KEITH P. ELLISON, District Judge.
Now pending before the Court are the Equal Employment Opportunity Commission's ("EEOC's" or "the Commission's") Motion for Reconsideration and a Renewed Motion for Summary Judgment on behalf of Defendants Bass Pro Outdoor World, LLC and Tracker Marine, LLC ("Defendants" or "Bass Pro"). The Motion for Reconsideration
In the second part of this Order, the Court considers Bass Pro's Renewed Motion for Summary Judgment, in which Defendant reiterates its request that the Court dismiss the lawsuit on account of the EEOC's purported failure to satisfy its pre-suit obligations. Bass Pro advances three principal arguments: that the Court was mistaken in concluding that the EEOC had not acted in bad faith in the course of conciliating its § 706 claims; that, regardless of how the Commission conducted itself in the first conciliation period, it exhibited bad faith during the recent stay; and that the EEOC failed adequately to investigate its claims before filing suit. After careful consideration of all three — the third in particular — the Court
The disputes presented by these two motions reflect a fundamental disagreement as to the role that the Commission is to play in the vindication of rights guaranteed by Title VII and the scope of its authority to represent those who may have been aggrieved by unlawful employment practices. This clash appears to present itself in a great number of Title VII suits in which the EEOC is involved. Yet, despite the frequency with which these questions arise, the lower courts have been driven by disagreement — as to the ultimate answers, yes, but more vexingly, as to the proper way of thinking about the issues. Indeed, this is an area of law ripe for further illumination from the appellate courts. All of this is to say that, while the Court ultimately sides with the EEOC on both Motions, it is fully sensitive to the strength of the antithesis.
A more exhaustive account of the relevant procedural background was set forth in this Court's most recent Memorandum and Order. (Doc. No. 151.) To summarize, the EEOC first filed suit in September 2011, alleging a "pattern or practice of unlawfully failing to hire Black and Hispanic applicants" and unlawful retaliation against individuals who opposed Bass Pro's practices. (Doc. No. 1.) The Commission filed an Amended Complaint in January 2012 (Doc. No. 23) and Defendants moved to dismiss soon thereafter (Doc. No. 32). In the Order that is the subject of this Motion to Reconsider — and discussed in more detail below — this Court granted in part and denied in part the Motion to Dismiss. (Doc. No. 53, 884 F.Supp.2d at 509.)
The Commission again amended its complaint. (See Doc. No. 61.) The Second Amended Complaint described the
The parties then both filed motions for summary judgment. Arguing that the EEOC had abdicated its responsibility to conciliate in good faith. Defendants asked the Court to dismiss the lawsuit (Doc. No. 119); contending that the sufficiency of its endeavors to conciliate is not subject to judicial review, the EEOC essentially asked that the Court not consider Bass Pro's Motion (Doc. No. 137.) The Court ultimately denied both requests, though it ordered a thirty-day stay for additional conciliation of the EEOC's § 706 claims. See EEOC v. Bass Pro Outdoor World, LLC, 4:11-CV-3425, 2013 WL 5515345 (S.D.Tex. Oct. 2, 2013) (Doc. No. 149); EEOC v. Bass Pro Outdoor World LLC, 1 F.Supp.3d 647, 4:11-CV-3425, 2014 WL 838477 (S.D.Tex. Mar 4, 2014) (Doc. No. 151).
Further attempts at conciliation were unsuccessful, prompting Defendants to file a Renewed Motion for Summary Judgment (Doc. No. 160). The Commission, for its part, filed a Fourth Amended Complaint and filed the instant Motion for Application of the Franks/Teamsters Model to the Section 706 Class Hiring Claim (Doc. No. 172).
In its March 2012 Motion to Dismiss, in the course of arguing for dismissal of the EEOC's claims brought pursuant to § 706, Defendants "accuse[d] the EEOC of attempting, impermissibly, to bring a pattern or practice claim pursuant to § 706 so that it can recover compensatory and punitive damages based on an Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 [97 S.Ct. 1843, 52 L.Ed.2d 396] (1977), model." (Doc. No. 53, 884 F.Supp.2d at 510.) Defendants explained that they "oppose[d] the EEOC's attempt to merge § 706 and § 707 into a single, non-existent `hybrid' claim." (Id. at 510.)
In response, "[t]he EEOC insist[ed] that it c[ould] invoke the Teamsters model of proof to establish a pattern or practice of
After considering those arguments and surveying relevant case law, the Court decided that "the EEOC cannot bring a hybrid pattern or practice claim that melds the respective frameworks of § 706 and § 707." (Id. at 520.) To that end, the Court "interpret[ed] § 706 to not provide a vehicle for pattern or practice claims." (Id.) It did not agree with Plaintiff that the Supreme Court's decision in General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), or the Sixth Circuit's decision in EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir.1980), counseled in favor of a holding to the contrary. (Id.) And with that decided, the Court determined that Federal Rule of Civil Procedure 12(b)(6) required dismissal of the EEOC's § 706 claims. (Id. at 521-22.)
The EEOC has since repleaded its § 706 claims and they are no longer the subject of a Motion to Dismiss for Failure to State a Claim. Nevertheless, the Commission has asked the Court to reconsider its determination that § 706 claims cannot be proved using the Teamsters model of proof.
Section 703 of Title VII of the Civil Rights Act of 1964 makes it unlawful for employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To enforce § 703, 42 U.S.C. § 2000e-4 (§ 705) creates the EEOC and "charge[s it] with the enforcement of Title VII." Faragher v. City of Boca Raton, 524 U.S. 775, 806, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
As the EEOC was originally only granted the ability to employ "informal methods of conference, conciliation, and persuasion," the 1972 Amendments to the Civil Rights Act gave rise to the modern version of § 706, the purpose of which, "plainly enough, was to secure more effective enforcement of Title VII." General Telephone, 446 U.S. at 325, 100 S.Ct. 1698. As amended, § 706 now requires that, upon the receipt of a charge "filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission," the EEOC is to serve the employer with notice of that charge and undertake an investigation. § 706(b). Where the Commission uncovers "reasonable cause" to believe the charge, it "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Id. Section 706(f)(1) then authorizes the Commission to bring suit in the event that conciliation fails to secure a settlement. Section 707, meanwhile, authorizes suits alleging "a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter." 42 U.S.C. § 2000e-6. Section 707 allows the Commission to request a three-judge district court in cases of "general public importance" and permits appeals from such courts directly to the Supreme Court. § 707(b).
As a general proposition, violations of § 703 can be proven using direct or circumstantial evidence. Unsurprisingly, employment discrimination plaintiffs are nearly always forced to rely on the latter, as "smoking gun" style direct evidence is exceedingly difficult to unearth. When an individual brings suit, or where the EEOC brings suit on behalf of a single individual, the most common method of adducing circumstantial evidence of discrimination is the framework set forth by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). There, the Court crafted a three-step process for proving discrimination through circumstantial evidence. First, the plaintiff "must carry the initial burden under the statute of establishing a prima facie case of [prohibited] discrimination." Id. at 802, 93 S.Ct. 1817. The Court explained that he or she could do so "by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id. Where the plaintiff can state a prima facie case, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. This burden is one of production, not of persuasion. If it is met, the burden shifts once more to the plaintiff, who must show that the employer's stated reason for taking an adverse employment action against the employee "was in fact pretext." Id. at 804, 93 S.Ct. 1817. The McDonnell Douglas framework has been fine-tuned over the years, and modified, as necessary, for different sorts of claims, but its essence endures as herein described. See, e.g., Haire v. Bd. of Sup'rs of Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir.2013).
McDonnell Douglas does not, however, offer the only way to prove discrimination through circumstantial evidence. In Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the Supreme Court addressed "whether identifiable applicants who were denied employment because of race after the effective date and in violation of Title VII ... may be awarded seniority status retroactive to the dates of their employment applications." Id. at 750, 96 S.Ct. 1251. There, petitioner brought a putative class action, pursuant to § 706, against his former employer, respondent Bowman Transportation, as well as his unions, alleging race discrimination. Id. The district court found that Bowman had engaged in a pattern of race discrimination that permeated its hiring, transferring, and discharging of employees, and that those practices also affected Bowman's collective-bargaining agreement. Id. at 751, 96 S.Ct. 1251. The district court granted class certification and created two sub-classes, one comprised of black non-employees who applied for over-the-road truck driver positions and another made up of black employees who applied to transfer into those positions. Id. The court ordered that Bowman notify members of both subclasses of their right to priority consideration for the driving positions, but it declined "to grant to the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an [over-the-road] position." Id.
The district court offered two bases for its denial of seniority relief to unnamed class members. Id. at 771, 96 S.Ct. 1251.
That standard of proof received more exhaustive explication one term later in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). There, the federal government brought a § 707 suit against T.I.M.E.-D.C. Inc., a common carrier, and the International Brotherhood of Teamsters, the union that represented most of the carrier's employees. Both courts below concluded "that the employer had violated Title VII by engaging in a pattern and practice of employment discrimination against Negroes and Spanish-surnamed Americans, and that the union had violated the Act by agreeing with the employer to create and maintain a seniority system that perpetuated the effects of past racial and ethnic discrimination." Id. at 328, 97 S.Ct. 1843.
In reviewing those decisions, the Supreme Court was asked to address petitioner's contention that "no employee should be entitled to relief until the Government demonstrates that he was an actual victim of the company's discriminatory practices." Id. at 357, 97 S.Ct. 1843. The Court began by explaining that petitioners had "seize[d] upon the McDonnell Douglas pattern as the only means of establishing a prima facie case of individual discrimination." Id. at 358, 97 S.Ct. 1843. Not so, said the Court. To the contrary, the Court noted that its "decision in [McDonnell Douglas] ... did not purport to create an inflexible formulation." Id. at 358, 97 S.Ct. 1843. Rather, the Court reiterated that "`the facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from (a plaintiff) is not necessarily applicable in every respect to differing factual situations.'" Id. at 358, 97 S.Ct. 1843 (alterations omitted) (quoting McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817). As such, the Court was able to clarify that that "[t]he importance of McDonnell Douglas lies, not in its specification of the
That provided a natural segue to Franks. The Teamsters Court explained Franks' posture and holding and then summarized that "[t]he Franks case thus illustrates another means by which a Title VII plaintiff's initial burden of proof can be met." Id. at 359, 97 S.Ct. 1843. In a footnote that followed, the Court further elucidated that "[t]he holding in Franks that proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief is consistent with the manner in which presumptions are created generally." Id. at 359 n. 45, 97 S.Ct. 1843. It explained that "[p]resumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party's superior access to the proof." Id. (citations omitted). The Franks presumption adhered to both of those principles:
Id. The court then explained why pattern-or-practice suits fit "squarely within our holding in Franks" and how the framework set forth in Franks would apply in the case at bar. Id. at 360, 97 S.Ct. 1843.
It is against this backdrop that the EEOC argues that it should be permitted to prove its § 706 claims using the Franks/Teamsters model of proof.
At the centerpiece of the Commission's argument is Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir.2012), cert. denied, ___ U.S. ___, 134 S.Ct. 92, 187 L.Ed.2d 254 (2013). Plaintiff Mirna Serrano had several times applied unsuccessfully to work for defendant Cintas in Michigan and thus filed an EEOC charge alleging sex discrimination. Id. at 889. The EEOC investigated Serrano's case, as well as Cintas's hiring practices throughout Michigan, and issued a determination stating that it had reasonable cause to believe that Cintas had discriminated against Serrano and "females as a class." Id. The EEOC immediately began to conciliate on behalf of "Serrano, one-hundred and eleven other specified women, and an unspecified number of `other similarly situated females.'" Id. (record citations omitted).
In May 2004, while conciliation was still ongoing, Serrano filed a Title VII class-action complaint in the Eastern District of Michigan. Id. at 890. Once conciliation concluded in 2005 without an agreement, the Commission intervened in Serrano's suit. Id. The individual claims wended their way through the court over the next several years, with all private plaintiffs ultimately out of the case by September
The district court proceeded to enter several orders adverse to the EEOC. First, defendant successfully moved for judgment on the pleadings on the grounds that the Commission could not pursue a pattern-or-practice claim under § 706. Id. Next, the court denied several discovery motions aimed at fleshing out the Commission's individual § 706 claims. Then, the court denied the Commission's motion to amend its complaint to add a § 707 claim. Finally, the court granted summary judgment in defendant's favor on each of the individual claimants' claims and granted defendant's motion alleging administrative default. Id.
On appeal, the Sixth Circuit deemed the "most salient" issue to be "the disagreement among the parties as to whether the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas ... burden-shifting framework, or whether it may employ the pattern-or-practice framework announced by the Supreme Court in International Brotherhood of Teamsters v. United States." Id. at 891-92. In short, it addressed the exact question posed here.
The Court began its analysis by "reviewing the legal landscape for Title VII discrimination claims and situating the McDonnell Douglas and Teamsters frameworks within that context." Id. at 892. As this Court has, it noted that "[t]he Title VII jurisprudence has developed to allow plaintiffs to make their showing of discriminatory intent for disparate-treatment claims either through direct or circumstantial evidence." Id. at 892 (citations omitted). It then reviewed the McDonnell Douglas and Teamsters frameworks. The court concluded that "[t]he two structures are similar insofar as they impose the initial burden on the plaintiff to present facts sufficient to create an inference of discrimination" but that "the substance of what the plaintiff must prove to prevail in establishing a prima facie case varies under each framework." Id. at 893.
With the stage set, the court moved to address "whether the EEOC may employ the Teamsters framework only when it acts pursuant to § 707." Id. at 894. It answered that question in the negative. Id. First, the court acknowledged that "Cintas is correct that § 706 does not contain the same explicit authorization as does § 707 for suits under a pattern-or-practice theory." Id. (comparing the text of § 706 and § 707 and highlighting the explicit reference to "pattern or practice" in the latter section). Nevertheless, it explained, "relevant Supreme Court precedent suggests that the exclusion of pattern-or-practice language from § 706 does not mean that the EEOC may utilize a pattern-or-practice theory only when bringing suit under § 707. Instead, it suggests that the inclusion of the language in § 707 simply means that the scope of the EEOC's authority to bring suit is more limited when it acts pursuant to § 707." Id. at 894.
To support that proposition, the court noted that "[t]he premise for the Supreme Court's decision in Teamsters was that McDonnell Douglas did not create `an inflexible formulation' for burden shifting, but rather embodied the `general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.'" Id. (quoting Teamsters, 431 U.S. at 358, 97 S.Ct. 1843). The court observed, as this one has, that Teamsters taught that a plaintiff has flexibility in how she meets that initial burden, and variance based on
The strongest argument against the Commission's position, the Serrano court concluded, was that "allowing the EEOC to pursue Title VII claims pursuant to the Teamsters framework under § 706 would render § 707 superfluous — a result that Congress could not have intended." Id. at 895. Serrano further explained that Cintas's argument was "buttressed by [its] contention that Congress's 1991 amendments to § 706 adding compensatory and punitive damages — remedies not added to § 707 — evidence a desire to prevent the availability of these remedies when the EEOC seeks to vindicate pattern-or-practice discrimination." Id. The court acknowledged that "Cintas has a point that reading § 706 to permit Teamsters-style claims creates some overlap with § 707" and that "Congress may have wanted to provide the EEOC with two different vehicles for initiating two different types of Title VII suits, each with its own advantages and disadvantages in terms of scope, burden of proof, and available remedies." Id. at 895-96. The court, however, found "an important distinction [that] prevents § 707 from becoming superfluous even if Teamsters applies in the § 706 context: § 707 permits the EEOC to initiate suit without first receiving a charge filed by an aggrieved individual, as it must when initiating suit under § 706." Id. at 896 (citing EEOC v. Int'l Profit Assocs., Inc., No. 01 C 4427, 2007 WL 844555, at *9 (N.D.Ill. Mar. 16, 2007)). That is, the court determined that "[i]t [wa]s reasonable to conclude that the presence of a previously filed charge by an aggrieved person was the distinction upon which Congress wished the availability of particular remedies to rise and fall." Id.
Finally, the court also cast aside Cintas's argument that "allowing the EEOC to pursue the pattern-or-practice method for § 706 claims will allow the EEOC to have its cake and eat it too' because the Teamsters framework provides a more generous standard of proof and § 706 affords greater remedies." Id. The fatal flaw to that argument, the court explained, was the assumption that the Teamsters framework embodies a more lenient standard. Rather, "it is simply a different standard of proof." Id. In fact, the initial burden in Teamsters — proving "that discrimination `was the company's standard operating procedure'" — is more demanding than what McDonnell Douglas requires. Id. (quoting Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir.2012)). Consequently, "[i]t is only because this initial requirement is more arduous that after the showing is made it is assumed `that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.'" Id. (quoting Teamsters, 431 U.S. at 362, 97 S.Ct. 1843). In short, the court summed up, "the EEOC must always weigh the risks — as
In the end, the court of appeals concluded that "the district court erred in concluding that the EEOC may not pursue a claim under the Teamsters pattern-or-practice framework, pursuant to its authority vested in § 706 of Title VII." Id.
This Court finds Serrano persuasive. This Court, like the Serrano court, takes from McDonnell Douglas, Franks, and Teamsters that the Supreme Court has sanctioned a flexible approach to proving Title VII violations that can be adapted to the case at hand. The Court does not take from those cases that the framework to be used in proving a claim flows from the code section under which the suit is initiated. Indeed, the Court finds it significant that Franks itself was a case brought pursuant to § 706. The result in Serrano is consistent with the statutory text and purpose, and it is supported by precedent from the Supreme Court, several courts of appeals, and other district courts. Defendant's arguments to the contrary are unavailing.
The text of § 706 does not preclude use of the Teamsters model of proof. Section 706(a) states that the EEOC is "empowered ... to prevent any person from engaging in any unlawful employment practice as set forth in" §§ 703 or 704.
This Court also agrees with Serrano that the Supreme Court's General Telephone decision lends support to the EEOC's position. There, the Court addressed whether § 706 entitles the EEOC to seek class-wide relief without abiding by the processes outlined in Federal Rule of Civil Procedure 23. General Telephone, 446 U.S. at 320, 100 S.Ct. 1698. A majority of the Court said that it could. Writing for four other Justices, Justice White explained that "[g]iven the clear purpose of Title VII, the EEOC's jurisdiction over enforcement, and the remedies available, the EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals." Id. at 324, 100 S.Ct. 1698; see also EEOC v. Waffle House, Inc., 534 U.S. 279, 288, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (same). It rejected the availability of backpay — i.e. individualized relief
It strains credulity to suggest that, in the course of granting the EEOC permission to sidestep Rule 23 in suits brought on behalf of a class and pursuant to § 706, the Court intended to require that the Commission prove each class member's claim in the manner set forth in McDonnell Douglas. To so require would be entirely inconsistent with the Court's reminder that "the EEOC is not merely a proxy for the victims of discrimination and that the EEOC's enforcement suits should not be considered representative actions." Id. at 326, 100 S.Ct. 1698.
The subsequent history of the General Telephone litigation also supports the application of Teamsters to § 706 claims. On remand, the Commission tried its § 706 claim using the Teamsters model. The district court rejected the EEOC's statistical and anecdotal evidence and found that the Commission had failed to prove a pattern-or-practice of sex discrimination. EEOC v. Gen. Tel. Co. of the Nw., Inc., No. C77-247C, 1985 WL 56622 (W.D.Wash. Oct. 18, 1985). But, after initially affirming, a panel of the Ninth Circuit reversed and remanded for a new trial. EEOC v. Gen. Tel. Co. of Nw., Inc., 885 F.2d 575, 577 (9th Cir.1989), cert. denied, 498 U.S. 950, 111 S.Ct. 370, 112 L.Ed.2d 332 (1990).
As the Sixth Circuit in Serrano is the only court of appeals to address head on the question presented here, a review of other circuit precedent is far from dispositive. Though the Fifth Circuit has not expressly ruled that Teamsters can be employed by the EEOC in a § 706 suit, it also has not ruled it out, and, on balance, reported decisions from this circuit and the others are more easily reconciled with Serrano than with Defendants' position.
In Scarlett v. Seaboard Coast Line R.R. Co., 676 F.2d 1043 (5th Cir. Unit B 1982), three individual plaintiffs sought to employ the Teamsters framework. In explaining that they could not do so, the court of appeals indicated that "[a]n individual proceeding as an individual under Title VII" must apply McDonnell Douglas, and, to draw a contrast, signaled its unqualified approval of using Teamsters in EEOC actions brought pursuant to § 707 as well as in private Rule 23 class action suits. Id. at 1053. The Fifth Circuit did not address EEOC suits brought pursuant to § 706 and this court is not willing to extrapolate
In Celestine v. Petroleos de Venezuella SA, 266 F.3d 343 (5th Cir.2001), the Fifth Circuit again declined to apply Teamsters in a private, non-class suit. The court noted that "[a] pattern or practice case is not a separate and free-standing cause of action (as the appellants assert), but is really `merely another method by which disparate treatment can be shown,'" id. at 355 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1219 (5th Cir.1995)), thus leaving open the possibility that it can be used in suits other than those brought pursuant to § 707, which does represent a free-standing cause of action. The Celestine court's next statement — "The typical pattern or practice discrimination case is brought either by the government or as a class action to establish `that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers,'" id. (quoting Teamsters, 431 U.S. at 360, 97 S.Ct. 1843) — does little more to help Defendants. Read in context, the Fifth Circuit there was likely contemplating suits brought under § 707 when it referred to cases "brought ... by the government," but the Court still does not believe that the court of appeals intended to rule out the use of Teamsters in cases such as this one. Indeed, the existence of a "typical" pattern or practice case presupposes the existence of an atypical one, and that is likely what this court now confronts.
The Fifth Circuit has applied the Teamsters model in a class action brought pursuant to Title VII and 42 U.S.C. § 1981. In Boykin v. Georgia-Pac. Corp., 706 F.2d 1384 (5th Cir.1983), the court observed that "the standards for judging claims of pattern or practice employment discrimination under Title VII and Section 1981 are identical." Id. at 1393 (citing Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n. 4 (5th Cir. Unit B 1982)). Then, noting that "[t]he validity of statistical proof as a means of proving a prima facie Title VII case has long met with acceptance in the courts," id. at 1387 (citations omitted), the court proceeded to analyze plaintiffs' statistical proof and then both certify a class and grant judgment in its favor. Id. at 1394.
Boykin is instructive for two related reasons. First, because § 707 only authorizes suit by the Government, to the extent Boykin was brought as a Title VII suit, it was brought pursuant to § 706. Bass Pro has offered no principled reason why a private class action may employ Teamsters and an EEOC class action may not. Second, insofar as the Boykin class brought suit pursuant to 42 U.S.C. § 1981, that statute contains no textual reference to "pattern-or-practice," undercutting, at least somewhat, that the Teamsters framework can be used only where the statute under which suit is brought contains the words "pattern-or-practice." See Payne v. Travenol Labs., Inc., 673 F.2d 798, 818 (5th Cir.1982) ("Discriminatory treatment claims under § 1981 are measured by the same standards that apply to discriminatory treatment claims under Title VII.... Thus, we apply the Teamsters pattern of proof to the § 1981 claims as well as the Title VII claims in this case." (citations omitted)); Marshall v. Sun Oil Co. (Delaware), 605 F.2d 1331, 1336 n. 2 (5th Cir. 1979) (applying Teamsters framework in suit brought pursuant to ADEA).
The Court would prefer that relevant precedents spoke more particularly to the issue at hand. However, a disinterested review of the case law does provide at least partial validation of the Commission's position.
Recent district court opinions confirm that Serrano was rightly decided. For instance, a district court within this circuit recently adopted Serrano's reasoning and result. See David v. Signal Int'l, LLC, ___ F.Supp.3d ___, No. CIV.A. 08-1220, 2013 WL 8600729 (E.D.La. Dec. 4, 2013). The EEOC there brought claims pursuant to both §§ 706 and 707. Id. at ___, 2013 WL 8600729 at *1. In crafting a discovery and case management plan, defendant argued that the Commission could not use the Teamsters model to prove its § 706 claims. Signal relied for that proposition upon this Court's previous order that is under reconsideration here. Id. at ___, 2013 WL 8600729 at *2. After reviewing this Court's reasoning, the Signal court pointed out that this Court had ruled before the Sixth Circuit had decided Serrano — and thus, not only did this Court lack the benefit of Serrano, so too did all the other decisions upon which this Court relied — and it determined that Serrano, as the only court of appeals decision to squarely consider the issue, was "persuasive." Id. at ___-___, 2013 WL 8600729 at *3-4. Finally, the Signal court observed that at least one other district court had adopted Serrano's holding. Id. (citing EEOC v. Pitre, Inc., 908 F.Supp.2d 1165, 1174 (D.N.M.2012)).
With respect to district court decisions pre-dating Serrano, this Court noted several that support the Commission's position in the Memorandum and Order currently up for reconsideration. See, e.g., EEOC v. Scolari Warehouse Markets, Inc., 488 F.Supp.2d 1117, 1145 (D.Nev.2007) ("Given the similar nature of such claims and the remedial purpose of Title VII, the Court sees little legal or prudential reason to foreclose the EEOC from bringing a pattern-or-practice claim pursuant to §§ 706 and 707 for the purpose of seeking punitive and compensatory damages."); Int'l Profit Associates, 2007 WL 844555, at *9 ("The primary distinction between a suit brought under section 706 and a suit brought under section 707 does not pertain to the legal theory under which the EEOC may proceed ... [T]he EEOC may still rely on the pattern or practice theory when it sues under section 706."); EEOC v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *1 (N.D.Ill. July 13, 1999) (rejecting the argument that
Bass Pro is left with four primary arguments against the EEOC's position. First, Bass Pro contends that application of Teamsters in a § 706 suit would render § 707 superfluous. Second, Defendant urges that the Civil Rights Act of 1991 evinces Congress's desire to keep § 706 and § 707 utterly distinct. Third, Bass Pro argues that siding with the Commission would likely cause grave Seventh Amendment complications. And finally, Bass Pro asserts that granting the EEOC's motion would amount to breaking ranks with the welter of district courts around the country. Though tactfully made, these arguments can ultimately be rejected in turn.
Bass Pro's most forceful argument against application of Teamsters in a § 706 suit is that doing so "would render § 707 superfluous," a result which would "contravene the `longstanding canon of statutory construction that terms in a statute should not be considered so as to render any provision of that statute meaningless or superfluous.'" (Doc. No. 174 at 16 (quoting Beck v. Prupis, 529 U.S. 494, 506, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000)).) To be fair, this Court previously embraced a version of this argument. (See Doc. No. 53, 884 F.Supp.2d at 520 ("The Court finds no support in the case law, or in the statutes themselves, for the EEOC's proposition that § 707's pattern or practice language is merely a redundancy.").) And, this is an argument, addressed supra, that the Serrano court felt compelled to discuss. There, the Court determined that "an important distinction prevents § 707 from becoming superfluous even if Teamsters applies in the § 706 context: § 707 permits the EEOC to initiate suit without first receiving a charge filed by an aggrieved individual, as it must when initiating suit under § 706." Serrano, 699 F.3d at 896 (citing Int'l Profit Associates, 2007 WL 844555, at *9).
This Court agrees with Serrano that the outcome sought here by the EEOC does not in fact render § 707 superfluous, though the Court parts ways, at least to an extent, with the Sixth Circuit's reasoning. Contrary to what Serrano seems to suggest,
That said, the Court fully agrees with Serrano that, even if Teamsters can be used in suits brought pursuant to § 706, there remain important distinctions between § 706 and § 707. For instance, as the Fifth Circuit has acknowledged, "[u]nder § 707, the EEOC (formerly the Attorney General) may institute a `pattern or practice' suit anytime that it has `reasonable cause' to believe such a suit necessary." United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 843 (5th Cir.1975) (citing United States v. Jacksonville Terminal Co., 451 F.2d 418, 438 (5th Cir.1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972)). That is, unlike § 706, "Section 707 does not make it mandatory that anyone file a charge against the employer or follow administrative timetables before the suit may be brought." Id.; see also id. at 844 (noting that, in amending § 707, Congress "apparently intended that the EEOC have investigative and conciliatory authority" not that it intended that the EEOC be forced to engage in investigation and conciliation).
All this is to say that, though application of Teamsters in § 706 suits unmistakably renders such actions more similar to § 707 actions, doing so does not make the latter so superfluous that it must be contrary to Congress's intent. This Court is convinced that the most sensible interpretation of the structure of Title VII is that the "inclusion of [pattern-or-practice] language in § 707 simply limited the scope of the EEOC's authority to act under § 707." EEOC v. Pitre, Inc., 908 F.Supp.2d 1165, 1174 (D.N.M.2012) (citing Serrano, 699 F.3d at 894). In other words, "pattern or practice" was included in § 707 in order to curtail the availability of suits brought without charges, tried before three-judge district courts, and appealed directly to the Supreme Court, not to dictate a particular framework of proof that could apply only to suits brought under that section. "Sections 706 and 707 clearly overlap," id. at 1173, but "legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination." Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).
These distinctions notwithstanding, Bass Pro comes back to the Civil Rights Act of 1991 and Congress's decision to permit jury trials and compensatory and punitive damages for suits brought pursuant § 706 but not under § 707. (See Doc. No. 174 at 9; see also 42 U.S.C. § 1981a(a)(1).) Bass Pro argues that "[t]he EEOC would have this Court judicially eliminate that distinction." (Doc. No. 174 at 9.) That is, Bass Pro contends that "it is impossible to believe that Congress intended in [the Civil Rights Act of 1991] to authorize the EEOC to seek legal damages for victims of a discriminatory pattern or practice but failed to" add anything to that effect to § 1981a. (Id. at 17-18.)
This argument misses the mark. Congress did intend to make compensatory and punitive damages available to victims of a discriminatory pattern or practice, it just required that they — or the EEOC — seek them in a § 706 suit. Simple logic bears this out. Wherever there is a pattern or practice of discrimination, it is axiomatic that there are individual victims who have been discriminated against. These are the same individuals that could bring their own § 706 suit or whose rights the EEOC could seek to vindicate in its own § 706 action.
Taking another approach, Bass Pro instead argues that the purpose of the Civil Rights Act of 1991, as evinced by a House Report, dictates that Congress could not have meant to allow Teamsters to be used in § 706 suits. Not so. In a supplemental filing invited by the Court, Bass Pro explains that, in passing the 1991 amendments, Congress expanded the availability of legal damages in order to "conform the remedies for intentional gender and religious discrimination to those currently available to victims of intentional race discrimination" through 42 U.S.C. § 1981. H.R. Rep. 102-40(I), at 70 (1991); see also See Doc. No. 179 at 5. Bass Pro further notes that the availability of compensatory and punitive damages was also designed "to encourage citizens to act as private attorneys general to enforce the statute." H.R. Rep. 102-40(I), at 65. Those two observations, Bass Pro contends, show the Act "was
That argument leaves the Court unmoved. First, Bass Pro does not, because it cannot, argue that the 1991 amendments made compensatory and punitive damages available only in suits brought by private individuals and not in those brought by the EEOC, and so it is of little moment that Congress's primary purpose was something other than placing another arrow in the Commission's enforcement quiver. If it did, it did.
Both parties complain that adopting the rule advocated for by the other will "lead[] to insurmountable Seventh Amendment problems." (Doc. No. 172 at 5; see also Doc. No. 174 at 11 ("The EEOC's admissions establish that there is no Constitutionally permissible way to try this case.").) The Seventh Amendment's Reexamination Clause dictates that "no fact tried by a jury shall be otherwise re-examined." U.S. Const. amend. VII. Bass Pro identifies two main (if related) Reexamination Clause issues that it believes would arise in the event that Teamsters is employed for the EEOC's § 706 claims. First, Stage II of Teamsters will require individualized inquiries regarding punitive damages, which "will necessarily involve overlapping factual issues with an earlier jury's determination of whether intentional discrimination was Bass Pro's standard operating procedure, leading to `potentially inconsistent results.'" (Doc. No. 174 at 29-30 (quoting Doc. No. 41 at 17-18).) Second, "there would be obvious overlapping issues with respect to anecdotal witnesses who testified in Stage I to support a pattern or practice finding and the resolution of those same witnesses' claims in later proceedings." (Id. at 30.) That is, the fact-finder at Stage I will have to determine whether the anecdotes of discrimination did in fact occur; Bass Pro argues that "[p]ermitting subsequent juries to revisit those determinations in Stage II individual proceedings would clearly violate the Seventh Amendment, as the second jury may conclude none of the anecdotal witnesses were discriminated against, which would be inconsistent with the earlier pattern or practice liability finding." (Id.)
In Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998), the court of appeals considered the Seventh Amendment in the context of a putative Title VII class action. The Fifth Circuit observed that, by making available compensatory and punitive damages and introducing a right to a jury, the Civil Rights Act of 1991 wrought significant changes with respect to the viability of class actions in Title VII suits. Id. at 410. Determining that the district court had not abused its discretion when it refused to certify a Rule 23(b)(3) class action, the court noted that "[i]n order to manage the case, the district court faced the likelihood of bifurcated proceedings before multiple juries. This result in turn increased the probability that successive juries would pass on issues decided by prior ones, introducing potential Seventh Amendment problems and further decreasing the superiority of the class action device." Id. at 419-20 (citing Castano v. Am. Tobacco Co., 84 F.3d 734, 750-51 (5th Cir.1996); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1302-03 (7th Cir.1995)). While this Court need not concern itself with superiority and the other strictures of Rule 23, the tension between ensuring manageability and respecting the Seventh Amendment is no less significant here. The court does not blink those issues, but it also does not believe that either manageability or the Seventh Amendment make it categorically impossible to apply the Teamsters framework to a § 706 action. After all, other courts have concluded that
Bass Pro cites an array of district court cases from around the country that it asserts "agree that Teamsters is available to the EEOC under § 707 but not under § 706." (Doc. No. 174 at 19.) The cases lack the power that Bass Pro ascribes to them.
Perhaps most prominently, Bass Pro relies on a series of decisions asserting that, in § 706 cases, "it is axiomatic that the EEOC stands in the shoes of those aggrieved persons in the sense that it must prove all of the elements of their sexual harassment claims to obtain individual relief for them." EEOC v. CRST Van Expedited, Inc., 611 F.Supp.2d 918, 929 (N.D.Iowa 2009); see also EEOC v. O'Reilly Auto. Inc., No. CIV.A. H-08-2429, 2010 WL 5391183, at *4 (S.D.Tex. Dec. 14, 2010) (same), report and recommendation adopted sub nom. EEOC v. O'Reilly Auto. Inc., No. CIV.A. H-08-2429, 2010 WL 5387634 (S.D.Tex. Dec. 16, 2010); EEOC v. IPS Indus., Inc., 899 F.Supp.2d 507, 517 (N.D.Miss.2012) (relying on O'Reilly Auto and CRST for the same proposition); Arizona ex rel. Goddard v. GEO Grp., Inc., No. CV 10-1995-PHX-SRB, 2012 WL 8667598, at *7 (D.Ariz. Apr. 17, 2012) (relying on O'Reilly Auto and CRST for the same proposition).
There is superficial appeal to Bass Pro's argument, but after carefully reviewing the cases, this Court concludes that decisions such as these, concerning sexual harassment and hostile work environment claims, are inapposite. A review of McDonnell Douglas's and Teamsters's origins helps to show why. McDonnell Douglas grappled with the reality that direct evidence of class-based discrimination is often hard to come by. It is seldom the case that an employer tells an employee that he is being terminated on account of his race, or that she is being terminated on account of her gender. McDonnell Douglas embraces that fact and offers a burden-shifting scheme through which a plaintiff can prove class-based discrimination using only circumstantial evidence. Franks simply adapted McDonnell Douglas to fit the unique circumstances presented by a § 706 class action in which individual victims have alleged that they were discriminated against as part of a pattern-or-practice of discrimination. Teamsters further clarified that its approach is not an alternative to McDonnell Douglas, but a modification. The Teamsters Court elucidated that "[t]he importance of McDonnell Douglas lies, not in its specification of the
Thus, acknowledging that Teamsters and Franks spring from the same root as McDonnell Douglas, and that the Teamsters framework is designed for cases in which discrimination is proved through circumstantial evidence, it becomes clear why sexual harassment and hostile work environment claims have no relevance here. The Fifth Circuit has explained that there are generally four elements to a hostile work environment claim:
EEOC v. Boh Bros. Const. Co., LLC, 731 F.3d 444, 453 (5th Cir.2013) (en banc) (alteration in original) (quoting Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157, 162-63 (5th Cir.2007)).
What should by now arrest the reader is that hostile work environment claims are not proven using McDonnell Douglas or any other burden-shifting scheme. They rely, for the most part, on direct evidence. As the Supreme Court has explained, the McDonnell Douglas framework operates "progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). "In contrast ... `the case of ... harassment that creates an offensive environment does not present a factual question of intentional discrimination which is at all elusive.'" Jones v. Flagship Int'l, 793 F.2d 714, 720 n. 5 (5th Cir.1986) (quoting Henson v. City of Dundee, 682 F.2d 897, 905 n. 11 (11th Cir. 1982)). As such — and as the Henson court concluded — nothing like McDonnell Douglas is needed.
The upshot is this: if hostile work environment/harassment cases do not ordinarily rely on McDonnell Douglas when an individual brings suit (or when the EEOC bring suit on behalf of an individual), it is no surprise that courts resist the application of Teamsters to cases involving multiple individuals.
2007 WL 3120069, at *3 (N.D.Ill. Oct. 23, 2007); see also CRST, 611 F.Supp.2d at 934 ("As several district courts have recognized over the last two decades, the Teamsters pattern or practice model `breaks down' when the unlawful employment practice at issue is sexual harassment based on a hostile work environment." (citing EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1071 (C.D.Ill. 1998); Int'l Profit Associates, 2007 WL 3120069, at *3; Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 875-76 (D.Minn. 1993))).
In short, cases like CRST, O'Reilly Auto, IPS Industries, and Goddard have little-to-no bearing on the issue this Court is presently considering.
Bass Pro additionally seeks to rely upon JBS Colorado, 2011 WL 3471080, which
A related case, EEOC v. JBS USA, LLC ("JBS Nebraska"), No. 8:10CV318, 2012 WL 5906537 (D.Neb. Nov. 26, 2012), upon which Bass Pro also depends, is in fact no help at all. Contrary to Bass Pro's assertion, the JBS Nebraska court did not "expressly adopt[]" the Colorado court's reasoning and hold that "`the Teamsters method of proof is applicable only when Section 707 claims are presented, and not when Section 706 claims are at issue.'" (Doc. No. 174 at 20 (quoting JBS Nebraska, 2012 WL 5906537, at *2).) Rather, the district court there was explaining that the magistrate judge had adopted the JBS Colorado court's reasoning. JBS Nebraska, 2012 WL 5906537, at *2. The district judge noted that JBS Colorado had relied on the later-vacated Serrano decision and thus appears to have taken no position on whether "the EEOC may pursue claims under the Teamsters pattern-or-practice framework pursuant to its Section 706 authority." Id. at *3. The question before the JBS Nebraska court was whether private interveners, not proceeding as a Rule 23 class, could employ the Teamsters framework. Id. Based on binding Eighth Circuit precedent, the JBS Nebraska court said that they could not. Id. This court has no reason to cast doubt upon that conclusion, but it also has no reason to treat it as persuasive.
Upon exhaustive review of Title VII's statutory scheme and the cases interpreting it, the Court concludes that it was wrong to summarily conclude in its earlier Memorandum and Order that § 706 claims cannot be proven using the Teamsters framework. But all of the foregoing presupposes the existence of a properly filed § 706 claim, for which the EEOC has met all of its pre-suit obligations. Whether it has done so is a close question that the Court next addresses.
This Court has twice already explained the administrative prerequisites with which Congress has asked the EEOC to comply. (See Doc. Nos. 149, 151.) The "integrated, multistep enforcement procedure" which Congress has devised begins with a charge of discrimination, proceeds to an investigation, leads, potentially, to a
Bass Pro's renewed Motion for Summary Judgment seeks dismissal of the § 706 claims for a number of reasons. To the extent it seeks to relitigate the same issues addressed in the last Memorandum and Order, as well as to persuade the Court that the § 706 claims should be dismissed for failure to conciliate during the Court's recently ordered stay, based on the law outlined in its last Order, the Motion is
The Court believes that the proper starting point is § 706 and whether it is a vehicle for the Commission to bring claims on behalf of unidentified victims. The statute contemplates that the Commission will use § 706 to respond to charges "filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission," § 706(b) — language which, for present purposes, is inconclusive. The reference to "a person claiming to be aggrieved" supports Bass Pro's position that § 706 actions must be brought on behalf of identifiable individuals, but that "person claiming to be aggrieved" is set off from "a member of the Commission" suggests that Commissioner charges perhaps do not need to be filed "on behalf of" identifiable victims. And, when read keeping in mind that all courts seem to agree that victims on whose behalf the Commission seeks to bring a § 706 action need not be identified until (at least) during the investigation, Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir.1985), it becomes clear that § 706(b) says little about the question the Court now considers. Section 706(f), the statutory provision that expressly authorizes civil actions, is of little more use. That section sets forth that "[t]he person or persons aggrieved shall have the right to intervene in a civil action," but of course, the identities of those "persons aggrieved" need not necessarily be determined during the investigation to breathe life into the Act. In short, the text of § 706 does not help determine whether the Commission can do what it is attempting to do here.
General Telephone, at first blush, appears to support the position that even "class" § 706 claims must be brought on behalf of identifiable victims. There, the Court stated that "the EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals." 446 U.S. at 324, 100 S.Ct. 1698. The Court's reference to "a group of individuals" may support Defendants' view. So too the Court's statement that "[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." The reference to "specific individuals" at whose "behest" the Commission acts certainly seems to indicate that § 706 suits must be brought on behalf of named victims. Id. at 326, 100 S.Ct. 1698. And, the Court's articulation of its holding, again referencing "a group of aggrieved individuals," id. at 333, 100 S.Ct. 1698, could be read as consistent with Bass Pro's proposed rule.
But digging a little deeper, it is not clear whether General Telephone actually supports Defendants' view of § 706. In introducing the facts of the case, the Supreme Court stated only that "[t]he complaint alleged discrimination against female employees in General Telephone's facilities in the States of California, Idaho, Montana, and Oregon." Id. at 321, 100 S.Ct. 1698. That statement does not necessarily help; it can be read either as indicating that the Commission sought relief on behalf of all such women, or on behalf of a group of
Moreover, allowing the Commission to bring suit on behalf of individuals not identified during the investigation is consistent with the notion, seemingly implicit in General Telephone, that Congress wanted the Commission to have all the same rights as private litigants when it brings suit pursuant to § 706. In that vein, if private litigants can bring a Rule 23 class action to vindicate the rights of unnamed class members, see Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), it follows that the EEOC should be able to do likewise, uninhibited by § 706's investigation requirement.
And, Serrano, which the Court, as stated above, believes had a healthy understanding of § 706 and the Title VII remedial scheme, allowed the Commission to proceed with a § 706 claim on behalf of individuals not identified during the EEOC's investigation. See 699 F.3d at 890 ("[T]he EEOC filed an amended complaint on August 20, 2009, which limited its allegations to `a class of women in the State of Michigan' as opposed to females nationwide."); id. at 904 ("[I]t is clear that the EEOC provided notice to Cintas that it was investigating class-wide instances of discrimination.... [T]he [proposed conciliation] agreement indicated that the EEOC sought class-based remedies by requesting relief for `other similarly situated qualified female applicants who sought employment.'"). A collection of other courts from around the country have done likewise. EEOC v. Harvey L. Walner & Associates, 91 F.3d 963, 968 (7th Cir.1996) (indicating that, in suits brought pursuant to § 706, the EEOC may allege in its Complaint "unlawful conduct it has uncovered during the course of its investigation" even where that means "challeng[ing] discrimination affecting unidentified members
Some courts have drawn an important distinction "between the significance of pre-litigation disclosure of the alleged unlawful conduct and pre-litigation disclosure of the specific identities and number of aggrieved persons." EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., 918 F.Supp.2d 1171, 1179 (D.Colo.2013). In Original Honeybaked Ham, the court explained that "[d]isclosure of the alleged unlawful conduct is essential. Only with knowledge of the alleged unlawful conduct can the employer meaningfully engage in pre-litigation conciliation, by determining its exposure and what changes in procedures or policies may be warranted." Id. But, it explained, "[t]he greater the specificity in describing the alleged unlawful conduct, the less important it becomes to specifically identify aggrieved persons." Id. at 1180. To be sure, the discussion of what must be disclosed during conciliation is not a perfect analog for what must become known to the Commission during its investigation, but it does lend some support to the EEOC's position that it can conduct an adequate investigation even where it does not know the specific identities of all those who were aggrieved. The Commission's investigation of "unlawful conduct" can satisfy its pre-suit obligations in such cases.
This is not to say that there is no support for Bass Pro's position. Far from it. First, starting with the text and structure of Title VII, § 706(b)'s right of intervention is not as meaningful if the identities of victims need not be ascertained until stage II of Teamsters, which is likely when the Commission would prefer to identify victims. Of course, the individuals would still be able to intervene at the stage of litigation when their individual damages are to be determined, but they would have no opportunity to offer any input earlier in litigation, which is presumably their prerequisite.
Second, Bass Pro is correct that courts "will not review the sufficiency of the EEOC's pre-suit investigation" but that "`[c]ourts will review whether an investigation occurred.'" EEOC v. JBS USA, LLC, 940 F.Supp.2d 949, 964 (D.Neb.2013) (quoting EEOC v. Hibbing Taconite Co., 266 F.R.D. 260, 272 (D.Minn. 2009)); see also EEOC v. Grane Healthcare Co., No. CIV.A. 3:10-250, 2013 WL
These decisions help Bass Pro in at least two ways. First, needless to say, Bass Pro's argument that the § 706 claims should be thrown out for failure to investigate relies on the reviewability of the Commission's investigation. These cases establish as much. Second, they confirm that there must be congruence between the scope of the Commission's investigation and its lawsuit. To be sure, though, neither of these points makes pellucid that the investigation must turn up the names of the § 706 claimants.
Third, a growing number of district courts — many of which the Court discussed in its last Memorandum and Order — have come fairly close to making explicit that individuals on whose behalf the EEOC intends to bring § 706 suits must have the merits of their individual claims investigated. See, e.g., EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR, 2009 WL 2524402, at *16 (N.D.Iowa Aug. 13, 2009) ("[T]he case at bar is one of those exceptionally rare § 706 cases in which the record shows that the EEOC did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before
In consideration of these competing concerns — and this is a very close question — the Court is not persuaded to dismiss the § 706 claims for failure to investigate, because the Court is not fully persuaded that the Commission is barred from bringing § 706 claims on behalf of unidentified victims. Defendants' Motion is thus
The Court did not resolve in its last Memorandum and Order Defendants' Motion for Summary Judgment on the Commission's § 706 retaliation claims. (1 F.Supp.3d at 672, 2014 WL 838477, at *21.) As the Court posited in that Memorandum and Order, and as was discussed briefly the last time the parties were in Court, because the suit was initiated by a Commissioner's charge, the fate of the individual charges is immaterial. Summary Judgment on those claims is therefore
The Motion for Reconsideration and Renewed Motion for Summary Judgment were hotly contested; the questions presented by both were close. Bass Pro has ably presented its disagreements with the conclusions that the Court reaches in this Memorandum and Order, and the Court readily acknowledges that there is ample support for Defendants' positions. As such, while the Court believes discovery should proceed on the § 707 claims, the Court would look favorably upon a motion for certification of an interlocutory appeal as to the § 706 claims, both with respect to how the EEOC may attempt to prove them and as to whether the individuals on whose behalf the claims are brought must be identified (by name) during the course of the EEOC's investigation. These are important questions that will not only shape, if not resolve, the case at hand, but also help determine the Commission's actions in future cases.
