Filed: Mar. 25, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1687 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. PROPAK LOGISTICS, INC., Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cv-00311-MR-DLH) Argued: January 28, 2014 Decided: March 25, 2014 Before WILKINSON, KEENAN, and DIAZ, Circuit Judges. Affirmed by published opinion. Judge Keenan wro
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1687 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. PROPAK LOGISTICS, INC., Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cv-00311-MR-DLH) Argued: January 28, 2014 Decided: March 25, 2014 Before WILKINSON, KEENAN, and DIAZ, Circuit Judges. Affirmed by published opinion. Judge Keenan wrot..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1687
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
v.
PROPAK LOGISTICS, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cv-00311-MR-DLH)
Argued: January 28, 2014 Decided: March 25, 2014
Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson
wrote a separate concurring opinion.
ARGUED: Susan Ruth Oxford, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. John Doughty Cole,
Sr., NEXSEN PRUET, PLLC, Charlotte, North Carolina, for
Appellee. ON BRIEF: P. David Lopez, Lorraine C. Davis, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Appellant.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
abused its discretion in ordering that the Equal Employment
Opportunity Commission (EEOC) pay attorneys’ fees to a
prevailing defendant employer after the court awarded summary
judgment to the employer in an action brought by the EEOC. In
awarding attorneys’ fees, the district court concluded that the
EEOC acted unreasonably in filing the employment discrimination
complaint, because events that occurred during the EEOC’s
administrative investigation precluded the EEOC from obtaining
either injunctive or monetary judicial relief. Upon our review,
we affirm the district court’s judgment.
I.
In January 2003, Michael Quintois filed a charge of
discrimination with the EEOC against his former employer, Propak
Logistics, Inc. (Propak), a provider of commercial warehousing,
transportation, packaging, and shipping services. Quintois was
a supervisor at Propak’s Shelby, North Carolina facility, and
alleged that Propak terminated his employment based on his
“American” national origin after he complained that the company
hired only Hispanic workers for certain supervisory positions.
The EEOC notified Propak of the discrimination charge arising
under Title VII of the Civil Rights Act of 1964 (Title VII).
2
Based on Quintois’ discrimination charge, the EEOC
initiated an investigation of Propak that lasted nearly six
years. This investigation included extensive periods of delay
and inactivity.
Although Propak responded to the charge in May 2003, the
EEOC did not interview Quintois concerning Propak’s response
until May 2004. The EEOC also delayed until April 2004 its
interview of Kathy Ponder, a Propak manager responsible for
hiring decisions at the Shelby, North Carolina facility.
In September 2004, the EEOC designated the matter as a
“class case.” However, as the district court later found,
Propak did not receive notice of this procedural decision until
about four years later in September 2008. 1
Although the EEOC scheduled and conducted two witness
interviews between October 2004 and March 2005, little other
investigative activity occurred during this period. The record
also shows that the EEOC did not contact Propak for about two
years, between June 6, 2005 and June 7, 2007. In June 2007, the
EEOC contacted Propak to speak with Ponder, but was unable to
interview her because she had left her job and her whereabouts
were unknown.
1
The United States Department of Justice also conducted an
investigation of Propak based on Quintois’ allegations. That
investigation, which lasted about one year, ended in November
2005 without any charges being brought.
3
During the course of the EEOC’s inquiry, Quintois requested
a “right to sue” authorization. 2 After the EEOC granted
Quintois’ request, Quintois filed a lawsuit against Propak in
March 2008, which was dismissed about four months later upon
agreement of the parties.
In September 2008, the EEOC concluded its investigation of
Propak and issued a “determination letter.” The EEOC stated
that it had found reason to conclude that Propak violated Title
VII by failing to hire a class of non-Hispanic job applicants
because of their race or national origin. In the letter, the
EEOC also invited Propak to participate in informal conciliation
to resolve the matter pursuant to the EEOC’s statutory mandate
to engage in such efforts. 3 See 42 U.S.C. § 2000e–5(b).
In attempting to conciliate the matter, the EEOC proposed
certain remedial measures concerning Propak’s facilities in
North Carolina and South Carolina. These measures would have
required Propak in these locations to offer certain employment
opportunities, to provide training for supervisors and managers,
2
The EEOC’s issuance of a “right to sue” letter allows an
individual to initiate a private Title VII lawsuit in federal
court. Davis v. N.C. Dep’t of Corr., 48 F.3d 134, 138 (4th Cir.
1995).
3
Conciliation is one of the EEOC’s “most essential
functions” and, under our precedent, the EEOC is required to
engage in a “good faith attempt at conciliation” before it may
file a complaint in a federal court. EEOC v. Radiator Specialty
Co., 610 F.2d 178, 183 (4th Cir. 1979).
4
and to post certain notices. By this time, however, Propak had
closed all its facilities in those states, thereby rendering it
impossible for Propak to implement such remedial measures. 4
Propak advised the EEOC of this fact about one month later.
The EEOC nevertheless initiated a lawsuit in the district
court against Propak in August 2009, more than six and one-half
years after Quintois filed his discrimination charge. The EEOC
alleged in its complaint that between October 2002 and June
2004, Propak violated Title VII by refusing to hire, on the
basis of national origin, a class of non-Hispanic individuals at
the Shelby, North Carolina facility. The EEOC sought certain
injunctive relief, including an order requiring that Propak
institute policies and programs to benefit non-Hispanic persons
in order to mitigate the effects of the allegedly unlawful
employment practices. The EEOC also sought monetary relief on
behalf of the affected class of non-Hispanic employment
applicants.
Propak filed a motion to dismiss arguing, among other
things, that the action should be barred under the doctrine of
laches. 5 The district court denied the motion without prejudice
4
The parties do not argue, and the record does not suggest,
that Propak’s decision to close its facilities in North Carolina
and South Carolina was influenced by the EEOC’s investigation.
5
The equitable defense of laches requires that a defendant
(Continued)
5
with respect to Propak’s laches defense, and ordered the parties
to engage in discovery limited to the issue whether Propak had
suffered prejudice resulting from the EEOC’s extensive delay in
initiating the litigation.
At the conclusion of this discovery period, Propak filed a
motion for summary judgment, again asserting the defense of
laches. The district court granted Propak’s motion, concluding
that the EEOC’s delay in initiating the lawsuit was
“unreasonable.” In reaching this conclusion, the court
emphasized the fact that during the investigation, “there were
significant periods when the EEOC took little or no action
toward completing the investigation.”
The district court held that Propak suffered prejudice
resulting from the EEOC’s “unreasonable delay.” The court
observed that certain important witnesses, including the site
managers for the Shelby facility during the relevant time
period, were no longer employed by Propak and that “locating
them would be difficult, if not impossible.” The court also
stated that even if such witnesses ultimately could be located,
they likely would have “faded memories” of the time period at
prove “(1) lack of diligence by the party against whom the
defense is asserted, and (2) prejudice to the party asserting
the defense.” EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 409
(4th Cir. 2005) (citation and internal quotation marks omitted).
6
issue, which was more than five years before the complaint was
filed.
The court noted that the EEOC’s delay caused Propak
additional prejudice, because Propak routinely had destroyed
personnel records three years after an individual no longer was
employed by the company. Thus, Propak destroyed the records of
employees who left the company between 2002 and 2004 before
being notified in September 2008 that the EEOC was pursuing the
matter on a class basis. 6 The court specifically rejected the
EEOC’s argument that it had notified Propak of the class
designation at an earlier date, observing that the record did
not support the EEOC’s assertion. Although the court also noted
the EEOC’s failure to identify purported victims and the
unavailability of injunctive relief, the court primarily
emphasized Propak’s inability to produce key witnesses and the
destruction of documents essential to Propak’s defense.
After the district court entered its judgment in favor of
Propak, the EEOC timely filed a notice of appeal. The EEOC
later sought dismissal of the appeal, which this Court ordered
upon the agreed motion of the parties.
6
The parties dispute on appeal whether Propak acted
unlawfully in failing to preserve its records. We need not
resolve this issue because it is not material to our analysis of
the district court’s decision to award Propak attorneys’ fees.
7
The district court later considered Propak’s motion seeking
attorneys’ fees in the amount of $192,602.95, which were
incurred by Propak after the EEOC filed the complaint. The
district court granted the motion, and awarded Propak nearly the
full amount requested. Relying on the Supreme Court’s holding
in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the
district court concluded that an award of attorneys’ fees was
appropriate because the EEOC knew or should have known that its
claim “was frivolous, unreasonable, or groundless.”
Id. at 422.
The district court held that the EEOC acted “unreasonably”
in filing the complaint, and alternatively held that the EEOC
acted “unreasonably” in continuing the litigation in view of the
developing record. The court stated that the EEOC had acted
unreasonably in filing the complaint because “by the time the
EEOC determined to bring this action it was abundantly clear
that a lawsuit would be moot and thus it was unreasonable to
have filed it.” The court held that injunctive relief was not
available because Propak had closed the Shelby plant and its
other North Carolina facilities, and that an award of monetary
damages was unlikely because the EEOC knew before filing the
complaint that it could not identify the class of alleged
victims.
With respect to the EEOC’s continued pursuit of the
litigation following discovery, the district court alternatively
8
held that such pursuit was unreasonable because “it was again
reaffirmed [during discovery] that purported victims and
witnesses could not be located [and] the facilities were
closed.” The court further concluded that the EEOC unreasonably
continued to pursue the litigation after learning that the
relevant employment records “were no longer in existence.”
Addressing the amount of attorneys’ fees, the district
court analyzed Propak’s request in detail, despite the EEOC’s
failure to contest the amount sought, and ultimately awarded
Propak $189,113.50. 7 The EEOC filed a timely appeal challenging
this award.
II.
The EEOC asks us to hold that federal courts are not
permitted to apply the equitable defense of laches in a lawsuit
brought by an agency of the federal government. Conceding that
it failed to raise this argument in the district court, the EEOC
nevertheless maintains that it would be “unjust” to permit an
7
The district court declined to award Propak an additional
$3,489.45 in attorneys’ fees related to “travel to depositions
and research.” Propak does not appeal from this decision.
Propak also filed in the court a bill of costs pursuant to 28
U.S.C. § 1920, seeking reimbursement of an additional $1,467.33.
The court granted the bill of costs in the amount of $61.20, but
denied the bill with respect to the remaining $1,406.13.
Neither party appeals from the district court’s ruling with
respect to the bill of costs.
9
award of attorneys’ fees incurred in asserting a laches defense.
Alternatively, the EEOC asserts that the district court
impermissibly relied on its earlier laches determination in
awarding attorneys’ fees, and that the court made erroneous
factual findings in deciding its fee award. We disagree with
the EEOC’s arguments.
A.
As a general matter, a litigant must pay its own attorneys’
fees in the absence of a statutory or enforceable contractual
provision allowing attorneys’ fees to be awarded to a prevailing
party. See Christiansburg, 434 U.S. at 415. Title VII provides
such a statutory fee-shifting mechanism, which gives district
courts the discretion to award reasonable attorneys’ fees to a
prevailing party.
Id. at 416. This fee-shifting provision
states:
In any action or proceeding under this subchapter the
court, in its discretion, may allow the prevailing
party, other than the [EEOC] or the United States, a
reasonable attorney’s fee (including expert fees) as
part of the costs, and the [EEOC] and the United
States shall be liable for costs the same as a private
person.
42 U.S.C. § 2000e-5(k).
Although Section 2000e-5(k) does not place different
burdens on plaintiffs and defendants seeking an award of
attorneys’ fees, the Supreme Court explained in Christiansburg
that a heightened standard applies to a prevailing defendant
10
seeking such an award in a Title VII action. 434 U.S. at 417-
22. In contrast to a prevailing private plaintiff, who
generally will be awarded attorneys’ fees under this provision,
a prevailing defendant is eligible to receive such an award only
when the court finds that the plaintiff’s action was “frivolous,
unreasonable, or without foundation.” 8
Id. at 421. However, a
finding of bad faith is not required for a prevailing defendant
to be awarded attorneys’ fees.
Id.
A district court must avoid engaging in “post hoc
reasoning” in considering whether a plaintiff’s action under
Title VII was unreasonable, and an award will not stand if based
only on the plaintiff’s failure to prevail.
Id. at 421-22. An
award of attorneys’ fees to a prevailing defendant is a
“conservative tool, to be used sparingly” in cases in which the
plaintiff initiated or continued to litigate a claim that the
plaintiff “knew or should have known was groundless, frivolous,
or unreasonable.” EEOC v. Great Steaks, Inc.,
667 F.3d 510, 517
(4th Cir. 2012) (citations and internal quotation marks
omitted).
There is neither a precise test to be used, nor a specific
quantum of proof required, in determining whether a plaintiff’s
8
The EEOC does not contest on appeal the district court’s
conclusion that Propak is a prevailing party for purposes of
Section 2000e-5(k).
11
claim was unreasonable. Id. (citing Arnold v. Burger King
Corp.,
719 F.2d 63, 65 (4th Cir. 1983)). Instead, a decision
whether attorneys’ fees should be awarded to a prevailing
defendant under the Christiansburg standard “is peculiarly
within the province of the trial judge, who is on the scene and
able to assess the oftentimes minute considerations which weigh
in the initiation of a legal action.”
Id. (quoting Arnold, 719
F.2d at 65).
We review for an abuse of discretion the district court’s
decision to award attorneys’ fees to Propak under Section 2000e-
5(k). See id. at 516. In light of the principles discussed
above, we accord great deference to the district court’s
conclusion that the EEOC’s actions were unreasonable. See
id.
at 517. Additionally, we review the district court’s factual
findings in support of the fee award for clear error. See
Williams v. Metro. Life Ins. Co.,
609 F.3d 622, 634 (4th Cir.
2010); Daly v. Hill,
790 F.2d 1071, 1079 n.10 (4th Cir. 1986).
B.
As an initial matter, we reject the EEOC’s request that we
consider the issue whether laches is available as an affirmative
defense to an action filed by an agency of the United States.
Although the issue was relevant to the district court’s summary
judgment holding, the EEOC abandoned its appeal of the summary
judgment order. Accordingly, we do not consider the rationale
12
for the court’s laches determination, or the EEOC’s arguments
relating to that decision, in the present appeal.
We turn to consider the EEOC’s argument that the district
court improperly based its decision awarding attorneys’ fees on
the court’s earlier laches ruling. The EEOC asserts that the
district court engaged in “hindsight logic” in explaining its
award of attorneys’ fees by referencing its earlier laches
holding and the prejudicial delay caused by the EEOC. We
disagree with the EEOC’s argument.
In awarding attorneys’ fees under the Christiansburg
standard upon finding that the EEOC unreasonably initiated the
litigation, the district court’s award was not based on the
earlier summary judgment decision. Although the court
referenced its previous findings of delay and prejudice from the
summary judgment holding, and the two decisions set forth many
overlapping facts, the two holdings were based on different
principles of law.
The summary judgment holding of laches was based on the
EEOC’s unjustified delay in bringing the lawsuit, and on the
resulting prejudice affecting Propak’s ability to defend itself
in the action. That decision rested primarily on the
unavailability of key witnesses and documents that Propak needed
to support its defense.
13
In contrast, the district court awarded attorneys’ fees
chiefly on the basis that the EEOC’s lawsuit effectively was
moot at its inception. In reaching this conclusion, the court
emphasized that, when the complaint was filed, the EEOC had
failed to identify the class of victims who could be entitled to
monetary relief, and injunctive relief was unavailable because
Propak had closed its facilities in North Carolina. These
findings, which were central to the court’s conclusion that the
EEOC unreasonably initiated the lawsuit, were not material to
the court’s laches decision articulated on summary judgment.
Thus, the court’s fee award reflected proper consideration of
the Christiansburg standard by assessing whether the EEOC acted
unreasonably in initiating the litigation. 9
We accord “great deference” to the district court’s
conclusion that the EEOC acted unreasonably in initiating the
litigation. See Great Steaks, 667 F.3d at 517. The EEOC argues
9
Because the district court did not base its decision to
award attorneys’ fees on the reasonableness of the EEOC’s
opposition to the laches defense, we do not consider the EEOC’s
argument that it reasonably thought it could overcome that
defense. Separately, we observe that certain facts in the
district court’s summary judgment decision concerning the
unavailability of witnesses and the loss of documents overlap
with facts relating to the court’s alternative basis for
awarding attorneys’ fees, namely, that the EEOC’s continued
pursuit of the litigation was unreasonable. However, because we
do not reach the court’s alternative holding, we need not
address whether that aspect of the court’s decision improperly
relied on facts relating to the summary judgment decision.
14
nevertheless that the district court erred in reaching this
conclusion, and attacks the court’s factual finding that the
EEOC could not identify individual members of the class of
victims eligible for monetary relief.
Under our clear error standard, however, we will not
reverse a district court’s factual finding unless after
reviewing the record we are “left with a definite and firm
conviction that a mistake has been committed.” Helton v. AT & T
Inc., 709 F.3d 343, 350 (4th Cir. 2013). The present record
contains four entries from the spring of 2006 noting that an
“[i]nvestigator interviewed potential class member,” and four
similar notations from early 2009 noting that “[p]otential class
member [was] interviewed.” (Emphasis added.) The EEOC asserts
that these entries demonstrate that the EEOC identified the
class of victims harmed by Propak’s hiring practices during the
relevant period. We disagree.
The record lacks any description of the substance of these
interviews with “potential” class members, or of any other
interviews that may have been conducted to identify the class of
purported victims. 10 In particular, the record does not show
10
We also observe that although the EEOC designated
documents relating to various interviews and other efforts to
identify class members as being privileged material, the EEOC
has not identified any reason preventing it from filing redacted
versions of these documents in the record.
15
whether the individuals who were interviewed worked or applied
for work in the Shelby, North Carolina facility during the
relevant time period, nor does the record indicate whether the
individuals interviewed had credible claims of discrimination or
desired to be included in the class.
The record also includes a notation that “contact letters
[were] mailed to potential class members.” However, the record
does not show that any individuals receiving these letters fell
within the EEOC’s definition of the target class. Moreover, the
fact that the EEOC engaged in efforts to identify “potential
claimants” does not establish that the EEOC successfully
identified individuals harmed by Propak’s hiring practices
during the relevant time period. Indeed, the evidence showing
the EEOC’s efforts to identify the class of victims, without any
indication that such efforts were successful, implicitly
supports the district court’s finding that claimants could not
be identified. For these reasons, we do not have a “definite
and firm conviction” that the district court mistakenly
concluded that the EEOC had failed to identify potential victims
in its target class before filing its complaint. See Helton,
709 F.3d at 350.
Next, the EEOC alternatively argues that the district
court’s factual finding that the EEOC was unable to identify
claimants is an “irrelevant consideration.” Again, we disagree.
16
We previously have held that an award of attorneys’ fees to
a defendant under the Christiansburg standard was justified in
part because the plaintiff sought relief that it knew or should
have known was unavailable. See Hutcherson v. Bd. of
Supervisors, 742 F.2d 142, 146 (4th Cir. 1984). Applying that
principle here, we conclude that the district court was entitled
to consider the lack of remedies available to the EEOC as a
result of its inability to identify any potential victims.
We likewise find no merit in the EEOC’s assertion that it
was entitled to maintain an action seeking relief against Propak
despite the fact that, nine months before filing the complaint,
the EEOC became aware that Propak no longer operated any
facilities in North Carolina. Contrary to the EEOC’s
contention, the Seventh Circuit’s decision in EEOC v. Konica
Minolta Business Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir.
2011), offers no support to the EEOC here. The decision in
Konica solely concerned the issue whether a subpoena sought by
the EEOC requested information relevant to its investigation, in
view of the fact that one of Konica’s four facilities in the
Chicago area had closed.
Id. at 367. Moreover, that decision
did not sanction the initiation of an enforcement action when a
defendant no longer maintained the facilities where the
discrimination allegedly occurred.
17
We therefore conclude that the court did not abuse its
discretion in holding that the EEOC acted unreasonably in
initiating this litigation. See Christiansburg, 434 U.S. at
421; Great
Steaks, 667 F.3d at 517. In view of our conclusion,
we need not address the district court’s alternative holding
that the EEOC’s continued pursuit of the litigation was
unreasonable in light of the developing record in the case.
Finally, because the EEOC does not argue on appeal that the
district court erred in determining the amount of attorneys’
fees to which Propak is entitled, we decline to address the
district court’s well-reasoned fee calculation.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
18
WILKINSON, Circuit Judge, concurring:
I concur in full in Judge Keenan’s fine opinion. I write
separately to address an unfortunate implication in the
appellant’s brief: that federal agencies, and the Equal
Employment Opportunity Commission (“EEOC” or “Commission”) in
particular, should be treated differently from private parties
with regard to attorneys’ fees determinations.
****
The district court noted in its order “that the EEOC acted
unreasonably by initiating litigation against Propak after [a
more-than-five-year] investigation and at a time when the
allegedly noncompliant facilities had been closed and the class
of individuals purportedly injured had not existed for five
years.” J.A. at 564. Nevertheless, the EEOC suggests that it
should be given special leeway for the astonishing delays that
rendered initiation of this suit so problematic. For example, it
offers as a partial explanation for its delay the fact that
“evidence provided by Propak was waiting to be reviewed and
analyzed by the EEOC’s over-burdened staff.” Appellant’s Br. at
52; see also id. at 53 (justifying a lack of activity by noting
the Commission’s “review of voluminous documents and analysis of
complex statistical data”). The EEOC also seems to suggest that
because we have shown deference to its performance of its
administrative functions in other circumstances, the district
19
court should not have “second guess[ed]” the Commission’s
pursuit of this suit and awarded attorneys’ fees. Id. at 55-56.
Together, these statements appear to argue that agencies should
be graded on a curve, due to the burdens placed upon them by
statute, regulation, their own internal review processes, and
their need to assure the optimal deployment of finite resources.
These arguments do have some intuitive appeal. As the EEOC
notes in its brief, the Commission receives tens of thousands of
complaints to review each year under Title VII of the Civil
Rights Act of 1964 and other statutes such as the Age
Discrimination in Employment Act, the Americans with
Disabilities Act, and the Equal Pay Act. See Appellant’s Br. at
6. The agency is required to investigate each of these
complaints and, if it finds reasonable cause to believe them
true, attempt to eliminate any alleged unlawful conduct through
informal methods. See 42 U.S.C. § 2000e-5(b). If these
potentially time consuming efforts fail, the Commission is
authorized to bring a civil suit against a private party. See
id. § 2000e-5(f)(1).
These are substantial tasks. Notwithstanding the
Commission’s burden, however, Congress and the Supreme Court
have not seen fit to exempt it altogether from awards to
prevailing defendants under Title VII. The statute specifically
provides that “the court, in its discretion, may allow the
20
prevailing party, other than the Commission or the United
States, a reasonable attorney's fee (including expert fees) as
part of the costs, and the Commission and the United States
shall be liable for costs the same as a private person.” Id. §
2000e-5(k). Interpreting this language in Christiansburg Garment
Co. v. EEOC, the Supreme Court rejected a reading that would
have found the EEOC legally exempt from paying fees where a
private plaintiff would not be.
434 U.S. 412, 422 n.20 (1978).
It noted that although there were some arguments that “fee
awards against the Commission should rest on a standard
different from that governing fee awards against private
plaintiffs,” the statute did “not support a difference in
treatment among private and Government plaintiffs when a
prevailing defendant seeks to recover his attorney’s fees.”
Id.
at 423 n.20. Needless to say, most private parties would not
dream of trying to excuse the excessive delays here with the
explanation that they were otherwise burdened or occupied.
Doctrinally, then, the issue is closed.
And with good reason. The Christiansburg Court’s standard
for a prevailing defendant to recover fees from a plaintiff --
that the suit was “frivolous, unreasonable, or without
foundation,” id. at 421 -- reflects a determination to head off
unjustified litigation. A party forced to defend against a
groundless lawsuit is prejudiced every bit as much if the
21
litigation is brought by a federal agency as if it were
commenced by a private party. The EEOC in particular brings suit
against a wide range of employers for whom the defense of
lawsuits may be prohibitively expensive. Christiansburg was
sensitive to this problem, noting that “many defendants in Title
VII claims are small- and moderate-size employers for whom the
expense of defending even a frivolous claim may become a strong
disincentive to the exercise of their legal rights.” Id. at 423
n.20.
No doubt Congress was aware that assessing attorneys’ fees
against the EEOC when it brings a groundless suit might provide
a disincentive for the agency to litigate meritorious cases. But
it was not unreasonable for Congress to expect the Commission,
with its store of expertise and experience, to recognize a
baseless suit before being told the same by a federal court. For
this reason, “[w]hen a court imposes fees on a plaintiff who has
pressed a ‘frivolous’ claim, it chills nothing that is worth
encouraging.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th
Cir. 1993). Thus, to vindicate the Title VII fee provision’s
goals of encouraging meritorious suits while protecting innocent
defendants from frivolous ones, the EEOC must be subject to the
same potential penalties as private parties who bring vexatious
litigation.
22
Applying a different standard to the EEOC in the absence of
any statutory differentiation would simply encourage sub-optimal
agency behavior. After all, although it faces the special
burdens described above when litigating a case, the EEOC also
operates with particular advantages as a litigant. As a
government agency, it often benefits from greater resources than
do the private parties it sues. See EEOC v. Great Steaks, Inc.,
667 F.3d 510, 519 (4th Cir. 2012) (noting the “vast disparity of
resources between the government and private litigants”);
Roanoke River Basin Ass'n v. Hudson,
991 F.2d 132, 138 (4th Cir.
1993) (acknowledging congressional concern that private parties’
“resources are substantially outweighed by those of the
government”). The United States in general enjoys certain
procedural advantages in federal court not available to private
litigants. See 14 Charles Alan Wright et al., Federal Practice
and Procedure § 3652 (3d ed. 1998) (noting various privileges
enjoyed by the federal government as a plaintiff). And Title VII
in particular provides the EEOC with the ability to exact,
albeit unintentionally, high costs on a private employer
throughout the investigative process and potential subsequent
litigation. See, e.g., 29 C.F.R. § 1601.16 (granting the EEOC
authority to issue subpoenas and compel production of evidence
under the control of those subpoenaed); 29 C.F.R. § 1602.14
23
(requiring that a defendant charged with discrimination preserve
all relevant records until final disposition of the charge).
These advantages have the potential to combine with the
more dubious aspects of bureaucratic culture in a way that can
be particularly toxic. There is a danger that those inside a
public bureaucracy, armed with significant resources, authority,
and discretion, may become gradually numb as to how their
actions affect those outside parties they investigate or sue. It
is bad enough for doctors’ or lawyers’ offices, or car
dealerships, or mail-order retailers to jerk patients or clients
or customers around, but those relationships are at least often
based on some element of choice and subject to a measure of
market discipline. Government, by contrast, has a more
unfettered hand over those it either serves or investigates, and
it is thus incumbent upon public officials, high and petty, to
maintain some appreciation for the extent of the burden that
their actions may impose.
Granted that this is an adversary process, it is still
remarkable that the saga of delay and indifference recounted by
the district court has brought forth not a glint of recognition
as to what the agency subjected the defendant to with its start-
and-stop behavior over a total investigative and litigative
course of nearly eight years. Just as importantly, the plaintiff
in this action was left hanging, forced to badger the Commission
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through counsel for his own right to sue. The same limbo
affected both parties to this controversy, and if attorneys’
fees were not awarded here, the statutory provision would be
effectively decapitated.
As one would hope not to judge an individual on a single
incident, so one should not judge an agency on a single case.
One can condemn a particular instance of conduct without
diminution of respect for the many instances where EEOC
litigation challenging illicit discrimination was properly
conducted and more than proved its worth. But what happened here
was inexcusable. Of course no one wants or expects the
Commission to bring suit prematurely. But by the same token, no
company deserves to have its affairs tied up by a government
agency for this period of time. Even if the agency will not
acknowledge the damage that such lengthy investigation and
groundless litigation can inflict on companies and their
employees, we can. Like individuals, businesses have a right to
get on with their affairs. Investigations of this length divert
a company’s people and resources, preventing the business from
devoting its capital, human and financial, to those enterprising
purposes for which it was established.
In addition to deciding to litigate a case it had little
chance of winning, the EEOC has continued to press its case at
the attorneys’ fees stage. Its brief essentially rehashes the
25
same arguments on which it was quite unable to prevail on the
merits. The Supreme Court has warned that “[a] request for
attorney’s fees should not result in a second major litigation.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). But that is
exactly what we have. This case “has proceeded too long and its
continuation, with the attendant burden of expense, will in and
of itself implicate the ability to work justice.” Rum Creek Coal
Sales, Inc. v. Caperton,
31 F.3d 169, 181 (4th Cir. 1994).
The story of this litigation is regrettable because the
EEOC provides primary recourse to those victims of
discrimination that persists in our society to an unfortunate
extent. The reference to statutory goals and missions, however,
cannot be divorced from the manner in which those purposes are
implemented. Here, the Commission spent five-and-a-half on-and-
off years pursuing its investigation of Propak, by which point
the company had closed both facilities in question and, as noted
by the district court, the agency had been unable to locate
purported victims or class members. The district court was left
to observe that “by the time the EEOC determined to bring this
action it was abundantly clear that a lawsuit would be moot and
thus it was unreasonable to have filed it.” J.A. at 565.
Furthermore, once it had initiated litigation, the Commission
acknowledged its unusually long delay and limited discovery left
no doubt that the agency still lacked the victims, witnesses,
26
documents or viable theories of relief to win the case. After
examining this evidence, the district court not surprisingly
determined “that the EEOC’s pursuit of the litigation after its
filing was unreasonable.” J.A. at 565. Surely this is not and
must not become the norm. It is not far-fetched to believe that
the nation’s deep commitment to combatting discrimination will
be affected for good or ill by the esteem in which this
important agency is held.
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