Amicus Curiae Brief — CRST Van Expedited, Inc. v. Equal Emp't Opportunity Comm'n, 136 S. Ct. 582 (2015) (No. 14-1375)

Supreme Court, US.

FILED

No. 14-1875 JUN 13 2015

es es CLERK

Supreme Court of the United States

CRST VAN EXPEDITED, INC.,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICI CURIAE OF

THE EQUAL EMPLOYMENT ADVISORY

COUNCIL AND NATIONAL FEDERATION

OF INDEPENDENT BUSINESS SMALL

BUSINESS LEGAL CENTER

IN SUPPORT OF PETITIONER

KAREN R. HARNED RAE T. VANN

ELIZABETH MILITO *AMY BETH LEASURE

NATIONAL FEDERATION OF Counsel of Record

INDEPENDENT BUSINESS NORRIS, TYSSE, LAMPLEY

SMALL BUSINESS LEGAL & LAKIS, LLP

CENTER 1501 M Street, N.W.

1201 F Street, N.W. Suite 400

Suite 200 Washington, DC 20005

Washington, DC 20004 aleasure@ntll.com

(202) 406-4443 (202) 629-5600

Attorneys for Amicus Curiae Attorneys for Amicus Curiae

National Federation of Equal Employment Advisory

Independent Business Council

Small Business Legal Center *Admitted Only in Maryland;

practice supervised by

June 2015 Partners of the Firm

WiLSon-Epes Prawnina Co., Inc. — (202) 789-0096 - WasnincTon, D. C. 20002

IN THE

Supreme Court of the Anited States

No. 14-1375

CRST VAN EXPEDITED, INC.,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE OF THE EQUAL

EMPLOYMENT ADVISORY COUNCIL AND

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER

IN SUPPORT OF PETITIONER

To the Honorable the Chief Justice and the

Associate Justices of the United States Supreme

Court:

Pursuant to Rule 37.1 and 37.2 of the Rules of this

Court, the Equal Employment Advisory Council

(EEAC) and National Federation of Independent

Business Small Business Legal Center (NFIB) hereby

respectfully move this Court for leave to file the

accompanying brief as amici curiae in support of the

position of the Petitioner in this case. The written

consent of the attorney for the Petitioner has been filed

with the Clerk of the Court. The consent of the

attorney for the Respondent was requested but not

acted upon.

In support of its motion, EEAC and NFIB submit the

following:

1. The Equal Employment Advisory Council

(EEAC) is a nationwide association of employers

organized in 1976 to promote sound approaches to

the elimination of discriminatory employment prac-

tices. Its membership includes over 250 major U.S.

corporations, collectively providing employment to

millions of workers. EEAC’s directors and officers

include many of the nation’s leading experts in

the field of equal employment opportunity. Their

combined experience gives EEAC a unique depth of

understanding of the practical, as well as legal,

considerations relevant to the proper interpretation

and application of equal employment policies and

requirements. EEAC’s members are firmly committed

to the principles of nondiscrimination and equal

employment opportunity.

2. The National Federation of Independent

Business (NFIB) Small Business Legal Center is a

nonprofit, public interest law firm established to

provide legal resources and be the voice for small

businesses in the nation’s courts through representa-

tion on issues of public interest affecting small

businesses. NFIB is the nation’s leading small busi-

ness association, with offices in Washington, D.C. and

all 50 state capitals. Founded in 1943 as a nonprofit,

nonpartisan organization, NFIB’s mission is to pro-

mote and protect the right of its members to own,

operate, and grow their businesses. NFIB represents

350,000 member businesses nationwide. The NFIB

Small Business Legal Center represents the interests

of small business in the nation’s courts and partici-

pates in precedent setting cases that will have a

critical impact on small businesses nationwide, such

as the case before the Court in this action.

3. Many of amici’s members are employers, or

representatives of employers, subject to Title VII of the

Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e

et seq., as amended, and other federal employment-

related laws and regulations. As representatives

of potential defendants to Title VII discrimination

charges and lawsuits, amici’s members have a

substantial interest in the issue presented in this case

regarding whether attorney's fees are available to

a prevailing defendant when a Title VII claim is

dismissed based on the U.S. Equal Employment

Opportunity Commission’s (EEOC) failure to meet

its statutory investigation requirements prior to

initiating litigation.

4. As national representatives of many profession-

als whose primary responsibility is compliance with

equal employment opportunity laws and regulations,

amici have perspectives and experience that can help

the Court assess issues of law and public policy raised

in this case beyond the immediate concerns of the

parties. Since 1976, EEAC and NFIB collectively have

participated as amicus curiae in hundreds of cases

before this Court and the federal courts of appeals,

many of which have involved important questions of

Title VII's proper interpretation and application.

Because of their practical experience in these matters,

amici are well-situated to brief the Court on the

relevant concerns of the business community and the

significance of this case to employers generally.

WHEREFORE, for the reasons stated, the Equal

Employment Advisory Council and National Federa-

tion of Independent Business Small Business Legal

Center respectfully request the Court grant them

leave to file the accompanying brief amici curiae.

KAREN R. HARNED

ELIZABETH MILITO

NATIONAL FEDERATION OF

INDEPENDENT BUSINESS

SMALL BUSINESS LEGAL

CENTER

1201 F Street, N.W.

Suite 200

Washington, DC 20004

(202) 406-4443

Attorneys for Amicus Curiae

National Federation of

Independent Business

Small Business Legal Center ,, , itted Only in Maryland:

June 2015

Respectfully submitted,

RAE T. VANN

*AMY BETH LEASURE

Counsel of Record

NORRIS, TYSSE, LAMPLEY

& LAKIS, LLP

1501 M Street, N.W.

Suite 400

Washington, DC 20005

aleasure@ntll.com

(202) 629-5600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

practice supervised by

Partners of the Firm

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............-.c.c0cc00e00000e. iii

INTEREST OF THE AMICI CURIAE................ 2

STATEMENT OF THE CASE ..............20c0c00000000- 4

SUMMARY OF REASONS FOR GRANTING

RR Re ae ee AA 6

REASONS FOR GRANTING THE WRIT.......... 9

WHETHER AND TO WHAT EXTENT A

PREVAILING DEFENDANT IS ENTITLED

UNDER TITLE VII TO AN ATTORNEY'S FEE

AWARD AS A RESULT OF THE EEOC’S

UNREASONABLE LITIGATION CONDUCT

IS A RECURRING ISSUE THAT IS OF

SUBSTANTIAL IMPORTANCE TO THE

A. The Eighth Circuit’s Holding Is In Direct

Conflict With Decisions By The Fourth

And Ninth Circuits Permitting Prevail-

ing Defendants To Recover Attorney's

Fees For Claims Dismissed Because Of

The EEOC’s Failure To Satisfy Its

Mandatory Title VII Pre-Suit Adminis-

trative Investigation Procedures.............. 10

1. The EEOC has a duty to investigate

and properly conciliate Title VII

discrimination charges prior to filing

I eincconiasrenssctnenmemiteenibannieimnneninten 12

(i)

ii

TABLE OF CONTENTS—Continued

Page

2. Applying the standard enunciated by

this Court in Christiansburg, the

Fourth and Ninth Circuits permit

recovery of attorney's fees when an

unsuccessful EEOC lawsuit followed

TT cicccestncnninsnindianmbmineines 14

B. Precluding A Prevailing Defendant From

Recovering Attorneys Fees When A

Claim Is Dismissed For The EEOC’s

Failure To Investigate Would Undermine

Effective Title VII Enforcement By

Removing A _ Powerful Disincentive

Against Increasingly Abusive Litigation

Tactics By The EEOC ..............ccccccccceceoeees 17

1. The EEOC’s recent enforcement

efforts demonstrate both a focus on

systemic litigation and a disturbing

trend towards bringing suit without

i eee 17

2. Facilitating the award of attorney's

fees to prevailing defendants based on

frivolous, unreasonable, or groundless

EEOC lawsuits stemming from a

failure to investigate would discour-

age the agency from pursuing ill-

conceived litigation...........................++ 20

IIT csencenscessensccensnssseescsnessnsessnencssosnscens 23

ill

TABLE OF AUTHORITIES

FEDERAL CASES Page(s)

Christiansburg Garment Co. v. EEOC, 434

Be TTT ccicnistscnsstepsnteeianseninimaieel passim

City of Arlington, Texas v. FCC, 133 S. Ct.

SETI insceinateinentnninatsinniamiiianiniiniaans 21

EEOC v. Bailey Co., 563 F.2d 439 (6th Cir.

ae inesicidietnninsnenntetaniasennuassesenbenibanbiagiinnieden 14

EEOC v. Bloomberg L.P., 967 F. Supp.2d

8 ke 19

EEOC v. Delight Wholesale Co., 973 F.2d

Se 14, 19

EEOC v. Jillian’s of Indianapolis, Indiana,

Inc., 279 F. Supp. 2d 974 (S.D. Ind.

rT cssctcihapcenseaaitiititahiatiaiariinsaesibitmeeaiataiiaiiea 14, 19

EEOC v. Outback Steak House of Florida,

Inc., 520 F. Supp. 2d 1250 (D. Colo.

ila aaa ciliata 14

EEOC v. Peoplemark, Inc., 732 F.3d 584

RETR eee eee 22

EEOC v. Pierce Packing Co., 669 F.2d 605

TT ee 16, 17

EEOC v. Propak Logistics, Inc., 746 F.3d

IIT TT scnnsccenneeceminianatinntansel passim

EEOC v. Shell Oil Co., 466 US. 54

iittala it laealieeeeiieemaitanes 6, 12, 14, 21

EEOC v. Sterling Jewelers, Inc., 3 F. Supp.

3d 57 (W.D.N.Y. 2014), appeal filed, No.

14-1782 (2d Cir. May 15, 2015)................ 14, 19

iv

TABLE OF AUTHORITIES—Continued

Page(s)

EEOC. v. TriCore Reference Laboratories,

493 F. App’x 955 (10th Cir. 2012) ............ 22

Fox v. Vice, 131 S. Ct. 2205 (2011)............... 11

Hanrahan v. Hampton, 446 U.S. 754

ITT isiniieianeteneeaeiaieeniiiaitaiaihtiis il

Independent Federation of Flight Attend-

ants v. Zipes, 491 U.S. 754 (1989)............ 11

Mach Mining, LLC v. EEOC, 135 S. Ct.

IIIT hirnrsshinsnnsnnctennemmuaaninemesananen 12, 20, 21

Occidental Life Insurance Co. v. EEOC, 432

Be TTT ries onsiiisinicsiicennsimintensiiadneianits 13

FEDERAL STATUTES

Ter 11

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, 86 Stat. 103 (1972)... 12

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000¢ et seq. .................0000008 passim

42 U.S.C. § 2000e-2(a)(1) .......... ee eeeeeeees 6, 10

42 U.S.C. § 2000e-5(b) ........... eee ceeeeeeeeeeeees 7,12

42 U.S.C. § 20000-5(f) ................ccccceseseeees 12

42 U.S.C. § 2000€-5(k) ........ eee eeeeeeees 7, 10,11

FEDERAL REGULATIONS

SG B BSE GED cecccsccvevccsesccssvecssesseseves 13

29 C.F.R. § 1601.21 (a) ............ccecceeeeeseeeeenees 13

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

ar > © Be GD ccncenececssvsccesvnsveevscevecees 13

I saree erisennernncemmmeniniints 13

OTHER AUTHORITIES

EEOC, Fiscal Year 2013 Performance and

Accountability Report (Systemic Cases —

Performance Measure 4)........................... 18

EEOC, Fiscal Year 2014 Performance and

Accountability Report (Systemic Cases —

Performance Measure 4).....................+000+- 18

EEOC, Strategic Enforcement Plan FY

SETI iittcihinneintetainentcnineeaideniibueceinaansinmnsaes 17, 18

IN THE

Supreme Court of the Gnited States

No. 14-1375

CRST VAN EXPEDITED, INC.,

Petitioner,

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICI CURIAE OF THE EQUAL

EMPLOYMENT ADVISORY COUNCIL AND

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council and

National Federation of Independent Business Small

Business Legal Center respectfully submit this brief

amici curiae in support of the petition for a writ of

certiorari.!

' Counsel of record for all parties received notice at least 10

days prior to the due date of the amici curiae’s intention to file

this brief. Counsel for amici curiae authored this brief in its

entirety. No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

2 )

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (EEAC) is

a nationwide association of employers organized in

1976 to promote sound approaches to the elimination

of discriminatory employment practices. Its member-

ship includes over 250 major U.S. corporations,

collectively providing employment to millions of

workers. EEAC’s directors and officers include many

of the nation’s leading experts in the field of equal

employment opportunity. Their combined experience

gives EEAC a unique depth of understanding of

the practical, as well as legal, considerations relevant

to the proper interpretation and application of equal

employment policies and requirements. EEAC’s mem-

bers are firmly committed to the principles of non-

discrimination and equal employment opportunity.

The National Federation of Independent Business

(NFIB) Small Business Legal Center is a nonprofit,

public interest law firm established to provide legal

resources and be the voice for small businesses in the

nation’s courts through representation on issues of

public interest affecting small businesses. NFIB is the

nation’s leading small business association, with

offices in Washington, D.C. and all 50 state capitals.

Founded in 1943 as a nonprofit, nonpartisan organiza-

tion, NFIB’s mission is to promote and protect the

right of its members to own, operate, and grow their

businesses. NFIB represents 325,000 member busi-

nesses nationwide. The NFIB Small Business Legal

Center represents the interests of small business in

the nation’s courts and participates in precedent

setting cases that will have a critical impact on small

businesses nationwide, such as the case before the

Court in this action.

3

Many of amici’s members are employers, or repre-

sentatives of employers, subject to Title VII of the Civil

Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e

et seg., a8 amended, and other federal employment

laws and regulations. As representatives of potential

defendants to Title VII discrimination charges and

lawsuits, amici’s members have a substantial interest

in the issue presented in this matter regarding the

propriety of awarding attorney's fees to a prevailing

defendant where the EEOC’s failure to investigate or

attempt conciliation results in dismissa] of a sub-

sequent Title VII lawsuit. The court below ruled,

erroneously, that an award of attorney’s fees and costs

is unavailable in the absence of a judicial determina-

tion on the merits of the underlying claim, «ad that

dismissal] for failure to investigate or conciliate does

not constitute a merits decision.

As national representatives of many professionals

whose primary responsibility is compliance with equal

employment opportunity laws and regulations, amici

have perspectives and experience that can help the

Court assess issues of law and public policy raised

in this case beyond the immediate concerns of the

parties. Since 1976, EEAC and NFIB collectively

have participated as amicus curiae in hundreds of

cases before this Court and the federal courts of

appeals, many of which have involved important Title

VII questions. Because of their practical experience

in these matters, amici are well-situated to brief the

Court on the relevant concerns of the business

community and the significance of this case to

employers generally.

4

STATEMENT OF THE CASE

On September 27, 2007, the EEOC commenced a

civil action against CRST Van Expedited, Inc. (CRST),

accusing the company of engaging in unlawful sex

discrimination against a class of unidentified female

drivers, in violation of Title VII of the Civil Rights Act

of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., as

amended. Pet. App. 34a. During discovery, the EEOC

ultimately identified 270 women who allegedly had

experienced sexual harassment. Pet. App. 38a.

At the close of discovery, the district court dismissed

99 of the individual claims as a discovery sanction.

Pet. App. 40a. The EEOC did not appeal that

determination. Jd. Subsequently, the district court

granted summary judgment to CRST on more than

half of the remaining claims on a variety of bases.

Finally, the district court granted CRST’s motion to

dismiss the last 67 individual claims because the

agency had failed to comply with its statutory

obligation under Title VII to investigate, issue a

reasonable cause determination, and conciliate the

claims. Pet. App. 204a, 213a.

Thereafter, CRST moved for an award of attorney’s

fees on the ground that the EEOC’s actions in bringing

the case were unreasonable and vexatious. EEOC uv.

CRST Van Expedited, Inc., No. 07-CV-95-LRR, 2010

WL 520564, at *7, vacated by 760 F.3d 847 (8th Cir.

2012). Applying the standard for awarding attorney’s

fees to prevailing defendants in Title VII cases

established by this Court in Christiansburg Garment

Co. v. EEOC, 434 U.S. 412 (1978), the district court

determined that an award of fees was warranted

because “(t]he EEOC’s failure to investigate and

attempt to conciliate the individual claims constituted

5

an unreasonable failure to satisfy Title VII's prerequi-

sites to suit.” Id. Accordingly, the lower court ordered

the EEOC to reimburse approximately $4.5 million of

the attorney’s fees and other costs incurred by CRST.

Id. at *20.

On appeal, the Eighth Circuit affirmed the dismis-

sal of the 67 individual claims, determining that the

“record confirms that the EEOC wholly failed to

satisfy its statutory pre-suit obligations as to these

67 women....” Pet. App. 115a-116a. The court also

affirmed on the vast majority of claims on which

summary judgment had been granted. Pet. App. 116a-

156a. Because two claims were remanded to the

district court, the Eighth Circuit vacated the award of

attorney's fees and costs to CRST without prejudice.

Pet. App. 156a.

After entry of final judgment on remand, the district

court awarded CRST a total of $4,189,296.10 in

attorney’s fees, $413,387.58 in out-of-pocket expenses,

and $91,758.46 in taxable costs. Pet. App. 84a-85a.

The EEOC appealed, arguing that it was the

prevailing party because it only brought one claim,

which it settled out-of-court with CRST. Pet. App. 17a.

On appeal, the Eighth Circuit rejected the EEOC’s

argument that it was the prevailing party, Pet. App.

17a, but found that because the EEOC never formally

asserted that CRST was engaged in a pattern-or-

practice of sex discrimination, the trial court erred to

the extent it awarded attorney’s fees on that basis.

Pet. App. 18a.

The Eighth Circuit also reversed the attorney’s fee

award as to the 67 individual claims that were dis-

missed because of the EEOC’s failure to satisfy its pre-

suit requirements. Pet. App. 23a-24a. Finally, it

6

vacated the lower court’s fee award with respect to the

individual claims dismissed on summary judgment,

and remanded the fee issue for a determination by the

district court whether each individual claim was

unreasonable under Christiansburg. Pet. App. 28a.

SUMMARY OF REASONS

FOR GRANTING THE WRIT

Review of the decision below is warranted to settle a

conflict in the courts on an issue that is of substantial

importance to the employer community regarding the

circumstances under which a prevailing defendant is

entitled to attorney’s fees under Title VII of the Civil

Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et

seq., as amended. Specifically, lower courts disagree

as to the propriety of an attorney’s fee award for the

U.S. Equal Employment Opportunity Commission’s

(EEOC) unreasonable litigation conduct stemming

from the agency’ failure to satisfy its pre-suit

administrative investigation requirements in advance

of bringing a lawsuit. In ruling that a prevailing

defendant may not be awarded fees on that basis, the

Eighth Circuit departs from decisions of the Fourth

and Ninth Circuits.

The EEOC was created by Congress to enforce

Title VII, which prohibits discrimination in the terms,

conditions, and privileges of employment on the basis

of race, color, religion, sex, or national origin. 42

U.S.C. § 2000e-2(a)(1). Title VII establishes “an

integrated, multistep enforcement procedure’ that ...

begins with the filing of a charge with the EEOC

alleging that a given employer has engaged in an

unlawful employment practice.” EEOC v. Shell Oil

Co., 466 U.S. 54, 62 (1984) (quoting Occidental Life

Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977) (footnote

omitted)).

7

The EEOC is authorized to bring a lawsuit against

an employer in federal court, but only after it

has discharged its statutory pre-suit administrative

requirements, including completing an investigation

of the charge. 42 U.S.C. § 2000e-5(b). In addition, the

permissible scope of a lawsuit brought by the EEOC is

limited to seeking relief on behalf of the “individuals

and wrongdoing [discovered] during the course of its

investigation.” Pet. App. 109a (citations omitted).

Title VII contains a fee-shifting provision that

allows a court to award reasonable attorney’s fees and

costs to the prevailing party, expressly providing that

the EEOC “shall be liable for costs the same as a

private person.” 42 U.S.C. § 2000e-5(k). As this Court

recognized, one of the purposes of the fee-shifting

provision is to “deter the bringing of lawsuits without

foundation’....” Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 420 (1978) (citation omitted). To that

end, the Court in Christiansburg held that a prevail-

ing defendant may be assessed attorney’s fees and

costs when a court determines that a claim “was

frivolous, unreasonable, or groundless, or that the

plaintiff continued to litigate after it clearly became

so.” 434 U.S. at 422.

Despite the importance of Title VII's administrative

scheme, the EEOC repeatedly has circumvented the

process in recent years by failing to investigate the

claims of all those on whose behalf it seeks relief,

and by persistently refusing to engage in meaningful

efforts to resolve such claims informally, without

resort to protracted litigation. The Fourth and Ninth

Circuits are of the view that, under Christiansburg,

a prevailing defendant is entitled to an award of

attorney’s fees for costs directly related to the EEOC’s

8

failure to discharge its mandatory pre-suit adminis-

trative duties.

The decision below is in direct conflict. Specifically,

even though the EEOC “wholly failed to satisfy its

statutory pre-suit obligations” as to at least 67 individ-

ual claims, Pet. App. 115a-116a, the Eighth Circuit

disagreed that the EEOC’s malfeasance did not

support an attorney’s fee award, because the EEOC’s

“failure to satisfy Title VII’s pre-suit obligations does

not constitute a ruling on the merits.” Pet. App. 23a-

24a.

The EEOC has embarked recently on an aggressive

litigation strategy. In its zeal to litigate large, high

profile class-based suits, the agency’ enforcement

priorities seemingly have moved away from informal

resolution of discrimination charges, as contemplated

by Title VII, and towards broad, systemic litigation.

The EEOC’s failure to comply in every instance with

its statutory duty to investigate and conciliate prior to

suit is particularly problematic where, as here, a

single individual charge is transformed by the EEOC

into a complex, time-consuming, and expensive law-

suit brought on behalf of approximately 270

individuals. Pet. App. 38a. This recurring pattern by

the EEOC of resorting to litigation prior to first

satisfying its pre-suit responsibilities provides compel-

ling support for utilizing the sanction of attorney’s fees

as a deterrent against inexcusable dereliction of the

agency’s compliance with Title VII.

9

REASONS FOR GRANTING THE WRIT

WHETHER AND TO WHAT EXTENT A PRE-

VAILING DEFENDANT IS ENTITLED UNDER

TITLE Vil TO AN ATTORNEY’S FEE AWARD

AS A RESULT OF THE EEOC’S UNREASON-

ABLE LITIGATION CONDUCT IS A RECUR-

RING ISSUE THAT IS OF SUBSTANTIAL

IMPORTANCE TO THE EMPLOYER COMMU-

NITY

This case presents a matter of national importance

to the more than half a million American employers,

large and small, that are subject to enforcement of

Title VII of the Civil Rights Act of 1964 (Title VII),

42 U.S.C. §§ 2000e et seq., as amended, by the U.S.

Equal Employment Opportunity Commission (EEOC).

Although Title VII mandates that the EEOC must

satisfy a number of interrelated, pre-suit administra-

tive requirements prior to commencing suit in federal

court, the lower courts are in disagreement regarding

whether an employer may recoup attorney’s fees and

costs expended in defending an EEOC suit that was

not first subject to a proper investigation and ulti-

mately was found to have been frivolous, unreason-

able, or groundless on that basis. Because of the

significance of this question to all employers subject to

Title VII, review by this Court is warranted.

10

A. The Eighth Circuit’s Holding Is In Direct

Conflict With Decisions By The Fourth

And Ninth Circuits Permitting Prevailing

Defendants To Recover Attorney’s Fees

For Claims Dismissed Because Of The

EEOC’s Failure To Satisfy Its Mandatory

Title VII Pre-Suit Administrative Inves-

tigation Procedures

Title VII prohibits discrimination in the terms,

conditions, or privileges of employment on the basis of

race, color, religion, sex, or national origin. 42 U.S.C.

§ 2000e-2(a)(1). The statute conta'ns a fee-shifting

provision that permits a court to award a prevailing

party reasonable attorney’s fees:

In any action or proceeding under this subchapter

the court, in its discretion, may allow the

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.

42 U.S.C. § 2000e-5(k).

In Christiansburg Garment Co. v. EEOC, this Court

enunciated the standard for assessing attorney's fees

and costs in favor of a prevailing defendant in a Title

VII case. 434 U.S. 412 (1978). The Court held that a

prevailing defendant is entitled to an award of

attorney's fees and costs when a court finds that the

claim “was frivolous, unreasonable, or groundless, or

that the plaintiff continued to litigate after it clearly

became so.” Jd. at 422. The Court reasoned that a

heightened burden is necessary so as not to “undercut

the efforts of Congress to promote the vigorous

enforcement of the provisions of Title VII.” Jd.

11

At the same time, the Court observed that “while

Congress wanted to clear the way for suits to be

brought under the Act, it also wanted to protect

defendants from burdensome litigation having no

legal or factual basis.” Jd. at 420. The Court also

noted that Title VII's attorneys fee provision

“explicitly provides that ‘the Commission and the

United States shall be liable for costs the same as a

private person.” Id. at 423 n.20 (citation omitted).

Thus, the Court found “no grounds for applying a

different general standard whenever the Commission

is the losing plaintiff.” Jd.

In addition, a court may order attorney's fees in

favor of a prevailing defendant “even if a plaintiffs

suit is not wholly frivolous.” Fox v. Vice, 131 S. Ct.

2205, 2214 (2011).2 “Fee shifting to recompense a

defendant (as to recompense a plaintiff) is not all-or-

nothing: A defendant need not show that every claim

in a complaint is frivolous to qualify for fees.” Id. The

fee provision thus “serves to relieve a defendant of

expenses attributable to frivolous charges. The

plaintiff acted wrongly in leveling such allegations,

and the court may shift to him the reasonable costs

that those claims imposed on his adversary.” Id.

(citation omitted).

? In Fox, the Court construed the attorney’s fee provision set

forth in 42 U.S.C. § 1988. This Court has noted that the fee-

shifting provisions in 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988

“are to be interpreted alike.” Independent Federation of Flight

Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989) (citation

omitted); see also Hanrahan v. Hampton, 446 U.S. 754, 758 n.4

(1980) (noting that § 1988 was patterned after § 2000e-5(k)).

12

1. The EEOC has a duty to investigate and

properly conciliate Title VII discrimi-

nation charges prior to filing suit

Title VII “sets out a detailed, multi-step procedure

through which the Commission enforces the statute’s

prohibition on employment discrimination.” Mach

Mining, LLC v. EEOC, 135 S. Ct. 1645, 1649 (2015);

see also EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984).

That multi-step administrative procedure begins with

the filing, service, and investigation of a discrimina-

tion charge, and concludes with mandatory, pre-suit

conciliation. 42 U.S.C. § 2000e-5(b).

When first enacted, Title VII only permitted the

EEOC to prevent and correct discrimination through

discrimination charge investigations and, where appro-

priate, “conference, conciliation, and persuasion.”

42 U.S.C. § 2000e-5(b). In 1972, however, Congress

amended Title VII to authorize the EEOC to sue

private employers in its own name, both on behalf of

alleged victims and in the public interest. Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-

261, 86 Stat. 103 (1972).

At the same time, Congress retained Title VII's

administrative enforcement scheme as a prerequisite

to suit. 42 U.S.C. § 2000e-5(f). As this Court has

observed:

When Congress first enacted Title VII in 1964 it

selected “(c)ooperation and voluntary compliance

... as the preferred means for achieving” the goal

of equality of employment opportunities. ...

Although the 1972 amendments provided the

EEOC with the additional enforcement power

of instituting civil actions in federal courts,

Congress preserved the EEOC’s administrative

13

functions in s 706 of the amended Act. Thus,

under the procedural structure created by the

1972 amendments, the EEOC does not function

simply as a vehicle for conducting litigation on

behalf of private parties; it is a federal admin-

istrative agency charged with the responsibility of

investigating claims of employment discrimina-

tion and settling disputes, if possible, in an

informal, noncoercive fashion. Unlike the typical

litigant ... the EEOC is required by law to refrain

from commencing a civil action until it has

discharged its administrative duties.

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367-68

(1977) (emphasis added) (citation omitted).

The EEOC’s procedural regulations also reflect this

Congressional mandate, providing that “(t]he inves-

tigation of a charge shall be made by the Commission

....” 29 C.F.R. § 1601.15(a) (emphasis added). Should

the EEOC find reason to believe discrimination

occurred, the agency may issue a determination only

“based on, and limited to, evidence obtained by the

Commission” during the investigation. 29 C.F.R.

§ 1601.21(a). “Where the Commission determines that

there is reasonable cause to believe that an unlawful

employment practice has occurred or is occurring, the

Commission shall endeavor to eliminate such practice

by informal methods of conference, conciliation and

persuasion.” 29 C.F.R. § 1601.24(a) (emphasis added).

Only when the EEOC is “unable to obtain voluntary

compliance,” 29 C.F.R. § 1601.25, through “informal

methods of conference, conciliation and persuasion”

may it initiate a public enforcement action. 29 C.F.R.

§ 1601.24(a). Accordingly, unlike private litigants, the

EEOC has a special obligation to carefully evaluate

14

the merits of every case before undertaking costly and

resource-intensive litigation.

2. Applying the standard enunciated by

this Court in Christiansburg, the

Fourth and Ninth Circuits permit

recovery of attorney’s fees when an

unsuccessful EEOC lawsuit followed a

failure to discharge pre-suit procedures

The EEOC generally is permitted to pursue in

litigation any statutory violation growing out of facts

uncovered during a “reasonable investigation” of an

underlying charge. See EEOC v. Delight Wholesale

Co., 973 F.2d 664, 668-69 (8th Cir. 1992). This

“reasonable investigation” rule restricts the EEOC

from altogether circumventing Title VII's “integrated,

multistep enforcement procedure,” Shell Oil, 466 U.S.

at 62 (citation omitted), by including in a lawsuit

matters that never were the subject of an inves-

tigation, reasonable cause determination, and con-

ciliation. See Delight Wholesale Co., 973 F.2d at 668-

69; EEOC v. Bailey Co., 563 F.2d 439, 446 (6th Cir.

1977); EEOC v. Sterling Jewelers, Inc., 3 F. Supp. 3d

57, 64 (W.D.N.Y. 2014), appeal filed, No. 14-1782 (2d

Cir. May 15, 2015); EEOC v. Outback Steak House of

Fla., Inc., 520 F. Supp. 2d 1250, 1264 (D. Colo. 2007);

EEOC v. Jillian’s of Indianapolis, Ind., Inc., 279 F.

Supp. 2d 974, 979-81 (S.D. Ind. 2003). As the Eighth

Circuit itself observed:

While “[t]he EEOC may seek relief on behalf of

individuals beyond the charging parties and for

alleged wrongdoing beyond those originally

charged,” it “must discover such individuals and

wrongdoing during the course of its investigation.”

***

15

“The relatedness of the initial charge, the EEOC’s

investigation and conciliation efforts, and the

allegations in the complaint is necessary to

provide the defendant-employer adequate notice

of the charges against it and a genuine

opportunity to resolve all charges through

conciliation.”

Pet. App. at 109a-110a (citations omitted).

It follows that dismissal of an EEOC lawsuit based

on claims that were not subject to proper investigation

justifies an award of attorney’s fees under this Court’s

decision in Christiansburg. Indeed, the Fourth and

Ninth Circuits have held that the EEOC’s failure to

satisfy its pre-suit administrative requirements can

support a finding that the claim was “frivolous,

unreasonable, or groundless” under Christiansburg,

thus entitling a prevailing defendant to attorney’s

fees.

In EEOC v. Propak Logistics, Inc., for instance, the

Fourth Circuit affirmed an attorney’s fee award to a

prevailing defendant in a class action case brought by

the EEOC, finding that “the EEOC acted unreason-

ably in filing the employment discrimination com-

plaint, because events that occurred during the

EEOC’s administrative investigation precluded the

EEOC from obtaining either injunctive or monetary

judicial relief.” 746 F.3d 145, 147 (4th Cir. 2014). In

awarding attorney’s fees to Propak, the lower court

found that the EEOC’s lawsuit “effectively was moot

at its inception,” id. at 152, in part because the agency

had not identified a class of victims eligible for

monetary relief during its investigation, yet never-

theless sued on their behalf. Jd. In affirming the fee

award, the Fourth Circuit observed that “the court’s

fee award reflected proper consideration of the

16

Christiansburg standard by assessing whether the

EEOC acted unreasonably in initiating the litigation.”

Id. (footnote omitted).

Concurring, Judge Wilkinson wrote separately “to

address an unfortunate implication in the [EEOC’s)

brief: that federal agencies, and the [EEOC] in par-

ticular, should be treated differently from private

parties with regard to attorneys’ fees determinations.”

Id. at 154. Recognizing that the Christiansburg

standard is aimed to deter unjustified litigation, Judge

Wilkinson stated that “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.” Id. at

155. “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.” Id. (citation

omitted).

Similarly, in EEOC v. Pierce Packing Co., the Ninth

Circuit affirmed the lower court’s grant of summary

judgment and award of attorney’s fees to the prevail-

ing defendant, in part because “not once has the EEOC

conducted its own statutorily mandated investigation

nor has it made a reasonable cause determination.”

669 F.2d 605, 608 (9th Cir. 1982) (citation omitted). It

observed, “Genuine investigation, reasonable cause

determination and conciliation are jurisdictional

conditions precedent to suit which are conspicuously

absent here.” Jd. In particular, as the district court

found, “[t]hese procedural and regulatory defects

committed by the EEOC were clearly cognizable at an

early stage in this litigation’s history. The EEOC’s

obvious disregard for such promulgated regulations is

the apex of unreasonableness. There is adequate

17

support in the record to uphold this finding.” Id. at

608-09 (citations omitted).

The Eighth Circuit’s decision below limits civil

rights fee awards to cases involving rulings “on the

merits,” which it has now determined excludes claims

dismissed due to the EEOC’s failure to meet its pre-

suit duties. Pet. App. 23a-24a. Because the decision

below is contrary to the principles established by this

Court in Christiansburg and conflicts with decisions of

the Fourth and Ninth Circuits on this issue, review by

this Court is warranted.

B. Precluding A Prevailing Defendant From

Recovering Attorney’s Fees When A Claim

Is Dismissed For The EEOC’s Failure To

Investigate Would Undermine Effective

Title VII Enforcement By Removing A

Powerful Disincentive Against Increas-

ingly Abusive Litigation Tactics By The

EEOC

1. The EEOC’s recent enforcement efforts

demonstrate both a focus on systemic

litigation and a disturbing trend

towards bringing suit without first

satisfying all of its pre-suit obligations

Review of the decision below is especially warranted

in light of the EEOC’s current enforcement strategy

that places particular emphasis on class-based

systemic and pattern-or-practice discrimination litiga-

tion.’ In its Strategic Enforcement Plan (SEP) for

8 According to the EEOC’s Strategic Enforcement Plan for

Fiscal Years 2013 — 2016, of particular interest to the EEOC are

“issues that will have broad impact because of the number of

individuals, employers or employment practices affected.”

18

Fiscal Years 2013-2016, for instance, the EEOC has

committed to progressively increasing the percentage

of systemic cases on its active litigation docket each

fiscal year.‘ In furtherance of that objective, the

agency has established a specific, numerical target

that it expects its enforcement staff to meet, largely

ignoring objections from the business community that

such an approach would encourage hasty, insufficient

systemic charge investigations and detract from

meaningful, pre-suit settlement efforts.° Although the

EEOC’s current SEP requires field offices to progres-

sively increase the percentage of systemic cases on

their active litigation dockets, it gives no indication

that pre-suit charge resolution or meaningful inves-

tigation are agency priorities. Such policies incen-

tivize staff to bypass investigation and pre-suit

conciliation in favor of high-profile, class-based

lawsuits.

To the extent that the EEOC has formalized

enforcement tactics that are at odds with the purposes

and objectives of Title VII, it is now more important

than ever that the courts retain the discretion to

EBOC, ma er set si Plan FY 2013-2016, available at

wales eT (last visited June 18,

* EEOC, SEP FY 2013-2016, available at http://www.eeoc.gov/

eeoc/plan/sep.cfm (last visited June 18, 2015).

5 The agency has exceeded the SEP active systemic litigation

targets in the last two fiscal years. See EEOC, Fiscal Year 2013

Performance and Accountability Report (Systemic Cases -—

Performance Measure 4), available at http://www.eeoc.gov/

eeoc/plan/2013par.cfm (last visited June 18, 2015) and EEOC,

Fiscal Year 2014 Performance and Accountability Report

= Cases ~ ener oe Measure 4), available at http://

206 load/2014par.pdf (last visited June 18,

19

sanction the agency for such litigation abuses. A

particularly effective deterrent is the award of

attorney's fees to a prevailing defendant where it is

determined that the EEOC’s failure to investigate

results in the filing, and eventual dismissal, of a

groundless lawsuit.

Moreover, as noted above, although the EEOC

generally is permitted to pursue in litigation any

statutory violation growing out of facts uncovered

during a “reasonable investigation” of an underlying

charge, the agency must actually investigate prior to

suit in order to invoke that rule. See Delight Wholesale

Co., 973 F.2d at 668-69. Despite Title VII's mandate

that the EEOC must investigate and conciliate prior

to resorting to litigation, the agency in recent years

has embarked on a disturbing pattern of “naming

everyone and asking questions later.” Pet. App. 190a.

See also Propak Logistics, Inc., 746 F.3d at 152

(dismissing lawsuit because EEOC had not identified

a specific class of victims during its investigation);

Sterling Jewelers, 3 F. Supp. 3d at 69 (dismissing

EEOC’s nationwide pattern-or-practice employment

discrimination claim for failure to meet pre-suit inves-

tigation requirements); EEOC v. Bloomberg L.P., 967

F. Supp.2d 802, 812-16 (S.D.N.Y. 2013) (recognizing

“where, as here, the EEOC completely abdicates its

role in the administrative process, the appropriate

remedy is to bar the EEOC from seeking relief. . . and

dismiss the EEOC’s Complaint(,)” and granting

summary judgment on EEOC’s claims for individual

relief because pre-suit investigation was class-wide

only); Jillian’s, 279 F. Supp.2d at 980 (granting sum-

mary judgment in favor of employer on nationwide

class allegations because “(t]he EEOC’s investigation

of the four charges was conducted entirely with

20

respect to Jillian’s Indianapolis. Its Amended Com-

plaint, alleging a nationwide class, has insufficient

basis in its actual investigation”).

The EEOC’s rush to litigate claims that it never

examined at the charge investigation stage, or failed

to attempt to resolve through conciliation, confirms

amici’s growing concern that the agency effectively

has abandoned its commitment to pursue meaningful

administrative charge resolution, choosing instead the

more expedient, high-profile litigation route. Indeed,

amici are extremely troubled by the EEOC’s recent

efforts to expand its own authority under Title VII,

while at the same time working to sharply curtail the

role of the courts in policing its enforcement activities.

See, e.g., Mach Mining, LLC v. EEOC, 135 S. Ct. 1645

(2015) (where the EEOC argued, unsuccessfully, that

its pre-suit conciliation efforts are not subject to

judicial review); Propak Logistics, Inc., 746 F.3d at 150

(where the EEOC argued, again unsuccessfully, that

the doctrine of laches can never be applied when the

government is the plaintiff).

2. Facilitating the award of attorney’s

fees to prevailing defendants based on

frivolous, unreasonable, or groundless

EEOC lawsuits stemming from a failure

to investigate would discourage the

agency from pursuing ill-conceived

litigation

Allowing the decision below to stand would invite

the EEOC to ignore its statutorily-mandated pre-suit

requirements without any meaningful consequence.

As this Court observed in Mach Mining, “[wle need

only know — and know that Congress knows — that

legal lapses and violations occur, and especially so

21

when they have no consequence.” Mach Mining, 135 S.

Ct. at 1652-53 (emphasis added).

The EEOC statutorily is required to satisfy all of its

administrative pre-suit requirements prior to filing

a lawsuit. Indeed, as the Eighth Circuit itself

acknowledged, “[t]he EEOC’s ability to bring suit and

the administrative process are ‘sequential steps in a

unified scheme for securing compliance with Title

VII.” Pet. App. 19a (citation omitted). This case

highlights the importance of putting into place

meaningful sanctions to prevent these types of

abuses, and thereby encourage compliance with the

“integrated, multistep enforcement procedure,” Shell

Oil, 466 U.S. at 62, mandated by Congress.

Awarding attorney’s fees to prevailing defendants

in such cases also provides a check on the extra-

congressional efforts by the EEOC to expand its own

enforcement authority. See Propak Logistics, Inc.,' 746

F.3d at 156 (Wilkinson, J., concurring) (recognizing

that “[t]here 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”); see also City of

Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878-79 (2013)

(Roberts, C.J., dissenting) (expressing concern regard-

ing “the danger posed by the growing power of

the administrative state ...,.” and describing “(t]he

collection of agencies housed outside the traditional

executive departments ... as the ‘headless fourth

branch of government,’ reflecting not only the scope of

their authority but their practical independence”)

(citation omitted).

22

Title VII actions often are complex, time-consuming,

and very costly to defend. This is especially true of the

substantial number of Title VII cases brought against

small to mid-sized employers whose litigation re-

sources often pale in comparison to those of the federal

government. See Christiansburg, 434 U.S. at 423 n.20

(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”). The rule created by the court below, if

allowed to stand, essentially would provide the EEOC

with a “get out of jail free card” — leaving a prevailing

defendant on the hook for substantial attorney’s fees

and costs for claims that never should have been

brought in the first place. See, e.g., Pet. App. 84a

(awarding CRST $4,189,296.10 in attorneys’ fees,

$91,758.46 in costs, and $413,387.58 in out-of-pocket

expenses); EEOC v. Peoplemark, Inc., 732 F.3d 584,

587, 591-92 (6th Cir. 2013) (affirming lower court’s

order that EEOC reimburse employer nearly $800,000

in attorney's fees and costs in having to defend against

Title VII lawsuit that EEOC continued to pursue even

after it should have known it had no merit); EEOC. v.

TriCore Reference Labs., 493 F. App’x 955, 960-61

(10th Cir. 2012) (upholding award of over $140,000 in

attorney’s fees and costs because the EEOC knew or

had reason to know that its lawsuit was “frivolous,

unreasonable, and without foundation”).

23

CONCLUSION

Accordingly, the petition for a writ of certiorari

should be granted.

KAREN R. HARNED

ELIZABETH MILITO

NATIONAL FEDERATION OF

INDEPENDENT BUSINESS

SMALL BUSINESS LEGAL

CENTER

1201 F Street, N.W.

Suite 200

Washington, DC 20004

(202) 406-4443

Attorneys for Amicus Curiae

National Federation of

Independent Business

Small Business Legal Center *Admitted Only in Maryland:

June 2015

Respectfully submitted,

RAE T. VANN

*AMY BETH LEASURE

Counsel of Record

NORRIS, TYSSE, LAMPLEY

& LAKIS, LLP

1501 M Street, N.W.

Suite 400

Washington, DC 20005

aleasure@ntll.com

(202) 629-5600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

practice supervised by

Partners of the Firm