges of race discrimination by Buffalo Rock. We noted that courts enter protective orders in EEOC subpoena enforcement proceedings only in rare circumstances, because the relevant statute and regulations already impose a strict regime of confidentiality, and argued that the district court failed to provide a justification for imposing a protective order in this case. We also argued that the court compounded its error by including in its order provisions that will impede the Commission's investigation of the underlying charges of discrimination. Buffalo Rock has responded primarily by defending a different order, much more limited than the one actually entered by the district court. It presents no argument supporting the sweeping order at issue on this appeal. 1. Buffalo Rock responds to our opening brief primarily by distorting the relevant facts and misinterpreting their legal significance. First and most important, the company substantially misrepresents the protective order that is the subject of this appeal. The company repeatedly claims that the order applies solely to the compensation information that Buffalo Rock produced in response to the Commission's subpoena. At the outset of its brief, the company characterizes the district court's order as "providing for the confidentiality of compensation information produced in response to the subpoena." Br. at 2. In seeking to distinguish decisions cited by the EEOC, the company insists that this case is different because here "the confidential information has already been identified- the employment and compensation data of Buffalo Rock drivers." Br. at 25; see also br. at 26 (other cases also inapposite because here "the confidential documents have already been identified"). These claims that the order is limited to the compensation information produced in response to the subpoena are simply false. The order authorizes Buffalo Rock to designate as confidential "all documents . . . produced by [Buffalo Rock] to the [EEOC]" that the company deems to contain "confidential information or employment records." R-7 at 2. The order further expressly authorizes the company to designate as confidential documents it produced before the subpoena was issued. R-7 at 4 ("Buffalo Rock may notify the EEOC that documents that should have been designated as CONFIDENTIAL INFORMATION under the terms of this Order were inadvertently produced without being designated as such. Upon receiving such notice from Buffalo Rock, the EEOC shall immediately treat the document as if it has been so designated . . . .") . Accordingly, the company's description of the court's order, which the company itself drafted, is disingenuous, at best. Notwithstanding Buffalo Rock's belated attempts to revise the order, this appeal concerns the propriety of a sweeping order applying to "all documents" provided to the Commission during its investigation. 2. In seeking to justify the imposition of a protective order, Buffalo Rock argues, as it did in district court, that the EEOC violated § 709(e) by attaching "confidential information" to its petition to enforce a subpoena. Br. at 9-10 (EEOC improperly "filed" the three compensation tables "on PACER, for the whole word to see"). This argument is based on a misunderstanding of § 709(e), which prohibits EEOC employees from making public "any information obtained by the Commission [during an investigation] prior to the institution of any proceeding under this subchapter involving such information." 42 U.S.C. § 2000e- 8(e). Contrary to the implication in the company's brief, this provision is not designed to protect "confidential information." Rather it prohibits disclosure of any information, confidential or not, relating to a charge. It is designed to provide an incentive to a respondent named in a charge to cooperate with the EEOC's investigation and to attempt to resolve disputes voluntarily by creating the possibility that an employer can avoid public disclosure of the fact that it was charged with discrimination by resolving the matter informally. Cf. Branch v. Phillips Petroleum Co., 638 F.2d 873, 880-81 (5th Cir. Unit A Mar. 1981) (Congress favored "unlitigated resolution of employment discrimination claims," and § 706(b)'s bar on disclosing statements made during conciliation is designed to further that purpose). As we pointed out in our opening brief, however, this protection ends once "any proceeding" is instituted under Title VII. EEOC br. at 17-18, 19 n.3. In response, the company argues that this subpoena enforcement proceeding is not a "proceeding" within the meaning of § 709(e). The only support offered for this argument is a quote from the EEOC's Compliance Manual that uses the word "lawsuit" instead of "proceeding." See BR br. at 10 (citing I EEOC Compliance Manual § 83.1). From this single word, the company deduces that it is the EEOC's position that § 709(e) applies even after a subpoena enforcement proceeding has been instituted. This makes no sense. As noted, § 709(e) prohibits disclosure of any information, including the fact that a charge has been filed against a particular employer. A petition to enforce a subpoena, such as the one filed in this case, necessarily discloses that a charge has been filed against the respondent and describes the allegations of the charge to show the relevance of the information requested in the subpoena. If § 709(e) applied, all subpoena enforcement proceedings would have to be conducted in secret. As the company is aware, however, they are not. Accordingly, it is clear that § 709(e) does not support the company's argument that the Commission acted improperly in attaching the compensation tables to its petition to enforce its subpoena. The company offers no other basis for its repeated assertions of impropriety. As we noted in our opening brief, the appropriate recourse where allegedly confidential information has been placed in a court record is to request to seal the record. Buffalo Rock promptly did that, and the EEOC, without conceding that a seal was necessary, did not oppose the request. Once the district court granted the motion and sealed the attachment to the EEOC's petition, no other relief was warranted. 3. The company also distorts the record in two ways to support its inference that the Commission engaged in "abusive behavior." BR br. at 10. First, the company implies that the EEOC's decision to file a subpoena enforcement action was gratuitous because the company responded to the agency's request for information in July and assured the agency, within days of learning about the subpoena in November, that it planned to comply. Br. at 3-4, 13. However, the facts are to the contrary. The Commission requested detailed compensation information in May, and the company was aware at the time that it did not give the EEOC the information it had requested. In fact, Buffalo Rock itself characterized its response as a "compromise." R-3-7 at 1. In any event, a comparison of the Commission's document request asking for detailed compensation information for each driver, broken down into base pay, commissions and bonuses, with the company's response disclosing only the total amount received by each driver it listed, with no breakdown showing base pay, commissions and bonuses, belies any notion that the company thought it had complied with the request. Compare R-3-4 at 1-2 with Sealed Exhibit.<1> After receiving the company's manifestly incomplete response to its request for information, the Commission issued its subpoena in July and the company received it, but failed-for months-to respond in any way. Under these circumstances, the Commission's decision to file a petition to enforce the subpoena in November was patently reasonable. Moreover, the company's assurances that it planned to comply with the subpoena were not conveyed until December-after the EEOC had already filed this subpoena enforcement proceeding-and thus they could hardly have affected the agency's decision to file it. Notwithstanding this evidence, the company implies that it had no basis for knowing that the Commission was dissatisfied with its response to the document request-or even that the agency had issued a subpoena for the same information-until the district court issued its order to show cause at the end of November. Br. at 3. Buffalo Rock twice states that the EEOC failed to serve its July 2009 subpoena properly on the company. Br. at 3 (subpoena "was not served on appropriate personnel at Buffalo Rock"), 13 (company "was not properly served with it"). But the subpoena was addressed to the company's president and CEO and delivered to the company's business address. R-3-8 at 1. The Commission used certified mail, and a person named Donna Smith acknowledged receipt on July 31. R-3-9. Thus the company received a government subpoena addressed to its president and CEO.<2> Buffalo Rock simply ignores these facts and baldly asserts lack of proper service. Second, the company greatly exaggerates the practical impact of the filing. All the Commission did was file the tables with the court. While this may in theory have allowed "the world" to see the tables, millions of documents are available on PACER, and people have no reason to download a particular document unless they first learn that a document of interest to them is posted there. Buffalo Rock points to no evidence that the EEOC drew the public's attention to the proceeding or the filing, or that any of the company's employees or competitors learned about the tables and downloaded them. Indeed, counsel stress that they did not become aware of the filing themselves until they learned about the court's November 30 order. Br. at 3. 4. As we pointed out in our opening brief, the district court's order imposes sweeping restrictions on the EEOC's use of any information Buffalo Rock chooses to designate as confidential unless it can obtain court approval. We argued that these restrictions will interfere with the agency's ability to investigate the charges and attempt to resolve them informally. EEOC br. at 20-23, 25. Rather than respond to this argument, the company states repeatedly that the order protects only the compensation information requested in the subpoena. BR Br. at 25-26. The company then argues that this redefined order was justified and will not impede the EEOC's investigation. These attempts to narrow the scope of the order are unavailing, particularly as they come from the party that drafted it. The protective order will hinder in several significant ways the EEOC's attempts to investigate and resolve the charges. See EEOC br. at 20-23, 25. The charging parties, and their co-workers, are principal sources of information in Commission investigations. As the Supreme Court has recognized, one of the most efficient means of investigating charges is to let the charging parties know the respondent's response to the allegations in their charges and seek their reactions to that response. EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 600-01, 101 S. Ct. 817, 823 (1981) ("[L]imited disclosure to the parties can speed the Commission's required investigation: the Commission can more readily obtain information informally . . . if it can present the parties with specific facts for them to corroborate or rebut."). The protective order, however, cuts off many of those lines of inquiry because it bars Commission investigators-unless they first secure written consent from Buffalo Rock or a court order-from disclosing to the charging parties any information that Buffalo Rock has designated confidential, including the base pay, commissions, and bonuses received by the charging parties' similarly situated white co-workers. The order authorizes disclosure of "confidential information" (i.e., any information that Buffalo Rock designates as confidential, R-7 at 2) only to the court and its staff, the parties' attorneys and their staff and retained consultants and experts, and "the person who is the subject of the information." R-7 at 2-3. Commission investigators subject to this order are not free to share with a charging party salary data for his similarly situated white co-workers, because that charging party is not the subject of that information.<3> This inability to disclose relevant factual allegations to the charging parties will hamper not only the EEOC's attempts to investigate the charges; it will also hamper the agency's attempts to resolve the charges in conciliation. A charging party who is not told the relevant facts is unable to assess the value of his claim and may therefore refuse to settle his claim for an offer of relief that, had he known the facts, would have appeared reasonable. Associated Dry Goods, 449 U.S. at 601, 101 S. Ct. at 823-24 ("A party is far more likely to settle when he has enough information to be able to assess the strengths and weaknesses of his opponent's case as well as his own."). The order permits disclosure to the parties' attorneys, R-7 at 3, but that provision will normally not remove the burden on the investigation imposed by the provision barring disclosure to the charging parties. First, many charging parties are not represented by counsel and do not have counsel present with them when a Commission investigator is seeking information from them. There is, for example, no evidence that the charging parties in this case have been represented by counsel while the investigation has proceeded. Second, the investigator's goal is to gather information relevant to the charges and such information is more readily and appropriately acquired from the charging parties, who are often fact witnesses, than from their lawyers. The protective order burdens the EEOC's investigation further by barring disclosure of relevant factual allegations to any potential witness who is unwilling to agree to be bound by the protective order. R-7 at 3,¶ 4. Employees who depend on the respondent for a livelihood, who suspect unlawful discrimination, and who anticipate possibly suing the respondent may well be unwilling to subscribe to the protective order, especially if they are not represented by counsel when asked to do so. The order also authorizes Buffalo Rock to designate as confidential any documents it deems to contain "confidential information or employment records," R-7 at 2,¶ 1, and empowers the company to impose such designations retroactively, that is, on documents that Buffalo Rock produced earlier without having then designated them as confidential. R-7 at 4,¶ 6. Buffalo Rock attempts to minimize this burden by suggesting that the only information that it plans to designate as confidential in connection with this investigation is "the employment and compensation data of Buffalo Rock drivers," br. at 25, but the protective order is not so restricted. It is not limited to the information that the company produces in response to this subpoena. On the contrary, the order allows Buffalo Rock to exercise significant power over the EEOC's investigation by controlling the information that the agency's investigators are allowed to disclose to the charging parties and other witnesses. Finally, the protective order suggests that, if the Commission wants to challenge Buffalo Rock's designation of a document as confidential or to seek an exception from any of the order's provisions, the agency will bear the burden of proving that the designation should be changed or the exception granted. The order states that if the EEOC disagrees with Buffalo Rock's designation of a particular document as confidential, the agency must "appl[y] to the court." R-7 at 2,¶ 1. Similarly, if the Commission believes it is necessary to disclose confidential information to a person not already authorized to receive it, the agency "must seek approval of the court," R-7 at 4,¶ 7, implying that the agency would bear the burden of proving that the disclosure is "necessary." But, as Buffalo Rock concedes, br. at 24-25, this Court and other courts have held that when the parties to a case disagree about whether a particular document or category of documents should be treated as confidential, the party seeking the confidential treatment bears the burden of proving that good cause warrants that treatment-even if the parties had earlier agreed to an umbrella protective order, which they did not do here. See In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11th Cir. 1987) ("the burden of proof justifying the need for the protective order remains on the movant"); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) ("the burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the protective order; any other conclusion would turn Rule 26(c) on its head"). 5. Buffalo Rock has not cited a single subpoena-enforcement case imposing a protective order comparable to the one issued in this case. Instead, the company urges this Court to affirm the order by relying on cases that are distinguishable and ignoring cases that are relevant. For example, Buffalo Rock relies principally on EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601 (S.D. Ind. 2001), and EEOC v. C & P Tel. Co., 813 F. Supp. 874 (D.D.C. 1993), br. at 11-12, 15, but fails to acknowledge that those courts granted protective orders only because disclosure to the charging parties, which is ordinarily permitted, threatened to totally destroy the substantial economic value of a validated employment test. C & P Tel., 813 F. Supp. at 876 ("the test would, in effect, be destroyed"). The Aon Consulting court conceded that Commission disclosure to charging parties of confidential information received from the respondent is the rule and that protective orders in EEOC subpoena enforcement proceedings "should be rare and limited to extraordinarily sensitive information." 149 F. Supp. 2d at 608. Buffalo Rock fails to show that the co-worker salary data at stake here fits into this narrow exception. Buffalo Rock also seeks to distinguish EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146 (S.D.N.Y. 2000), br. at 15, but that court addressed directly one of the core issues at stake here when it ruled that a court enforcing an EEOC subpoena should only rarely bar the agency from disclosing the subpoenaed information to the charging parties. Id. at 156 (a district court has discretion "to enter a protective order in extraordinary circumstances, . . . [but] disclosure [to the charging parties] should be the norm"). The EEOC cited FCC v. Schreiber, 381 U.S. 279, 290-96, 85 S. Ct. 1459, 1467-70 (1965), and FTC v. Texaco, Inc., 555 F.2d 862, 883-85 (D.C. Cir. 1977), for the proposition that when a federal agency is conducting an authorized investigation, a court should not disregard the agency's rules and orders governing confidentiality, impose a broad protective order, and require the agency to establish good cause for any exceptions. EEOC br. at 23. Buffalo Rock contends that Schreiber is inapposite because "the protective order in this case is consistent with the EEOC's confidentiality framework and does not impair the Commission's investigation in any way." BR br. at 26. But Schreiber is relevant here precisely because the district court's protective order violates the EEOC's normal confidentiality regime, which allows disclosure to the charging parties, and because the order will interfere significantly with the Commission's investigation, as discussed supra. Similarly, Buffalo Rock maintains that Texaco supports the company's position because that court allowed the subpoena recipients to designate documents as confidential and ordered the agency to give the companies ten days' notice before disclosing those documents. Br. at 26-27. But the Texaco court reversed a district court protective order that, like the order here, gave the companies' designations legal effect and required the agency to seek court approval for any disclosures. Texaco, 555 F.2d at 883-85. Buffalo Rock criticizes the EEOC for relying on EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991), for the proposition that the district court's role in a subpoena enforcement proceeding is "sharply limited." Br. at 13-14. Kloster Cruise did not address protective orders, but this Court's emphasis in Kloster Cruise and in EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 450 (11th Cir. 1996), on the limited nature of a subpoena enforcement proceeding dovetails with one of the explanations courts have given for denying protective orders in subpoena enforcement proceedings absent extraordinary circumstances: A subpoena enforcement action is a limited judicial proceeding ancillary to an administrative investigation. It therefore does not give the district court jurisdiction to oversee the agency's conduct of the investigation. A protective order is inconsistent with this scheme insofar as it creates continuing district court jurisdiction over complaints by the respondent that the agency is violating the protective order in conducting its investigation. See, e.g., Texaco, 555 F.2d at 884 (challenged protective order "would unquestionably place the court in a position of supervision and control over the [FTC] in the exercise of its statutory duties"). 6. The company argues that the district court had the discretion to disregard legal arguments raised for the first time in the EEOC's motion to reconsider. Br. at 19-21, citing Arthur v. King, 500 F.3d 1335 (11th Cir. 2007), et al. The company implies that since the district court had discretion to disregard new arguments, the court's decision denying the Commission's motion could not possibly be an abuse of discretion even if the court chose to address the new arguments and resolved them incorrectly. Br. at 20 ("Because this was an entirely new argument that could have been raised [earlier], the District Court could not have abused its discretion in rejecting this argument."). This contention is erroneous. The district court here exercised its discretion to address the arguments raised in the EEOC's motion, perhaps in part because it believed that the agency had been given only a limited opportunity to raise them earlier, and the court's decision denying the motion rested on its analysis of those arguments. In these circumstances, this Court is free to review the district court's legal analysis using its normal de novo standard. See, e.g., Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 241 n.8 (4th Cir. 2008) (reviewing legal analysis district court employed in ruling on motion to reconsider); Brown v. Latin Am. Music Co., 498 F.3d 18, 25 (1st Cir. 2007) (reviewing legal reasoning district court employed in denying motion to reconsider). 7. In addition to denying the burdens that the protective order imposes on the EEOC's investigation, Buffalo Rock also exaggerates the threat that Commission staff will publicly disclose information that the company deems confidential. As the Supreme Court noted when denying the protective order that the employer sought in Associated Dry Goods, § 709(e) protects respondents that have provided information to the EEOC against disclosure of that information to the general public (even though it does not protect them against disclosure of that information to the charging parties). 449 U.S. at 596-98, 101 S. Ct. at 821-22. Buffalo Rock stresses that the Commission argued in the district court that salary data should not be deemed confidential and suggests that the company therefore legitimately feared that agency staff would disclose such data publicly. Br. at 16- 19. But the EEOC's arguments about the confidentiality of salary data focused on the propriety of the agency's decision to file the compensation tables in the subpoena enforcement proceeding and of Buffalo Rock's request that such information be withheld from the charging parties. R-10 at 15-16 (propriety of filing the tables), 17-18 (propriety of disclosure to charging parties). Those arguments were and are irrelevant to whether Commission staff would disclose such information outside the context of a subpoena enforcement proceeding or to persons other than the charging parties, because § 709(e) forbids the agency from disclosing publicly "any information" it receives during an investigation, not just the confidential information it receives. Accordingly, § 709(e) bars the EEOC from disclosing publicly the information it has received from Buffalo Rock whether the agency deems the information confidential or not. CONCLUSION For the reasons stated in our opening brief and in this brief, the Commission respectfully asks this Court to vacate the district court's protective order. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel s/ Paul D. Ramshaw PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,092 words (as counted by Microsoft Word 2003), excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). The brief complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Word 2003 in Times New Roman 14-point type, a proportionally spaced typeface. s/ Paul D. Ramshaw Paul D. Ramshaw July 12, 2010 CERTIFICATE OF SERVICE I certify that one copy of this brief has been served today by first-class mail to: John W. Sheffield Johnston Barton Proctor & Rose, LLP Colonial Brookwood Center 569 Brookwood Village, Ste. 901 Birmingham, AL 35209 s/ Paul D. Ramshaw Paul D. Ramshaw July 12, 2010 *********************************************************************** <> <1> In addition, the company gave this information for only those drivers who worked as drivers for the whole calendar year. R-3-7 at 1. <2> sCounsel state that they received no contemporary copy of the subpoena. Br. at 3-4. It is the EEOC's normal practice to mail a copy to counsel. I EEOC Compliance Manual § 24.7. If the agency failed to do that here, the omission is regrettable, but it did not invalidate the otherwise proper service on the company's chief executive officer. <3> The order places the same restriction on EEOC attempts to interview other witnesses, such as the charging parties' co-workers.