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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2015

## Text

No. 14-1375

IN THE

Supreme Court of the Anited States

CRST VAN EXPEDITED, INC.,

Petitioner,

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

BRIEF FOR PETITIONER

JOHN H MATHIAS, JR.
JAMES T. MALYSIAK
JENNER & BLOCK LLP
353 N. Clark St.
Chicago, IL 60654
(312) 222-9350

January 19, 2016

PAUL M. SMITH

Counsel of Record
JESSICA RING AMUNSON
BENJAMIN M. EIDELSON*
JENNER & BLOCK LLP
1099 New York Ave., NW
Suite 900
Washington, DC 20001
(202) 639-6000
psmith@jenner.com

*Not admitted in DC;
supervised by principals of the
Firm.

ii
PARTIES TO THIS PROCEEDING

The only two parties to this proceeding are
identified in the case caption on the cover.

RULE 29.6 DISCLOSURE STATEMENT

Petitioner CRST Van Expedited, Inc. is the wholly
owned subsidiary of its parent corporation, CRST
International, Inc., which is a_ privately held

corporation. No publicly held corporation owns any of
CRST Van Expedited’s or CRST International’s stock.

iv

TABLE OF CONTENTS
QUESTION PRESENTED .................cccccsccosceseeseneereeseneeees i
PARTIES TO THIS PROCEEDING .00......e.cccccsceseseees ii
RULE 29.6 DISCLOSURE STATEMENT................... iii
TABLE OF AUTHORITIES ..............:.cccscccceocecceseeseneeee vii
Te 1
Te 1
rar ecereeneneenenensnssssenssconneaens 1
EE 4
A. Bhatwtory Back Mround ...2..ccccccccccccscceccsscrscesscsesseseess 4
Le 8
ne 8
2. EEOC Investigation And Prelimi
PYOCOOGINGE ...<ccccccccecreseeseeee hireecieneenennennns 9
3. District Court Litigation And
Discovery Proceedings ...............-ssseeeeseeeee 10
4. Dismissal For Failure To Satisfy Pre-
a 15
5. First Appeal And Remand.....................0000+« 18
6. Decision Under Review....................c-c-es-esee 20
SUMMARY OF ARGUMENT ....00........:c.cccccssssssssseseesees 22

ee 26

I.

Il.

Vv

Neither Section 706(k) Nor This Court’s
Decision In Christiansburg Requires That A
Defendant Prevail “On The Merits” In Order

I oa icieniiiiaiiinnaiinieriiiiiniinrinemntmnei 26

A. Section 706(k) Authorizes An Award Of

Fees To Any “Prevailing Party.”.......................- 27

B. District Courts May Award Fees To
Prevailing Defendants Whether Or Not

They Prevail “On The Merits.” ...................cce0000+ 30

1. The Eighth Circuit’s Rule Has No
Basis In Section 706(k) And Conflicts

WER Cher tatiet i000 .cccceccccscsccssccscescsesessesecsess

2. Imposing A “Merits-Only” Restriction
On Attorney’s Fee Awards Would
Undermine The Policy Of Section

Pe ccenmenmannmntememnmenenen 37

Even If Section 706(k) Could Be Read To
Require That A Defendant Prevail “On The
Merits,” CRST Prevailed On The Merits

EE ee aoe 41

A. The Pre-Suit Requirements Are
Elements Of The EEOC’s Cause Of

pe ae reer ae a ne 42

B. The Pre-Suit Requirements Are Not
Claim-Processing Rules, But Are
Mandatory, Substantive Limitations On
Liability In Cases Brought By The

ade cncenssenecumsvsomsevsusmmensnenasssnesmmncsessscemsasemecseneety 48

vi
C. The Pre-Suit Requirements Serve To
Limit The EEOC’s Enforcement
Authority To Potentially Meritorious
Claims, And Here The EEOC Admitted
That It Did Net First Determine
Whether Its Claims Were Potentially
I counscsiniantusnineciiniantiinnnatsibiiendiineemmenanaie 51

CIES ccccrnscessnnnsennnssenmnssenmseenamencesmnmemensemennsen 57

vii

TABLE OF AUTHORITIES

CASES

Airframe Systems, Inc. v. L-3
Communications Corp., 658 F.3d 100 (1st

Eau a ciantassiasintncneresnsceneinenintnnitmateaienenendaniateiesnsnees 47
Arbaugh v. Y & H Corp., 546 U.S. 500

—__ en NT 25, 42, 43, 46, 47
Bell Atlantic Corp. v. Twombly, 550 U.S. 544

IIa Ta nennrnncsrenntenenmsennntttnubeiainanintinaaininntesniinsneemnnes 51
Brubaker v. City of Richmond, 943 F.2d 1363

IE HI i iintenstrensiecersiennestssonnneenanitimnmineinccenanetiat 34

Buckhannon Board & Care Home, Inc. v.
West Virginia Department of Health &
Human Resources, 532 U.S. 598 (2001) .23, 28, 29

Burlington Northern Railroad Co. v. Woods,

ee We ee hintiisaininiitiesencsitapicninsenbiiiininstinbentmatanss 34
C.W. v. Capistrano Unified School District,

784 F.3d 1237 (9th Cir. 2015)............c.ccccsecscsecereees 33
Christiansburg Garment Co. v. EEOC, 434

ee a cniiinsitinnercinnnninncaistonzaiinanisoniniiia passim
Cote v. James River Corp., 761 F.2d 60 (1st

outs Lie ccinsibinnanasintesiininnsieneniaisiiasinitininieiiacstinaniabeeednes 33
CTS Corp. v. Waldburger, 134 S. Ct. 2175

ETE ictieeiniveneninivesilaienmimeniemimenpenmenseneeds 50

RD 33-34
Dura Pharmaceuticals, Inc. v. Broudo, 544

SE 46
EEOC v. Agro Distribution, LLC, 555 F.3d

8 39
EEOC v. Asplundh Tree Expert Co., 340 F.3d

ee ee NE SE tecstentrirnnnnnennsentintcnetttmmmnnmenes 39
EEOC. v. Bellemar Parts Industries, Inc.,

868 F.2d 199 (6th Cir. 1989)............cccscsceeeesesceeees 36
EEOC v. General Electric Co., 5382 F.2d 359

Re Se iencetieenscescnsensetiiiicnntarieinianiininmninnnsened 6
EEOC v. New Prime, Inc., 42 F. Supp. 3d

Se Cn SN SE i icnintereninibeinensninconnnaniememenmens 9
EEOC v. Pierce Packing Co., 669 F.2d 605

Sn Mi eieiciettitinriarininnecndaseaiainiinaanienniamanuanmases 39
EEOC v. Propak Logistics, Inc., 746 F.3d 145

a GUI HEE asteicnnitninacnsinttierniceanensticiacmapeennteeannenanned 33
EEOC v. Shell Oil Co., 466 U.S. 54 (1984).......... 36, 37
Farrar v. Hobby, 506 U.S. 103 (1992) .........ccccseeseseree 28
Fermin v. National Home Life Assurance

Co., 15 F.3d 180 (5th Cir. 1994)... ecceeceseeees 34
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).....30, 32
Fox v. Vice, 131 S. Ct. 2205 (2011)............cceccccereeeereeee 41
General Telephone Co. of the Northwest, Inc.

v. EEOC, 446 U.S. 318 (1980).............ccc00e 6, 43, 52

Gerstein v. Pugh, 420 U.S. 103 (1975) ............cccceceeees 52

ix
Hallstrom v. Tillamook County, 493 U.S. 20

iinet ta iniatace iain ieaiiteaeans 48, 49
Hamer v. Lake County, 819 F.2d 1362 (7th

St iin tscirinatiatiianstiaanitabieeeninaatinneiainiiuseniaediataanseiniteias 33
Henderson ex rel. Henderson v. Shinseki, 562

ee I sceiricicnattanriaainsinarieaniaceniaiatl 25, 48, 50
Hewitt v. Helms, 482 U.S. 755 (1987)............- 23, 28, 29
Holmes v. Securities Investor Protection

Corp., 503 U.S. 258 (1992)..........ssssssssssereeserseeeeees 46

Hutcherson v. Board of Supervisors of
Franklin County, 742 F.2d 142 (4th Cir.

Tia icrinssibseninninninmenneininanneininbiiueibiemimmeenen 33
Independent Federation of Flight Attendants

v. Zipes, 491 U.S. 754 (1989)......ccecceccessesseeseeeeeee 30
International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977) ............000 6, 7
Latin American Music Co. v. Media Power

Group, Inc., 705 F.3d 34 (1st Cir. 20193).............. 47

Lexmark International, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377
als chisteiniinetaieiia tide iilieeasintitiiieainiaieaiad 43, 44, 45

Ee eneree 43, 48, 49, 50, 54
Maher v. Gagne, 448 U.S. 122 (1980)............ceeceeeeeees 28

Marquart v. Lodge 837, International
Association of Machinists and Aerospace
Workers, 26 F.3d 842 (8th Cir. 1994)..........s00000 29

x
Martin v. Franklin Capital Corp., 546 U.S.

SD Ga cesscenecenemnnenesseenennmennnsssenssmesssesests 37
McDonnell Douglas Corp. v. Green, 411 U.S.

ee 52
Newman v. Piggie Park Enterprises, Inc., 390

re GP Gee cnnserenscssasnsssmensnsemacnsseennesssemmnss 26
Occidental Life Insurance Co. of California v.

EEOC, 432 U.S. 355 (1977)......ccscecsesesees 5, 6, 48, 51
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154

a 46, 47
Roadway Express, Inc. v. Piper, 447 U.S. 752

GEE ccnssnecscunsenennsnnnentenseninpmeneiinmnannneneaes 32
Sole v. Wyner, 551 U.S. 74 (2007) ..........ccccssceseseseceesees 28
Thompson v. North American Stainless, LP,

562 U.S. 170 (2011)............scssceseeeceeceees 25, 43, 44, 45
U.S. Steel Corp. v. United States, 519 F.2d 359

ee 36
United States v. Hayes, 555 U.S. 415 (2009)............. 46
United States v. Zucca, 351 U.S. 91 (1956)......... 19, 52

STATUTES

eT ee 46
eee 46
Re 1
a ais Be eee 4
42 U.S.C. § BOODS-A(R) ..0ccccecceccceccccccecsrccscersccsecsscssscsecsess 4

42 U.S.C. § 2000€-5(D) ..........ceccsseseeeees 2, 5, 24, 38, 48, 55

42 U.S.C. § 2000e5-(f)(1) ........ 3, 5, 17, 43, 44, 48, 54, 55
42 U.S.C. § 2000€-5(K) ........recererereseeserereees 1, 7, 22, 26, 36
ee i icticiterrtenntennnnnisnimnimninsieninmmenn 36
I eiicesicenssentnnrniiciiiaienicininenninaninsiiis 36
ess rccrccnenesnitencnnnniinamiinetieannicetiil 36
LF 8? * SOE 49
re iii cnstiiniininitnineiiiniennontnimnnanies 49
Civil Rights Act of 1964, Pub. L. No. 88-352,

ho 8 ee 5
Civil Rights Act of 1964, Pub. L. No. 88-352,

a 4 8 ee 5
Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 4, 86 Stat. 103, 104.............. 6
Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 5, 86 Stat. 103, 107.............. 7

LEGISLATIVE MATERIALS

110 Cong. Rec. 6534 (1964) (statement of Sen.

ID cecensassntentunteenenniemmnnmcenanemennnmmennens 41
110 Cong. Rec. 13,668 (1964) (statement of

Be ectstnencsccctiniecenicnneiniinennseninennman 31
118 Cong. Rec. 588-89 (1972) (statement of

A, ID ieritencccctcnnenssetncctennennsstmiemmnmneress 38
118 Cong. Rec. 671 (1972) (statement of Sen.

Serr T TInt Uniicitiscinsiavctasentineipectniateesiinetinieesinentinnnionn 52
118 Cong. Rec. 7563 (1972) (statement of Rep.

Pe rnticsnenccnstestensitsiencmnnnitinnsiniemennnnensianmenienion 38

OTHER AUTHORITIES

Consent Decree, EEOC v. Gordon Trucking,
Inc., Case No. 3:04-cv-5646 (W.D. Wash.
Oct. 4, 2004) (reprinted in ECF No. 150-5

Consent Decree, EEOC v. Swift
Transportation Co., Inc., Case No. 3:97-
cv-965 (D. Or. Oct. 28, 1998) (reprinted in

ECF No. 150-5 at 885)............ccsscee socsssssesssseserees

OPINIONS BELOW

The Eighth Circuit’s opinion (Pet. App. la) is
reported at 774 F.3d 1169 (8th Cir. 2014). The opinion of
the United States District Court for the Northern
District of Iowa (Pet. App. 33a) is unreported but is
available at 2013 U.S. Dist. LEXIS 107822 (N.D. Iowa
Aug. 1, 2013). The Eighth Circuit’s earlier opinion (Pet.
App. 86a) is reported at 679 F.3d 657 (8th Cir. 2012).
The district court’s earlier opinion (Pet. App. 164a) is
unreported but is available at 2009 U.S. Dist. LEXIS
71396 (N.D. Iowa Aug. 13, 2009).

JURISDICTION

The Eighth Circuit entered its judgment on
December 22, 2014, and denied petitioner’s timely
petition for rehearing en banc on February 20, 2015.
Petitioner filed a timely petition for certiorari on May
19, 2015, which this Court granted on December 4,
2015. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).

STATUTES INVOLVED

Section 706(k) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5(k), provides that:

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 the costs the same as a private person.

2

Section 706 of Title VII, 42 U.S.C. § 2000e-5,
provides in pertinent part that:

(b) ... Whenever a charge is filed by or on behalf
of a person claiming to be aggrieved, . . . alleging
that an employer ... has engaged in an unlawful
employment practice, the Commission shall
serve a notice of the charge (including the date,
place and circumstances of the alleged unlawful
employment practice) on such employer...
(hereinafter referred to as the “respondent”)
within ten days, and shall make an investigation
thereof. ... If the Commission determines after
such investigation that there is not reasonable
cause to believe that the charge is true, it shall
dismiss the charge and promptly notify the
person claiming to be aggrieved and the
respondent of its action.... If the Commission
determines after such investigation that there is
reasonable cause to believe that the charge is
true, the Commission shall endeavor to eliminate
any such alleged unlawful employment practice
by informal methods of conference, conciliation,
and persuasion. ... The Commission shall make
its determination on reasonable cause as
promptly as possible and, so far as practicable,
not later than one hundred and twenty days
from the filing of the charge or, where applicable
under subsection (c) or (d) of this section, from
the date upon which the Commission is
authorized to take action with respect to the
charge.

3

(f)(1) If within thirty days after a charge is filed
with the Commission or within thirty days after
expiration of any period of reference under
subsection (c) or (d) of this section, the
Commission has been unable to secure from the
respondent a conciliation agreement acceptable
to the Commission, the Commission may bring a
civil action against any respondent not a
government, governmental agency, or political
subdivision named in the charge. ... If a charge
filed with the Commission pursuant to
subsection (b) of this section is dismissed by the
Commission, or if within one hundred and eighty
days from the filing of such charge or the
expiration of any period of reference under
subsection (c) or (d) of this section, whichever is
later, the Commission has not filed a civil action
under this section ..., or the Commission has
not entered into a conciliation agreement to
which the person aggrieved is a party, the
Commission ... shall so notify the person
aggrieved and within ninety days after the
giving of such notice a civil action may be
brought against the respondent named in the
charge (A) by the person claiming to be
aggrieved or (B) if such charge was filed by a
member of the Commission, by any person
whom the charge alleges was aggrieved by the
alleged unlawful employment practice.

4
STATEMENT

In the underlying litigation before the district court,
the Equal Employment Opportunity Commission
(EEOC) admitted that it had asserted 67 individual
claims of sexual harassment against CRST under Title
VII without first investigating the claims, determining
whether there was reasonable cause to believe them, or
attempting to conciliate them, as Title VII requires.
The district court therefore dismissed those claims, and
the Eighth Circuit affirmed. Based on those rulings,
which are no longer at issue, Petitioner sought, and the
district court awarded, attorney’s fees and costs
pursuant to Title VII and this Court’s decision in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412
(1978). The Eighth Circuit, however, reversed the fee
award based on that circuit’s rule that fee awards to
defendants require a resolution of the case “on the
merits.” As shown infra, there is no such limitation in
the statute or in this Court’s precedents. Nor would it
make sense to create one. And even if there were a
requirement that defendants prevail “on the merits” in
order to qualify for fees, such a rule would not bar the
award in this case.

A. Statutory Background

Title VII of the Civil Rights Act of 1964 prohibits
employment discrimination on the basis of race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2.
Title VII also created the EEOC. Jd. § 2000e-4(a).

Title VII’s enforcement procedure begins when a
“person claiming to be aggrieved” by an “unlawful
employment practice” files a charge with the EEOC.

5

Id. § 2000e-5(b). The statute provides that the EEOC
“shall serve a notice of the charge” on the employer
(including “the date, place and circumstances of the
alleged unlawful employment practice”) and that the
EEOC “shall make an investigation.” Jd. If the EEOC
“determines after such investigation that there is not
reasonable cause to believe that the charge is true,” it
dismisses the charge and notifies the parties. Jd. The
individual claiming to be aggrieved may then sue the
employer in district court. Jd. § 2000e-5(f)(1). If,
however, the EEOC determines “that there is
reasonable cause to believe that the charge is true,” it
“shall endeavor to eliminate any such alleged unlawful
employment practice by informal methods of
conference, conciliation, and persuasion.” Jd. § 2000e-

5(b).

Under the 1964 Act, the EEOC had no authority to
bring suit if conciliation was unsuccessful. Rather,
“(tlhe failure of conciliation efforts terminated the
involvement of the EEOC.” Occidental Life Ins. Co. of
Cal. v. EEOC, 482 U.S. 355, 358-59 (1977). When
conciliation failed, the EEOC notified the individual
claiming to be aggrieved, and he or she could then bring
a civil action in district court. Jd.; see Civil Rights Act
of 1964, Pub. L. No. 88-352, § 706(e), 78 Stat. 241, 260.
The 1964 Act did, however, empower the Attorney
General to bring a civil action on behalf of the United
States if he or she had “reasonable cause to believe”
that an employer was intentionally “engaged in a
pattern or practice of resistance to the full enjoyment
of any of the rights secured by this title.” Jd. § 707(a),
78 Stat. at 261 (codified at 42 U.S.C. § 2000e-6(a)); see,

6

e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 328-30 (1977).

In 1972, Congress modified the statute in two
significant respects. First, it authorized the EEOC to
bring a civil action against the employer named in a
charge if, after completing the above procedures, the
EEOC was “unable to secure from the respondent a
conciliation agreement acceptable to” it. Equal
Employment Opportunity Act of 1972, Pub. L. No. 92-
261, § 4, 86 Stat. 103, 104 (codified at 42 U.S.C. § 2000e-
5(f)(1)). The amended Act thus established “an
integrated, multistep enforcement procedure
culminating in the EEOC’s authority to bring a civil
action in a federal court.” Occidental Life, 432 U.S. at
359. The EEOC must first investigate the charge; next
determine if there is reasonable cause to believe that it
is true; and then attempt to conciliate any credible
claims it identifies. See id. Only if the EEOC completes
these procedures and its conciliation efforts are
unsuccessful can it file suit based on those identified

claims. See id.’

' As this Court has noted, the courts of appeals have held that the
EEOC may litigate claims that it identifies in a reasonable
investigation of the original charge, even if those claims were not
raised in the charge itself. See Gen. Tel. Co. of the Nw., Inc. v.
EEOC, 446 U.S. 318, 331 (1980). This “reasonable investigation”
rule still requires that all claims be subject to an investigation, a
reasonable-cause determination, and a conciliation effort by the
EEOC before it brings suit. See, e.g., EEOC v. Gen. Elec. Co., 532
F.2d 359, 366 (4th Cir. 1976), cited in Gen. Tel. Co. of the Nw., Inc.,
446 U.S. at 331.

7

Second, while preserving the separate statutory
provision for “pattern or practice” actions, Congress
transferred that enforcement authority from the
Attorney General to the EEOC. Pub. L. No. 92-261, § 5,
86 Stat. at 107 (codified at 42 U.S.C. § 2000e-6(c), (e));
see Int’l Bhd. of Teamsters, 431 U.S. at 328 n.1. When it
brings a pattern-or-practice suit pursuant to the
separate statutory authorization in Section 707, the
EEOC “is not required to offer evidence that each
person for whom it will ultimately seek relief was a
victim of the employer’s discriminatory policy.” Int'l
Bhd. of Teamsters, 431 U.S. at 360. Rather, the EEOC’s
“burden is to establish a prima facie case that such a
policy existed. The burden then shifts to the employer
to defeat the prima facie showing of a pattern or
practice by demonstrating that the Government’s proof
is either inaccurate or insignificant.” Jd.

The statute has always provided, as ii does now,
that in any Title VII action, “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.” 42 U.S.C. §2000e-5(k). In Christiansburg
Garment Co. v. EEOC, 484 U.S. 412, 421 (1978), this
Court held that a district court may award an
attorney’s fee to a prevailing defendant under this
provision only “upon a finding that the plaintiff's action
was frivolous, unreasonable, or without foundation.”

8
B. Proceedings Below
1. Background

CRST is a family-owned long-distance trucking
company headquartered in Cedar Rapids, Iowa. JA
397a. CRST employs two-driver teams to transport
shipments throughout the nation on large tractor-
trailer trucks. /d.

Working conditions for CRST’s long-haul drivers
are unlike those for many jobs. The two-driver teams
spend up to twenty-two hours a day together operating
a large truck. The truck’s cab, with two front seats and
a two-bunk berth area, has both driving and living
functions. Trips may last up to twenty-one days, and
drivers usually spend no time with their families during
such trips. Access to restrooms and showers is limited.
Because drivers are continuously on the road, their
supervisors seldom see them working together. Jd. at
397a-398a.

CRST employs three categories of team drivers: (i)
trainees; (ii) lead drivers who provide the training; and
(iii) fully qualified co-drivers. All three categories of
drivers report to dispatchers. Jd. at 398a.

The EEOC interprets Title VII to require that
trucking companies compose their driver teams
without regard to sex. In 1997 and 2004, the EEOC
sued two trucking firms for implementing same-sex
assignment policies, seeking punitive damages. Both
cases were settled with consent decrees that “prohibit[]
the Company from preferring same-sex assignments of
drivers during training.” Consent Decree 5, EEOC v.
Gordon Trucking, Inc., Case No. 3:04-cv-5646 (W.D.

9

Wash. Oct. 4, 2004) (reprinted in ECF No. 150-5 at 124,
128); Consent Decree 5, EEOC v. + ° Transportation
Co., Inc., Case No. 3:97-cv-965 (D. Or. Oct. 28, 1998)
(reprinted in ECF No. 150-5 at 85, 89). The EEOC
recently prevailed in another challenge to a trucking
company’s same-sex driver team policy. EEOC v. New
Prime, Inc., 42 F. Supp. 3d 1201 (W.D. Mo. 2014). In
that case, the court agreed with the EEOC that such
policies are “facially discriminatory” and cannot be
justified by a concern to protect drivers from sexual
harassment. /d. at 1213-14.

Based on the EEOC’s requirements, CRST has
adopted a gender-neutral policy in composing its driver
teams. Consequently, women and men often drive
together. JA 401a. At the time of the events at issue,
14% of CRST’s drivers were women, which was “more
than three times as many women as an expert would
predict” based on “the availability of women in the
relevant labor market.” Jd. at 400a-401a.

2. EEOC Investigation and Preliminary
Proceedings

On December 1, 2005, Monika Starke, a CRST
driver, filed a Charge of Discrimination with the
EEOC, alleging two different incidents of sexual
harassment by two different male lead drivers. Pet.
App. 165a-166a. The EEOC undertook an investigation
of Ms. Starke’s allegations, and CRST voluntarily
provided a variety of requested information. Jd. at
167a-173a & n.6. Over the next several months, the
EEOC made additional requests for information about,
inter alia, other women who had driven with the
alleged harassers; other charges of harassment that

10

CRST had received from any government agency
within the past five years; and the driving histories of
all female drivers employed since 2005. Jd. at 171a-180a.
CRST voluntarily provided all of this information as
well. Jd. at 179a-180a.

On July 12, 2007, the EEOC issued a Letter of
Determination finding “reasonable cause to believe”
that CRST “subjected [Starke] to sexual harassment,”
and also that CRST “has subjected a class of employees
and prospective employees to sexual harassment.” JA
8lla. The parties tried and failed to conciliate Ms.
Starke’s claim. Pet. App. 183a. No other individual
claims were raised or discussed during the conciliation
process. When CRST inquired as to the purported
“class” identified in the EEOC’s Letter of
Determination, the EEOC responded that it “was not
able to provide names of all class members” or even “an
indication of the size of the class.” Jd. at 182a (quoting
JA 282a (Decl. of EEOC Investigator Bloomer)).

3. District Court Litigation and Discovery
Proceedings

On September 27, 2007, the EEOC filed a single-
count complaint under Section 706(f) of Title VII on
behalf of Ms. Starke and a class of “similarly situated”
but unidentified female employees of CRST. JA 783a-
809a. The EEOC sought injunctive relief and
compensatory and punitive damages for Ms. Starke and

* The EEOC subsequent!y made a reasonable-cause determination
with respect to one other individual charge of sexual harassment
filed by another CRST driver, Remcey Peeples. The EEOC
attempted to conciliate that claim in October 2007. JA 283a.

11

other women who had allegedly been sexually harassed
while they were employed by CRST. The complaint did
not make any allegations that CRST had engaged in a
“pattern or practice” of discrimination, and it did not
invoke Section 707 of Title VII. See id. at 792a-799a.

As the district court explained, neither the EEOC’s
Letter of Determination nor its complaint identified
any individual claimants other than Ms. Starke or
provided any “indication of how many ‘similarly
situated female employees’ the EEOC alleged to exist.”
Pet. App. 186a-187a. The court adopted a discovery
plan based on its impression that “the number of
allegedly aggrieved persons was relatively small.” Jd.
at 187a. In the course of discovery, however, “it became
clear that the EEOC did not know how many allegedly
aggrieved persons on whose behalf it was seeking
relief,” and that “the EEOC was using discovery to find
them.” Jd. at 188a. For example, between May and
September of 2008, the EEOC sent 2,730 letters to
former female employees of CRST soliciting them to
participate in the lawsuit. Jd.

Fearing that “this case would drag on for years as
the EEOC conducted wide-ranging discovery and
continued to identify allegedly aggrieved persons,” the
court set a deadline of October 15, 2008, for the EEOC
to identify all of the individuals whose claims it would
pursue in this case. Jd. at 188a-189a. Roughly one week
before the deadline, the EOC had identified 79 claims.
Id. at 189a. In the final days, however, the EEOC
began identifying large numbers of claims very quickly.
Id. at 190a. The EEOC ultimately named 270

12

individuals who had allegedly been sexually harassed
by male CRST drivers. Jd. at 189a.

Because the EEOC identified so many claims in
such a short period of time, CRST moved for an order
to show cause why the hastily identified claims should
not be dismissed on the ground that the EEOC could
not possibly have investigated them or adequately
determined their validity. In response, the EEOC
asserted that “[eJach class member named by the
EEOC ... has provided credible evidence of sexual
harassment.” JA 689a.° The EEOC also asserted that it
intended to litigate this matter as “a pattern or practice
case.” Id.

The district court accepted the EEOC’s
“represent[ation] to the court that ... it had a good-
faith belief that each and every one of the
approximately 270 women disclosed to CRST has an
actionable claim fcr sex discrimination.” /d. at 655a. But
the court warned the EEOC that if it later turned out
that its claims were not reasonably grounded, CRST
could file “an appropriate motion.” Jd. at 656a. The
district court also advised CRST that, “({clonsistent
with the EEOC’s representations to the court, CRST
may assume with some certainty that this is
approximately a 270-person pattern-or-practice case.”
Id. at 657a.

* The EEOC noted one exception: it had named 56 women with
whom it had not yet had “personal contact,” but as to whom it
nonetheless “ha[d] a good faith belief that they were likely victims
of sexual harassment.” JA 696a.

13

The number of claimants was reduced, however,
when the district court dismissed 99 of the EEOC’s
original 270 individual claims as a discovery sanction—
which the EEOC did not appeal—because the claimants
did not appear for their depositions. Pet. App. 192a.
The EEOC unilaterally dropped 18 other claims. That
left 154 claimants, each of whom CRST deposed.

After discovery closed, CRST moved for summary
judgment with respect to the EEOC’s contention that
CRST had engaged in a “pattern or practice” of
discrimination, as well as with respect to a majority of
the EEOC’s individual claims. JA 30a-34a.

In ruling on CRST’s pattern-or-practice motion, the
court emphasized that “[tJhe EEOC did not plead 4
violation of § 707, and the phrase ‘pattern or practice’—
a phrase with which the EEOC is familiar—appears
nowhere in the EEOC’s Complaint.” Jd. at 382a.
“(M]Juch confusion ha[d] ... crept into this case,”
however, through the EEOC’s repeated use of “pattern
or practice” terminology in its briefing, which raised
the concern that it was “pursuing matters in this case
that it did not plead or allege in [its] Complaint.” Jd.
The district court noted that it appeared “the EEOC is
attempting to have its cake and eat it too,” by
“attempting to avail itself of the Teamsters burden-
shifting framework yet still seek compensatory and
punitive damages under § 706.” Jd. at 383a.

The court explained that it would bypass the “cloud
of confusion” by simply assuming that the EEOC was
entitled to argue a “pattern or practice” theory of
liability. Jd. The court then rejected that theory on the
merits. In particular, the court found that CRST’s

14

written anti-harassment policy and its enforcement of
that policy satisfied Title VII’s requirements, id. at
429a-431a, and that the incidence of allegations of
sexual harassment at CRST was too low to suggest any
wrongful pattern or practice, id. at 43la-433a. The
court therefore concluded that the EEOC had not
established even a prima facie case of a pattern or
practice of tolerating sexual harassment. Jd. at 429a;
see id. at 433a (explaining that “the EEOC’s argument
boils down to little more than its bald assertions”). The
court therefore held that “[t]o the extent that the
EEOC asserts a ‘pattern or practice claim’ in this
litigation against CRST, such claim is dismissed with
prejudice.” Jd. at 442a.

The district court also granted summary judgment
to CRST with respect to 87 of the EEOC’s remaining
154 individual claims. Because CRST does not operate a
large common workplace, such as a factory or office,
each of the claims was based on unique facts, including
different female drivers, alleged harassers, trucks,
locations, times, and types of alleged harassment. The
grounds for the court’s summary judgment rulings
varied from claim to claim and included that the alleged
harassment was not severe or pervasive; that the
female drivers had not complained of harassment when
CRST could have acted to semedy it; that CRST had
adequately responded when it did receive timely
complaints; and that some claims were time-barred.‘

‘ The district court’s summary judgment rulings on the EEOC’s
individual claims are included in the Joint Appendix. See JA 312a-
346a (statute of limitations); JA 292a-31la (judicial estoppel); JA
223a-274a (interveners’ claims); JA 205a-222a (failure to report or

15

4. Dismissal For Failure To Satisfy Pre-Suit
Obligations

After the summary judgment rulings, 67 individual
claims remained. Although the EEOC’s class-wide
“pattern or practice” theory had been rejected, the
EEOC persisted in pressing these claimants’
allegations, seeking to “present separate claims for
each” at trial based on their particular facts. JA 348a
(EEOC’s Resistance to Mots. In Limine). CRST moved
to dismiss these claims on the ground that the EEOC
had not fulfilled its statutory obligations to investigate
the facts, determine whether there was reasonable
cause to believe that the complainants’ allegations were
true, and then, if so, attempt to conciliate their claims
before bringing suit on their behalf.

In response to CRST’s motion, the district court
required the EEOC to specify whether and when it had
investigated, found reasonable cause, and attempted to
conciliate each of the claims. Jd. at 278a-279a. In its
submission, the EEOC conceded that, with respect to
the “individual claim[s] of sex harassment” brought by
each of the remaining 67 women, it had made “no
separate investigation ... prior to litigation,” reached
“no separate Reasonable Cause Determination,” and
attempted “no separate conciliation.” Supp. App. 5-42.

effective CRST response to reported harassment); JA 186a-204a
(alleged harassment not severe or pervasive); JA 175a-185a (two
or more grounds).

* The EEOC also conceded that it did not investigate, find
reasonable cause, or attempt to conciliate any of the other claims

resolved on summary judgment, with the exception of its two
claims on behalf of Ms. Starke and Ms. Peeples. See JA 10la

16

However, the EEOC argued that, because it
investigated Ms. Starke’s charge of sexual harassment
against CRST and included an undefined “class of
employees” in its Letter of Determination for Ms.
Starke’s charge (as well as in another Letter for one
other individual charge), the EEOC was not required to
satisfy the pre-suit requirements for the hundreds of
other individual claims that it added in the course of
litigation.”

The district court rejected the EEOC’s argument.
As the court explained, the EEOC may pursue related
claims that emerge in its pre-suit investigation, even if
they are not raised in the original charge, as long as
these claims are “included in the reasonable cause
determination and subject to a conciliation proceeding.”
Pet. App. 199a (quoting EEOC v. Delight Wholesale
Co., 973 F.2d 664, 668-69 (8th Cir. 1992)). But, the court
held, the EEOC may not avoid those requirements by
including a “vague reference to a ‘class’ in the Letter of
Determination” and then projecting back into that
“class” hundreds of individual Section 706 claimants
whom it discovers later. Jd. at 21la-212a; see id. at 206a
n.21. In effect, the court concluded, the EEOC was
seeking to “bootstrap the investigation, determination

(EEOC Reply Br. in No. 13-3159 (8th Cir.)). CRST has not sought
to recover its fees with respect to the EEOC’s claims on behalf of
Ms. Peeples or Ms. Starke.

* The EEOC did not argue that it investigated a pattern-or-
practice claim against CRST, and the administrative record does
not reveal any investigation of such a claim. See ECF No. 244-2. As
noted below, the EEOC has disavowed any pattern-or-practice
claim in this case. See infra at 20.

17

and conciliation of the allegations of Starke and a
handful of other allegedly aggrieved persons into a
§ 706 lawsuit with hundreds of allegedly aggrieved
persons.” Jd. at 206a.

Based on the record, including the EEOC’s
administrative record of its investigation of Ms.
Starke’s charge, the district court found 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 filing the Complaint—let
alone issue a reasonable cause determination as to
those allegations or conciliate them.” Id. at 204a.
Rather, “(t]he record shows that the EEOC wholly
abandoned its statutory duties as to the remaining 67
allegedly aggrieved persons in this case.” Jd. The court
noted, for example, that the EEOC did not “interview
any witnesses or subpoena any documents to determine
whether any of the[] allegations were true.” Jd. at 205a.
None of the alleged harassers was ever interviewed.

Accordingly, the court barred the EEOC from
pursuing its remaining 67 claims, dismissed the
EEOC’s complaint, and entered judgment for CRST.
Id. at 215a-216a.’ The district court also awarded CRST
$4,004,371 in attorney’s fees and $463,071 in expenses,
in addition to taxable costs. JA 174a. The court

" Although the EEOC’s claims were dismissed, Title VII provided
all 67 individuals the right to pursue their own claims in their own
names. See 42 U.S.C. § 2000e-5(f)(1). Three of the 67 individuals
filed sexual harassment charges against CRST and intervened in
the EEOC’s action to assert their own claims through their own
counsel. Those three claims survived the dismissal of the EEOC’s
claims on their behalf. See Pet. App. 194a n.18.

18

determined that such an award of attorney’s fees was
appropriate under Christiansburg “because the
EEOC’s actions in pursuing this lawsuit were
unreasonable, contrary to the procedure outlined by
Title VII and imposed an unnecessary burden upon
CRST and the court.” Jd. at 143a. The court further
found that “({aJn award of fees is necessary to guarantee
that Title VII’s procedures are observed in a manner
that maximizes the potential for ending discriminatory
practices without litigation in federal court.” 7d.
Although the court “ma[de] no finding as to whether
the trial attorneys for the EEOC acted in bad faith,” it
noted that “higher-level attorneys” at the EEOC had
made sensational public statements accusing CRST of
“rampant sexual harassment” even though the EEOC
had not investigated its own claims. Jd. at 143a n.4; see
Pet. App. 214a n.25 (same).

&. First Appeal And Remand

The EEOC did not appeal the district court’s
pattern-or-practice ruling, including the court’s finding
that the EEOC did not establish even a prima facie
case that CRST engaged in a pattern or practice of
tolerating sexual harassment. The EEOC likewise did
not appeal the dismissal of 99 of its claims as a
discovery sanction for failing to make those claimants
available for deposition. And the EEOC did not appeal
the court’s grants of summary judgment with respect
to 47 of its other individual claims.

The EEOC did, however, appeal 40 of the 87

individual grants of summary judgment, as well as the
award of fees and costs. The Eighth Circuit affirmed 38
of the 40 grants of summary judgment, but reversed as

19

to the other two, which concerned the individual claims
that the EEOC brought on behalf of Monika Starke and
Tillie Jones. Pet. App. 155a-156a. Because those two
claims were remanded to the district court, there was
no final judgment in place, and the Eighth Circuit
accordingly vacated the district court’s award of fees
and costs without prejudice. Jd. at 156a.

The EEOC also appealed the dismissal of the 67
claims for failure to satisfy Title VII’s pre-suit
requirements. The Eighth Circuit affirmed the
dismissal, agreeing both that the EEOC had “wholly
failed” to satisfy Title VII’s pre-suit requirements and
that dismissal was a permissible remedy under the
circumstances. Jd. at 115a-116a. The EEOC did not
seek review from this Court of the Eighth Circuit’s
holding on either point.

On remand, the EEOC withdrew its claim on behalf
of Ms. Jones ecause, under the law of the case, its
failure to investigate, find reasonable cause, and
attempt to conciliate her claim barred further litigation.
The parties then settled the EEOC’s claim on behalf of
Ms. Starke and jointly moved to dismiss the case. The
court entered a new final judgment dismissing the case
with prejudice. JA 115a-119a.

CRST then renewed its petition for an award of
attorney’s fees and costs. Drawing on nearly six years
of experience with the case and the parties, and
evaluating that experience in light of this Court’s
guidance in Christiansburg, the district court again
found that the EEOC’s pursuit of its claims was
unreasonable. Pet. App. 64a. The court awarded CRST
$4,189,296 in attorney’s fees, $413,387 in out-of-pocket

20

expenses, and $91,758 in taxable costs. Pet. App. 84a-
85a.

6. Decision Under Review

The EEOC appealed the fee award to the Eighth
Circuit. The EEOC contended that, because it had
obtained a settlement regarding Ms. Starke, it was the
prevailing party. The EEOC argued alternatively that,
even if the EEOC had not prevailed, CRST was not
entitled to a fee award because CRST was not a
prevailing party either and the Christiansburg test was
not satisfied. The EEOC also contended that the
district court should not have awarded fees to CRST
for successfully litigating the “pattern-or-practice
issue,” in part because “EEOC’s one-count complaint
does not include a ‘pattern-or-practice claim.” JA 113a
& n.18. The EEOC expressly disavowed that it had
brought any pattern-or-practice claim and explained
that it had merely sought to “use a pattern-or-practice
method of proof” to support its individual claims on
behalf of the various claimants under Section 706. Jd. at
1l4a.

The Eighth Circuit rejected the EEOC’s contention
that it was the prevailing party. Pet. App. 17a-18a. The
court vacated the district court’s fee award with
respect to 84 of the individual claims resolved on
summary judgment, however, because the district
court “did not make particularized findings of
frivolousness, unreasonableness, or groundlessness as
to each individual claim.” Jd. at 28a. The Eighth Circuit
remanded these claims to the district court to make
such individualized determinations. It also held that,
“to the extent that the district court’s order awarded

21

attorneys’ fees to CRST based on a purported pattern-
or-practice claim,” the court had erred because “the
EEOC did not allege that CRST was engaged in ‘a
pattern or practice’ of illegal sex-based discrimination
or otherwise plead a violation of Section 707 of Title
VII.” Jd. at 17a-18a (quotation marks omitted).

Finally, in the ruling under review here, the Eighth
Circuit reversed the fee award with respect to the 67
claims dismissed because of the EEOC’s failure to
satisfy Title VII’s pre-suit requirements. The EEOC
had argued that the district court’s dismissal of these
claims did not “constitute a ruling on the merits,” and
that consequently CRST “cannot be a prevailing party
with respect to those claims.” /d. at 18a. The Eighth
Circuit agreed, holding that the dismissal of those
claims “does not constitute a ruling on the merits,” and
that “[tJherefore, CRST is not a prevailing party as to
these claims.” Jd. at 23a-24a. The court also held that
CRST could not satisfy the Christiansburg standard
for the same reason: “[P]roof that a plaintiff's case is
frivolous, unreasonable, or groundless is not possible
without a judicial determination of the plaintiff's case
on the merits.” Jd. at 18a (quoting Marquart v. Lodge
837, Int'l Ass'n of Machinists & Aerospace Workers, 26
F.3d 842, 852 (8th Cir. 1994)).

CRST petitioned for rehearing en banc, which was
denied on February 20, 2015. Jd. at 218a. On December
4, 2015, this Court granted CRST’s petition for
certiorari.

22
SUMMARY OF ARGUMENT

Section 706(k) authorizes district courts to award
attorney’s fees to the “prevailing party” in a Title VII
case and “entrust({s] the effectuation of the statutory
policy to the discretion of the district courts.”
Christiansburg, 434 U.S. at 416; see 42 U.S.C. § 2000e-
5(k). That discretion is limited by this Court’s decision
in Christiansburg, which permits a fee award to a
prevailing defendant only if the plaintiffs lawsuit was
“frivolous, unreasonable, or without foundation.” 434
U.S. at 421.

The’ district court concluded’ that the
Christiansburg standard was satisfied in this case
because the EEOC “wholly abandoned” its statutory
obligation to investigate the allegations at issue here,
determine whether they were supported by
“reasonable cause,” and attempt conciliation before
bringing suit. Pet. App. 204a. As the district court
recognized, that failure rendered the EEOC’s claims
unreasonable because the EEOC had not followed the
pre-suit administrative procedure required by Title
VII and had instead placed “an unnecessary burden
upon CRST and the court.” JA 143a. The district court
also concluded that a fee award to CRST was
“necessary to guarantee that Title VII’s procedures are
observed in a manner that maximizes the potential for
ending discriminatory practices without litigation in
federal court.” Jd.

The Eighth Circuit agreed that the EEOC “wholly
failed to satisfy its statutory pre-suit obligations” in
this case. Pet. App. 115a-116a. But the court reversed
the award of fees on the ground that fee awards are

23

available only when a defendant prevails “on the
merits,” and CRST had not prevailed “on the merits”
here. That holding is doubly erroneous. Fee awards to
prevailing defendants are not limited to cases that are
decided “on the merits,” and in any event, a dismissal
based on the EEOC’s failure to satisfy Title VII's pre-
suit requirements is properly viewed as a ruling “on the
merits” of the EEOC’s case.

1. The Eighth Circuit’s rule that a prevailing
defendant may recover fees only when a case is decided
“on the merits” has no basis in the statute, conflicts
with this Court’s decision in Christiansburg, and
severely undermines the policy of Section 706(k). As an
initial matter, there can be no doubt that a defendant
who secures a dismissal with prejudice, as CRST did
here, is a “prevailing party.” As this Court has
explained, the prototypical “prevailing party” is a
“party in whose favor a judgment is rendered.”
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 5382 U.S. 598, 603 (2001)
(quotation marks omitted). While a plaintiff must
obtain “relief on the merits of his claim” to prevail,
Hewitt v. Helms, 482 U.S. 755, 760 (1987), such a
requirement cannot logically apply to defendants, who,
by definition, have no claims and seek no relief.

There is no basis for excluding all defendants who
prevail on purportedly “non-merits” grounds from the
statutory authorization for fee awards. The
Christiansburg standard aims to protect defendants
from the costs of unreasonable lawsuits without unduly
deterring plaintiffs from seeking their day in court. In
essence, Christiansburg promises plaintiffs that they

24

will not have to pay the defendant’s fees, even if they
lose, so long as their decision to bring suit was
“reasonable” in the first place. 434 U.S. at 422. As lower
courts applying Christiansburg have _ repeatedly
recognized, that decision to litigate can be unreasonable
for many reasons that do not bear on the ultimate
merits of the claims—including, for example, when the
suit is obviously time-barred or moot. Awarding fees in
such cases is entirely consistent with Christiansburg’s
letter and logic.

By contrast, categorically denying fees in such cases
would frustrate the congressional policy choice
embodied in Section 706(k): to ensure that plaintiffs
who impose unnecessary and unreasonable litigation
costs on defendants will bear the costs of their own
choices. If, as the EEOC contends, CRST prevailed on
“non-merits” grounds in this case, that only confirms
that Congress’s concerns are fully engaged in “non-
merits” cases. CRST thoroughly litigated all 67 claims
at issue here, including taking the deposition of each
claimant, even though the EEOC ultimately admitted
that it had not investigated or found “reasonable cause”
to believe that the claimants’ allegations of sexual
harassment were “true” before bringing suit. 42 U.S.C.
§ 2000e-5(b). Congress conditioned the EEOC’s power
to sue upon satisfaction of its pre-suit responsibilities—
thereby making federal courts a last, rather than first,
resort—in order to avoid burdening defendants and
courts with avoidable litigation costs of this kind.
Congress could not plausibly have intended to preclude
a fee award, which is itself a backstop protection for
defendants shouldered with unreasonable litigation

25

costs, when the EEOC violates these statutory
safeguards. Such a rule would leave the EEOC free to
disregard its pre-suit responsibilities with impunity
and to attempt to coerce settlement of uninvestigated,
unevaluated, and unconciliated claims through the
threatened or actual imposition of massive litigation
expense in federal courts.

2. Even if Congress intended Section 706(k) to limit
defendants’ fee awards to cases decided “on the
merits,” which it did not, this case would still qualify.
The pre-suit requirements that the EEOC failed to
satisfy here are elements of its statutory cause of
action, comparable in form and function to other
conditions in Title VII that the Court has already
recognized as such. See Thompson v. N. Am. Stainless,
LP, 562 U.S. 170 (2011) (limitation of private right of
action to plaintiffs who are “aggrieved”); Arbaugh v. Y
& H Corp. 546 U.S. 500 (2006) (numerosity
requirement for a covered “employer”’). Moreover,
unlike claim-processing rules that “seek to promote the
orderly progress of litigation,” Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 435 (2011), Title
VII’s__ pre-suit requirements are _ substantive,
mandatory conditions that determine whether a court
may hold an employer liable in a case brought by the
EEOC at all. Indeed, a central purpose of the pre-suit
requirements is to prevent the EEOC from litigating
eases that it has not first screened for merit and
determined there is “reasonable cause” to pursue. The
EEOC’s claims were dismissed in this case because the
EEOC failed, inter alia, to first determine whether the
allegations that it intended to litigate had sufficient

26

merit to warrant requiring CRST to defend itself in
court. In all of these senses, the district court decision
goes directly to “the merits” of the EEOC’s case.

ARGUMENT

I. Neither Section 706(k) Nor This Court’s
Decision In Christiansburg Requires That A
Defendant Prevail “On The Merits” In Order
To Be Awarded Fees.

In order to obtain an award of attorney’s fees in a
Title VII case, a litigant must clear two hurdles. First,
it must qualify as a “prevailing party” within the
meaning of the statute. 42 U.S.C. § 2000e-5(k). Second,
because the statute provides only that the court “may”
award fees to the prevailing party, a prevailing party
must also establish that a fee award is warranted in its
case. This Court has held that, under Section 706(k), “a
prevailing plaintiff ordinarily is to be awarded
attorney’s fees in all but special circumstances.”
Christiansburg, 434 U.S. at 417; see Newman v. Piggie
Park Enters., Inc., 390 U.S. 400, 402 (1968). A district
court may award fees to a prevailing defendant,
however, only “upon a finding that the plaintiff's action
was frivolous, unreasonable, or without foundation,
even though not brought in subjective bad faith.”
Christiansburg, 434 U.S. at 421.

In this case, the Eighth Circuit imposed a new third
hurdle for a defendant to clear, holding that no
attorney’s fees could be awarded with respect to the
claims at issue because they were not resolved “on the
merits.” Specifically, it held both that CRST was “not a
prevailing party as to these claims” because there was

27

no “ruling on the merits,” Pet. App. 23a (emphasis
added), and, additionally, that the Christiansburg
standard could not be satisfied “without a judicial
determination of the plaintiff's case on the merits,” id.
at 18a (quoting Marquart, 26 F.3d at 852). The Eighth
Circuit erred in imposing this third hurdle, which has
no basis in the statute or this Court’s cases and
subverts the congressional policy providing for fee
awards to defendants in appropriate cases.

A. Section 706(k) Authorizes An Award Of Fees
To Any “Prevailing Party.”

Section 706(k), like many other fee-shifting statutes,
authorizes an award of attorney’s fees to “the
prevailing party.” 42 U.S.C. § 2000e-5(k). The Eighth
Circuit’s conclusion that only some defendants who win
judgments in their favor have “prevailed” is contrary to
the ordinary meaning of the word and its traditional
legal significance.

Indeed, it is not clear that the EEOC itself defends
the Eighth Circuit’s singular definition of a “prevailing
party” in this Court. In the court below, the EEOC
urged that CRST could not be a “prevailing party”
under circuit precedent without securing a judgment
“on the merits.” See JA 105a-112a. The Eighth Circuit
agreed. Pet. App. 23a. In its Brief in Opposition to
Certiorari, however, the EEOC casts its victory below
as an application of Christiansburg—with no mention

of the threshold “prevailing party” inquiry—and
defends the decision solely on that ground. See Brief in

Opposition 8, 10.

28

In any event, the Eighth Circuit’s limitation of the
definition of a “prevailing” defendant to one that
prevails “on the merits” is untenable. The paradigm of
a “prevailing party” is “[a] party in whose favor a
judgment is rendered.” Buckhannon Bd. & Care
Home, Inc., 532 U.S. at 603 (quoting Black’s Law
Dictionary 1145 (7th ed. 1999)). There is no question
that the district court rendered judgment in favor of
CRST with respect to the claims at issue here. See Pet.
App. 215a-216a. Accordingly, CRST is the “prevailing
party” with respect to those claims.

To be sure, this Court has often held that a plaintiff
is not a “prevailing party” unless it obtains “at least
some relief on the merits of [its] claim.” Hewitt, 482
U.S. at 760. The most familiar form of “relief on the
merits” is a favorable judgment, see Farrar v. Hobby,
506 U.S. 103, 112-13 (1992), although other forms of
victory can also suffice, see Maher v. Gagne, 448 U.S.
122, 129 (1980) (upholding fee award where plaintiffs
settled and obtained a consent decree); cf. Buckhannon
Bd. & Care Home, Inc., 532 U.S. at 605 (explaining that
“(a] defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit,” does not suffice for prevailing
party status). Some relief “on the merits” is necessary
for a plaintiff to prevail because the “touchstone of the
prevailing party inquiry” is whether there has been a
“material alteration of the legal relationship of the
parties.” Sole v. Wyner, 551 U.S. 74, 82 (2007)
(quotation marks omitted). In other words, a plaintiff
cannot “prevail” without prevailing “on the merits”
because there is no other way for a plaintiff to secure “a

29

court-ordered ‘chang{e] [in] the legal relaticnship” with
the defendant. Buckhannon Bd. & Care Home, Inc.,
532 U.S. at 604 (quoting Texas State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)
(brackets in original)).

Things look different from the other side of the
courtroom. The defendant is not seeking “relief on the
merits of [any] claim,” Hewitt, 482 U.S. at 760, and the
only change in the legal relationship that a defendant
wants is a dismissal, with prejudice, of the plaintiffs
ease. Such a dismissal is “the stuff of which legal
victories are made” for the defense bar. IZd.
Accordingly, there is no logical basis for excluding
defendants who prevail by obtaining a dismissal with
prejudice, albeit on purportedly “non-merits” grounds,
from the category of “prevailing defendants.”

The Eighth Circuit itself has recognized that if it
used the “material alteration” standard that applies to
plaintiffs, a defendant who wins a dismissal with
prejudice on non-merits grounds “would technically be
a prevailing party.” Marquart v. Lodge 837, Int’l Ass’n
of Machinists & Aerospace Workers, 26 F.3d 842, 851
(8th Cir. 1994). However, the court nonetheless
adopted a “very narrow” definition of a “prevailing
defendant” based on its sense of “the public policy
conception of the role of the judiciary.” Jd. at 851-52. In
so doing, the court purported to follow “lessons learned
from” this Court’s decision in Christiansburg. Id. at

850.
Christiansburg, however, adopted a rule of

“treating prevailing plaintiffs and defendants
differently,” not defining those categories differently at

30

the threshold. Fogerty v. Fantasy, Inc., 510 U.S. 517,
523 (1994) (emphasis added); see Christiansburg, 434
U.S. at 421; see also Indep. Fed’n of Flight Attendants
v. Zipes, 491 U.S. 754, 759 (1989) (explaining that “in
Christiansburg Garment we held that even though the
term ‘prevailing party’ in § 706(k) does not distinguish
between plaintiffs and defendants, the principle [that a
prevailing plaintiff should ordinarily recover fees]
would not be applied to a prevailing defendant”
(emphasis added; citation omitted)). Accordingly, there
was no basis for the Eighth Circuit to impose an
additional requirement for a defendant to qualify as a

“prevailing party.”

B. District Courts May Award Fees To
Prevailing Defendants Whether Or Not They
Prevail “On The Merits.”

Because a defendant who obtains a judgment in its
favor is plainly a “prevailing party,” the central issue in
this case is whether a district court has discretion to
award fees to such a prevailing defendant when the
decision rests on “non-merits” grounds. Nothing in the
statute or in Christiansburg favors stripping judges of
that discretion, which would serve only to undermine
the important policy objectives of Section 706(k).

1. The Eighth Circuit’s Rule Has No Basis
In Section 706(k) And Conflicts With
Christiansburg.

By its terms, Section 706(k) imposes no categorical
restrictions on which prevailing parties may be
awarded fees. Congress “entrust[ed] the effectuation of
the statutory policy to the discretion of the district

31

courts.” Christiansburg, 434 US. at 416. In
Christiansburg, this Court explained that equitable
considerations nonetheless counsel different standards
with respect to plaintiffs and defendants. Because the
private plaintiff is “the chosen instrument of Congress”
to vindicate the critical policies of Title VII—and
because the defendant against whom fees are awarded
is, by definition, “a violator of federal law”—attorneys’
fees are awarded to prevailing private plaintiffs “in all
but special circumstances.” Id. at 417-18. Fee awards to
prevailing defendants, by contrast, are warranted only
“upon a finding that the plaintiff's action was frivolous,
unreasonable, or without foundation,” although the
court need not find “subjective bad faith.” Jd. at 421.

As the Court explained in Christiansburg, this
standard effectuates Congress’s commitments to
“protect[ing] defendants from burdensome litigation
having no legal or factual basis” and “deter[ring] the
bringing of lawsuits without foundation,” id. at 420
(quoting 110 Cong. Rec. 13,668 (1964) (statement of
Sen. Lausche)), while also ensuring that the prospect of
an adverse fee award will not undercut “vigorous
enforcement of the provisions of Title VII,” id. at 422.
Although the Court considered standards that would
make fee awards available to defendants in even fewer
cases, it squarely rejected them. Shifting the balance
further in favor of plaintiffs, the Court concluded,
would “distort” the adversarial process, giving
plaintiffs “substantial incentives to sue, while
foreclosing to the defendant the possibility of
recovering his expenses in resisting even a groundless
action.” Id. at 419. As the Court noted, “many

32

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.” Jd. at 422 n.20.

The Christiansburg standard thus reflects this
Court’s considered accommodation of the competing
interests that Congress sought to protect in Section
706(k). See Roadway Exp., Inc. v. Piper, 447 U.S. 752,
762 (1980) (“[Christiansburg’s] distinction advances the
congressional purpose to encourage suits by victims of
discrimination while deterring frivolous litigation.”).
Under the terms of that compromise, a defendant may
recover the costs of defending itself only when it was
unreasonable for the plaintiff to require the defendant
to do so. See Christiansburg, 434 U.S. at 421-22. Put the
other way, plaintiffs deciding whether to bring suit can
rest assured that they will not have to pay the
defendant’s fees if they lose, so long as they have
“reasonable ground[s] for bringing suit” in the first
place. Id. at 422; see id. at 422 n.20 (directing district
courts to determine “the reasonableness of the
[plaintiffs] litigation efforts”); id. at 421, 422 (directing
district courts to consider whether the “action” that the
plaintiff brought was frivolous, unreasonable, or
groundless).

The logic of Christiansburg dictates its scope. As
the Court’s opinion made clear, Christiansburg raised
the bar for fee awards to defendants in order to ensure
that plaintiffs with viable claims would not be deterred
from seeking their day in court. See id. at 422; see also
Fogerty, 510 U.S. at 524. When a lawsuit has no
reasonable chance of success, however, this principle

33

has no application. And that is true regardless of why
the lawsuit is legally untenable. What matters, in short,
is the reasonableness of the decision to litigate, because
that is the decision Congress and the Court sought to
insulate from undue deterrence.

As courts have repeatedly recognized, that decision
can be unreasonable for many reasons unrelated to the
ultimate merits of the plaintiffs claims. See, e.g., C.W. v.
Capistrano Unified Sch. Dist., 784 F.3d 1237, 1247-48
(9th Cir. 2015) (upholding attorney’s fee award under
Christiansburg because the “outcome [was]
predetermined” by the defendant’s “Eleventh
Amendment immunity”); EEOC v. Propak Logistics,
Inc., 746 F.3d 145, 152 (4th Cir. 2014) (upholding
attorney’s fee award under Christiansburg because
“the EEOC’s lawsuit effectively was moot at its
inception”); Hamer v. Lake Cty., 819 F.2d 1362, 1370
(7th Cir. 1987) (upholding attorney’s fee award under
Christiansburg because the plaintiffs’ suit was clearly
barred by the Tax Injunction Act); Hutcherson v. Bd. of
Sup’rs of Franklin Cty., 742 F.2d 142, 146 (4th Cir.
1984) (same); Cote v. James River Corp., 761 F.2d 60, 61
(ist Cir. 1985) (holding that attorney’s fee award was
warranted under Christiansburg because “it became
unreasonable to continue litigation” when the plaintiff
learned her claim was certainly “time-barred”); see also
Davidson v. Culver City, 159 F. App’x 756, 759 (9th Cir.
2005) (upholding attorney’s fee award under
Christiansburg because “the result should have been
obvious from the inception of this litigation ... . [g]jiven
the applicability of res judicata”); DeLeon v. Haltom
City, 113 F. App’x 577, 578 (5th Cir. 2004) (upholding

34

attorney’s fee award under Christiansburg because the
defendant was “unequivocally protected from liability
by absolute judicial immunity”).

In fact, Christiansburg itself involved a barrier to
suit far afield from the merits of any allegation of
discrimination or sexual harassment—and the Court’s
treatment of that barrier is irreconcilable with the
Eighth Circuit’s interpretation of the Court’s decision.
In Christiansburg, the EEOC notified the charging
party that its conciliation efforts had failed and that she
had a right to sue the employer in federal court, but she
did not do so. In 1972, almost two years after the
EEOC sent that right-to-sue letter, Congress amended
Title VII to authorize the EEOC to enforce the statute
through litigation, and also permitted such suits with
respect to any “charges pending with the Commission”
on the effective date of the amendment.
Christiansburg, 434 U.S. at 414 (citation omitted). The
EEOC brought suit on behalf of the charging party, but
the district court dismissed the action because the
charge had not been pending on the relevant date. Jd.

* Courts similarly do not observe a “merits-only” restriction in
other areas where the reasonableness of the decision to litigate is
at issue. See, e.g., Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7
(1987) (explaining that Rule 38 of the Federal Rules of Appellate
Procedure “affords a court of appeals plenary discretion to assess
‘just damages’ in order to penalize an appellant who takes a
frivolous appeal”); Brubaker v. City of Richmond, 943 F 2d 1363,
1385 (4th Cir. 1991) (approving Rule 11 sanctions for knowingly
pursuing a claim that is time-barred); Fermin v. Nat'l Home Life
Assurance Co., 15 F.3d 180, 1994 WL 24922, at *2 (5th Cir. 1994)
(unpublished table decision) (approving Rule 11 sanctions for
knowingly pursuing a claim that is barred by res judicata).

35

The defendant then requested an award of fees. The
district court held that such an award was not justified
because “the Commission’s action in bringing the suit
cannot be characterized as unreasonable or meritless,”
and the court of appeals affirmed. /d. at 415 (citation
omitted).

After clarifying the standard for fee awards to
prevailing defendants, this Court affirmed the denial of
fees as well. The Court explained that by asking
whether “the Commission’s action in bringing the suit
could ... be characterized as unreasonable or
meritless,” the district court had correctly “focused on
the standards we have discussed.” Jd. at 423 (citation
omitted). In particular, the Court noted the district
court’s holding that the “Commission’s statutory
interpretation of § 14 of the 1972 amendments was not
frivolous.” Id. at 423-24 (citation omitted). Of course, if
the Christiansburg inquiry were limited to the merits
of the discrimination or harassment claim, the
plausibility of the EEOC’s statutory analysis regarding
the timeliness question would have been irrelevant.
The fact that the Court approved the district court’s
approach is thus a powerful indication that
Christiansburg does not require a showing that the
EEOC’s case was unreasonable “on the merits” in
order for a prevailing defendant to win a fee award.

Christiansburg also precludes any suggestion that
defendants are eligible for fee awards only when they
actually have been cleared of charges of discrimination.
As the Court explained, one of the two court of appeals
decisions from which it drew the operative standard
involved “a defendant that had successfully resisted a

36

Commission demand for documents.” Christiansburg,
434 US. at 421 (citing U.S. Steel Corp. v. United States,
519 F.2d 359 (3d Cir. 1975)). Such disputes involving
EEOC investigations are plainly “proceeding{s] under
this subchapter [i.e., Title VII],” for which fee awards
are available. 42 U.S.C. § 2000e-5(k); see id. §§ 2000e-8,
2000e-9. But the defendant who prevails against a
demand for documents has not been exonerated of the
underlying charge of discrimination.

The underlying merits of a discrimination or
harassment charge are not even relevant in
proceedings regarding the EEOC’s use of its
investigatory powers. See 42 U.S.C. § 2000e-8(a)
(granting the EEOC “access to ... any evidence of any
person being investigated or proceeded against that
relates to unlawful employment practices covered by
[Title VII) and is relevant to the charge under
investigation”); see also EEOC v. Shell Oil Co., 466
U.S. 54, 65 (1984) (explaining the conditions for
enforcement of an EEOC administrative subpoena).
The fact that both Section 706(k) and Christiansburg
encompass such proceedings confirms that neither
Congress nor the Court intended to limit defendant fee
awards to cases where allegations of discrimination are
resolved “on the merits.” To the contrary, such a
restriction would effectively nullify Congress’s choice
to apply Section 706(k) to “any action or proceeding
under” Title VII, 42 U.S.C. § 2000e-5(k) (emphasis
added). See, e.g., EEOC v. Bellemar Parts Indus., Inc.,
868 F.2d 199, 200 (6th Cir. 1989) (holding that the
defendant was entitled to fees under Christiansburg

37

because “the action filed by the EEOC to enforce its
subpoena in district court was groundless”).

2. Imposing A “Merits-Only” Restriction On
Attorney’s Fee Awards Would Undermine
The Policy Of Section 706(k).

“When applying fee-shifting statutes,” this Court
“discern[{s] the limits on a district court’s discretion” by
looking to “the large objectives of the relevant Act.”
Martin v. Franklin Capital Corp., 546 U.S. 132, 139-40
(2005) (quotation marks omitted). The objective of Title
VII's allowance for fee awards to defendants is “to
protect defendants from burdensome litigation having
no legal or factual basis.” Christiansburg, 434 U.S. at
420. Accordingly, grafting a merits-only restriction
onto the Christiansburg test would be appropriate only
if defending litigation that is unreasonable on non-
merits grounds could not be burdensome or costly to
the defendant. But that is not the case.

This case illustrates the point as well as any could.
The EEOC contends that CRST did not prevail “on the
merits” when it secured a dismissal of the 67 claims at
issue here. As explained below, that is incorrect. See
infra Part II. But if this case is indeed an example of
“non-merits” adjudication, that only confirms that the
policy rationale animating Section 706(k) applies just as
forcefully to “non-merits” cases as to “merits” cases.

When in 1972 Congress authorized the EEOC to
enforce Title VII through litigation, Congress retained
the pre-suit requirements as a compensating limitation
on the exercise of the EEOC’s enforcement power. See
Shell Oil Co., 466 U.S. at 78. Specifically, the pre-suit

38

requirements—investigation, reasonable cause
determination, and conciliation—serve to prevent the
EEOC from imposing unjustified costs and disruption
on an employer, either by litigating uninvestigated or
unevaluated claims or by litigating without first
attempting settlement. By establishing these threshold
duties as a necessary foundation for any subsequent
lawsuit, Congress sought to ensure that the EEOC’s
litigation authority would be limited to “legitimate,
unreconcilable disputes,” and would only “take over at
the level where conciliations fail.” 118 Cong. Rec. 588-
89 (1972) (statement of Sen. Dominick); see id. at 7563
(statement of Rep. Perkins) (explaining that, despite its
litigating authority, the EEOC would “continue to
make every effort to conciliate as is required by
existing law”).

Here, CRST incurred millions of dollars in fees and
expenses to defend against—and ultimately defeat—
claims that were “without” the “foundation” that the
statute requires. Christiansburg, 434 U.S. at 421. The
EEOC put CRST to the expense of litigating these 67
claims, including depositions of the 67 claimants, even
though it had not first investigated them, found
“reasonable cause to believe” that they were “true,” or
attempted to conciliate them with CRST. 42 U.S.C.
§ 2000e-5(b). That is precisely what Congress sought to
avoid. In fact, both the pre-suit requirements and the
fee-shifting provision have the common purpose of
avoiding this result, for each serves to shield employers
from the costs of unnecessary litigation. It would be
anomalous if the fee-shifting remedy—a mechanism to
protect defendants from the costs of unreasonable

39

litigation—were categorically unavailable when the
EEOC disregards the very statutory provisions that
seek to protect defendants from unreasonable
litigation. Two circuits have rejected that result, and a
third has endorsed their position. See EEOC v.
Asplundh Tree Expert Co., 340 F.3d 1256, 1261 (11th
Cir. 2003); EEOC v. Pierce Packing Co., 669 F.2d 605,
609 (9th Cir. 1982); see also EEOC v. Agro
Distribution, LLC, 555 F.3d 462, 469 (5th Cir. 2009).

Prohibiting fee awards to defendants under the
circumstances presented here would invite the EEOC
to shift the administrative costs of fulfilling its own
statutory obligations to defendants and federal courts,
using discovery and motion practice as substitutes for
the pre-suit process required by Congress. Indeed, that
is precisely what happened in this case. See Pet. App
188a (explaining that the EEOC did not know “on
whose behalf it was seeking relief’ and “was using
discovery to find them”); JA 143a (finding fee award
warranted because, inter alia, the EEOC’s strategy of
pursuing this litigation “contrary to the procedure
outlined by Title VII” had “imposed an unnecessary
burden upon CRST and the court”). The Eighth
Circuit’s holding gives the EEOC license to bring
uninvestigated, unexamined, and unconciliated claims
directly to court—leaving it to the defendant and the
district judge to sort plausible from baseless claims—
secure in the knowledge that the EEOC will not foot
the bill because there is no fee-shifting for such “non-
merits” dispositions. Likewise, the holding below
endorses an EEOC strategy of attempting to coerce
settlements from employers’ by ffiling an

40

unsubstantiated allegation that a “class” of claimants
exists without ever investigating if that is in fact true.
Indeed, under the Eighth Circuit’s rule, there is no
disincentive to such conduct by the EEOC other than
expense of its own time and effort. The docket entries
in this case demonstrate the extraordinary investment
of time and judicial resources required of a district
court when the EEOC bypasses the statutory pre-suit
requirements. JA 1a-98a.

Although these dynamics are particularly acute
when the EEOC does not satisfy its pre-suit
obligations, they also arise in other contexts that may
not go to the ultimate merits of the underlying claim.
District courts should be free to determine that a
plaintiff should pay the defendant’s costs of litigating
claims that were, for example, clearly barred by res
judicata, a statute of limitations, or an ironclad
immunity. See supra at 33-34 (collecting cases). When
these dispositive flaws in the plaintiffs case are not
apparent to the defendant at the outset of litigation, the
defendant may incur substantial expenses defending a
futile lawsuit, as CRST did here. A district court may
appropriately conclude that the plaintiffs decision to
litigate such claims was unreasonable—particularly if
the plaintiff is a sophisticated litigant, such as the
EEOC, that is well-acquainted with its obligations both
before and after filing suit. See Christiansburg, 434
U.S. at 422 n.20 (explaining that “a district court may
consider distinctions between the Commission and
private plaintiffs in determining the reasonableness of
the Commission’s litigation efforts”).

41

It would be better for everyone, not least the
courts, if avoidable and unreasonable litigation
expenses were never generated at all. But when they
are, the legislative plan directs that they should be paid
by the party responsible for them. That plan is
grounded in considerations of both fairness and
deterrence. See Fox v. Vice, 131 S. Ct. 2205, 2214 (2011)
(explaining that fee-shifting is appropriate because
“(t]he plaintiff acted wrongly” and “the court may shift
to him the reasonable costs that [his] claims imposed on
his adversary” (citing Christiansburg, 434 U.S. at 420-
21)); Christiansburg, 434 U.S. 420 (explainin~ ‘hat fee-
shifting “serve[s] ... ‘to diminish the li iihood of
unjustified suits being brought” (quoting 110 Cong.
Rec. 6534 (statement of Sen. Humphrey))). Those
statutory objectives of achieving both fairness and
deterrence are fully implicated in cases like this one,
whether or not the district court’s dismissal constitutes
a ruling on “the merits.”

Il. Even If Section 796(k) Could Be Read To
Require That A Defendant Prevail “On The
Merits,” CRST Prevailed On The Merits
Here.

Because CRST won a dismissal with prejudice of
the 67 claims involved here, it prevailed in the only
sense this Court has ever required as a condition of a
fee award: it secured a material court-ordered change
in the parties’ legal relationship. For the reasons set
out above, any further requirement that the dismissal
be “merits-based” would be misguided. If such a
requirement did exist, however, CRST’s victory in this
case would readily satisfy it. The pre-suit requirements

42

that the EEOC failed to atisfy in this case are
elements of its statutory cause of action; they are
substantive, mandatory conditions on liability; and they
serve to ensure that the EEOC does not litigate cases
without first investigating claims “on the merits” and
determining that there is a reasonable legal and factual
basis for pursuing them.

A. The Pre-Suit Requirements Are Elements Of
The EEOC’s Cause Of Action.

Neither the Eighth Circuit nor the EEOC has
questioned the premise that, if satisfaction of the pre-
suit requirements is an “element” of the EEOC’s cause
of action, a dismissal on that ground qualifies as a ruling
on the merits. See Pet. App. 20a; JA 106a-107a. Because
the pre-suit requirements do form elements of the
EEOC’s case, CRST prevailed on the merits here when
it defeated these 67 claims by demonstrating that the
EEOC did not investigate, find reasonable cause for, or
attempt to conciliate any of these claims as required by
the statute.

That conclusion follows directly from this Court’s
cases. First, the Court has already recognized that the
“element([s] of a plaintiffs claim for relief’ under Title
VII extend beyond the ultimate question whether the
alleged discrimination has occurred. Arbaugh, 546 U.S.
at 509. In Arbaugh, the Court held that Title VII’s
numerosity requirement—the definition of an
“employer” as an entity with 15 or more employees—
does not circumscribe a court’s jurisdiction, but rather
forms “a substantive ingredient of a Title VII claim.”
Id. at 503.

43

Just like the numerosity requirement, the
conditions set out in Section 706(b) should also be
treated as a “substantive ingredient of a Title VII
claim.” Jd. There is no basis for drawing any distinction:
neither provision limits the court’s jurisdiction; neither
goes to the “merits” in the narrow sense of whether the
complainant’s allegations of discrimination are true; and
the EEOC must establish both to prove its case. See
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1656
(2015) (explaining that a “sworn affidavit from the
EEOC stating that it has performed the obligations”
will usually suffice with respect to the conciliation
requirement).

This Court’s cases concerning private-plaintiff suits
also strongly indicate that satisfaction of the three pre-
suit requirements forms an “element” of the EEOC’s
case. As the Court has recognized, Title VII confers
distinct rights of action on the EEOC and on private
plaintiffs. See Gen. Tel. Co. of the Nw., Inc. v. EEOC,
446 U.S. 318, 325-26 (1980); 42 U.S.C. § 2000e-5(f)(1)
(providing that under certain circumstances, “the
Commission may bring a civil action,” and under other
circumstances, “a civil action may be brought . . . by the
person claiming to be aggrieved”). The Court has
specifically held that Title VII’s cause of action for a
“person claiming to be aggrieved” incorporates the
zone-of-interests test into the definition of “aggrieved.”
Thompson, 562 U.S. at 177-78 (quotation marks
omitted). And, as the Court recently clarified, when a
right to sue is circumscribed by the zone-of-interests
test, “the zone-of-interests test ... is an element of the
cause of action under the statute.” Lexmark Int'l, Inc.

44

v. Static Control Components, Inc., 134 S. Ct. 1377,
1391 n.6 (2014); see id. at 1387-88.

Suppose, then, that a private plaintiff brings suit
under Title VII, but the court determines that he or
she is not “aggrieved” within the meaning of the
statute. To use the example set forth in this Court’s
decision in Thompson v. North American Stainless,
LP, suppose that a shareholder “sue[s} a company for
firing a valuable employee for racially discriminatory
reasons,” alleging “that the value of his stock decreased
as a consequence.” 562 U.S. at 177. Under Thompson,
that lawsuit would be dismissed because the
shareholder is not “aggrieved” within the meaning of
Section 706(f). Jd. And, under Lexmark, that dismissal
would necessarily qualify as merits-based: the plaintiff
failed to satisfy an element of the applicable cause of
action. 134 S. Ct. at 1391 n.6. That result makes perfect
sense. Since a viable private-plaintiff case requires both
an “aggrieved” employee and a covered “employer,” it
is not surprising that both would equally be elements of
the relevant cause of action under Title VII.

The question here is no different. Just as Congress
permitted a private plaintiff to sue only if he or she is
“aggrieved,” it permitted the EEOC to sue only if it has
investigated, found reasonable cause, and “has been
unable to secure from the respondent a conciliation
agreement acceptable to” it. 42 U.S.C. § 2000e-5(f)(1).
There is no reason why the former “aggrieved”
requirement should qualify as an “element”—as it
necessarily does under this Court’s cases—but the
latter pre-suit requirement, which appears in parallel
form in the same statutory subsection, should not. In a

45

private-plaintiff case, the zone-of-interests test
measures whether “Congress intended to permit the
suit” brought by the plaintiff. Thompson, 562 U.S. at
178 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,
399 (1987)). In the case of an action brought by the
EEOC, that same question is answered by the pre-suit
requirements. The two limitations on the statutory
causes of action are thus analogous in both form and
function. Each requires some initial filtering depending
upon the private or governmental nature of the
plaintiff. Accordingly, satisfaction of the pre-suit
requirements is a necessary element of the EEOC’s
case.

The Eighth Circuit explained its contrary holding
on three grounds. First, it noted that the pre-suit
requirements “do not distinguish which employers are
subject to Title VII or whether an employer has
violated Title VII.” Pet. App. 23a. As this Court’s
analysis of the zone-of-interests test indicates,
however, that definition of an “element” is incompatible
with settled law. Indeed, it is common for the elements
of a cause of action to include not only facts establishing
that the defendant has violated a statute, but also
others that determine whether the plaintiffs suit
against the defendant will lie. See, e.g., Lexmark, 134 8S.
Ct. at 1390 (observing that “federal causes of action in a
variety of contexts ... incorporate a requirement of
proximate causation”). In a securities fraud case, for
example, the plaintiff must prove not only that the
defendant violated the Securities Exchange Act, but
also that “the act or omission of the defendant alleged
to violate [the Act] caused the loss for which the

46

plaintiff seeks to recover damages.” 15 U.S.C. § 78u-
4(b)(4); see Dura Pharm., Inc. v. Broudo, 544 U.S. 336,
342 (2005). A private RICO plaintiff likewise must
prove not only that the defendant violated the statute,
but also that the plaintiff was “injured in [its] business
or property by reason of [the] violation.” 18 U.S.C.
§ 1964(c). This Court has always characterized such
conditions as “elements,” even though, by their own
terms, they are not necessary to establish a violation of
the statute. See, e.g., Dura, 544 U.S. at 341-42; Holmes
v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 285 (1992)
(O’Connor, J., concurring) (describing RICO’s “business
or property” requirement as among “the elements of a
private cause of action under RICO”); see also United
States v. Hayes, 555 U.S. 415, 422 (2009) (defining
“element” as “{a] constituent part of a claim that must
be proved for the claim to succeed” (quoting Black’s
Law Dictionary 558 (8th ed. 2004)).

Second, the Eighth Circuit drew an analogy to Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). Its
decision finds no support in Reed, however. In Reed,
this Court determined that the Copyright Act’s
registration requirement “does not restrict a federal
court’s subject-matter jurisdiction.” Jd. at 157. The
Court based its analysis on Arbaugh, which similarly
concluded that Title VII’s numerosity requirement
does not “affect{] federal-court subject-matter
jurisdiction.” 546 U.S. at 503. After explaining why the
Copyright Act’s registration requirement satisfied the
criteria set out in Arbaugh, Reed entertained the
counterargument “[tJhat the numerosity requirement
in Arbaugh could be considered an element of a Title

47

VII claim, rather than a prerequisite to initiating a
lawsuit,” and rejected the proffered distinction as
immaterial to the jurisdictional question. 559 U.S. at
165-66 (emphasis added). Reed thus did not even affirm
the accuracy of this hypothetical distinction between an
element of a cause of action and a “prerequisite” to a
lawsuit, let alone establish its relevance for purposes of
a fee award.”

Finally, the Eighth Circuit declined to treat
satisfaction of the pre-suit requirements as an element
because these conditions apply when the EEOC brings
“any lawsuit, not just a sexual-harassment lawsuit.”
Pet. App. 22a. But that point is refuted by Arbaugh.
The numerosity requirement—the Eighth Circuit’s
paradigm of a Title VII element, see id. 20a-23a—also
applies to all Title VII litigation, not only to sexual
harassment suits. Yet, as all agree, numerosity is “a
substantive ingredient of a Title VII claim for relief.”
Arbaugh, 546 U.S. at 502. Nothing in this Court’s cases
suggests that satisfaction of the pre-suit requirements
should be treated any differently.

. Moreover, the First Circuit has held that, under Reed,
registration is an element of the plaintiffs cause of action under
the Copyright Act. Latin Am. Music Co. v. Media Power Grp.,
Inc., 705 F.3d 34, 42-43 (1st Cir. 2013); Airframe Sys., Inc. v. L-3
Commce’ns Corp., 658 F.3d 100, 105 (1st Cir. 2011).

48

B. The Pre-Suit Requirements Are Not Claim-
Processing Rules, But Are Mandatory,
Substantive Limitations on Liability In Cases
Brought By The EEOC.

Even if it were not considered an “element” of the
EEOC’s cause of action, satisfaction of Title VII's pre-
suit requirements would remain a mandatory and
substantive condition of a defendant’s liability, and
accordingly should be deemed a “merits” issue in any
sense relevant to a fee award.

Unlike ordinary claim-processing rules that “seek to
promote the orderly progress of litigation,” Henderson,
562 U.S. at 435, Title VII’s pre-suit requirements
cireumscribe the range of cases in which the EEOC
may pursue litigation at all. Specifically, the statute
mandates that the EEOC “shall make an
investigation,” and, if it finds reasonable cause, “shall
endeavor” to conciliate with the employer. 42 U.S.C.
§ 2000e-5(b) (emphasis added). As the Court observed
in Mach Mining, “(that language is mandatory, not
precatory.” 135 S. Ct. at 1651. Only if conciliation fails
“may” the EEOC bring a civil action. 42 U.S.C. § 2000e-
5(f)(1); see Occidental Life, 482 U.S. at 368 (“[Tyhe
EEOC is required by law to refrain from commencing a
civil action until it has discharged its administrative
duties.”). Accordingly, a court is barred from holding a
defendant liable to the EEOC unless these “necessary
precondition[s]” are satisfied. Mach Mining, 135 S. Ct.
at 1651.

In Hallstrom v. Tillamook County, 493 U.S. 20
(1989), this Court considered an analogous restriction
on a statutory cause of action in the Resource

49

Conservation and Recovery Act (RCRA). RCRA
provides for citizen suits, but only if they are brought
at least sixty days after giving notice of the violation to
the government and the alleged violator. 42 U.S.C.
§ 6972(a)(1)(A), (b)(1). Applying the statutory language
according to its terms, this Court held that the
provision is “a mandatory, not optional, condition
precedent for suit,” and that it binds plaintiffs and
courts alike. Hallstrom, 493 U.S. at 26. As the Court
explained, the notice-and-delay requirements create an
opportunity for a prospective defendant to “bring itself
into complete compliance with the Act and thus ...
render unnecessary a citizen suit”—a policy that would
be “frustrated” if the Court did not give “full effect to
the words of the statute” and “preserve[] the
compromise struck by Congress.” Jd. at 29 (internal
quotation marks omitted). The Court therefore
concluded that the notice-and-delay requirements “are
mandatory conditions” that “a district court may not
disregard . . . at its discretion.” Jd. at 31.”

Pre-suit conditions of this kind are not procedural
formalities that determine how litigation unfolds, but
categorical restrictions Congress has imposed on
whether litigation (and hence liability) are permitted in
the first place. In RCRA, Congress confined
defendants’ legal exposure to cases in which, despite
notice, they persisted in violation of the statute. In

” See also United States v. Zucca, 351 U.S. 91, 100 (1956) (holding
that filing an affidavit of good cause is a mandatory prerequisite in
denaturalization proceedings); Mach Mining, 135 S. Ct. at 1651-52
(comparing Title VII’s pre-suit requirements to the conditions
precedent at issue in Hallstrom and Zucca).

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Title VII, it limited EEOC enforcement action to cases
in which an investigation has been conducted,
reasonable cause has been found, and conciliation has
been tried and failed. The point of these administrative
requirements is not to “promote the orderly progress”
of an inevitable lawsuit, Henderson, 562 U.S. at 435—
such as by forcing plaintiffs to bring their claims within
a certain period—but to preclude some unwarranted or
unnecessary lawsuits from ever being brought at all. It
is in this sense that the pre-suit requirements “serve[]
a substantive mission.” Mach Mining, 135 S. Ct. at
1654. By circumscribing the universe of cases in which
an employer may be held liable to the EEOC in court,
they aim to “to ‘eliminate’ unlawful discrimination from
the workplace” in the most efficient manner possible.
Id. (quoting 42 U.S.C. § 2000e-5(b)).

This Court’s cases concerning time bars also offer
an instructive comparison. The apt analogy for the pre-
suit requirements is a statute of repose. As the Court
recently explained, such statutes differ from procedural
rules like statutes of limitations that are amenable to
tolling. They are inflexible and substantive restrictions
that “can be said to define the scope of the cause of
action, and therefore the liability of the defendant.”
CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2187 (2014).
Such non-negotiable prerequisites, whether time bars
or conditions precedent, are surely “procedural” in one
sense of the word. But they ultimately determine
whether the defendant can be held liable to the plaintiff
under the terms of the statute, see id., and therefore go
to the merits of the claim.

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C. The Pre-Suit Requirements Serve To Limit
The EEOC’s Enforcement Authority To
Potentially Meritorious Claims, And Here
The EEOC Admitted That It Did Not First
Determine Whether Its Claims Were
Potentially Meritorious.

The pre-suit requirements go to the merits in yet
another sense. Taken together, they form “an
integrated, multistep enforcement procedure” that
limits the EEOC’s litigation authority to investigated
claims with potential merit, and then further to those
that cannot readily be settled on terms acceptable to
the EEOC. Occidental Life, 482 U.S. at 359.
Compliance with this scheme is a “merits” issue
because a core function of the scheme is to investigate
and test cases for merit before authorizing the EEOC
to sue.

In this way the pre-suit requirements resemble
other threshold determinations that require an early
assessment of the merits of a case. Such rules rest on
the recognition that litigation is costly and that these
costs should not be imposed without good cause. For
example, defendants can move to dismiss for failure to
state a claim, which helps to ensure that “a plaintiff
with a largely groundless claim” may not undertake
expansive discovery “with the right to do so
representing an in terrorem increment of the
settlement value.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007) (internal quotation marks omitted). In
criminal cases, a “judicial determination of probable
cause” serves an analogous function as “a prerequisite
to extended restraint of liberty following arrest.”

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Gerstein v. Pugh, 420 US. 103, 114 (1975). In
denaturalization proceedings, the Court has likewise
insisted on “a preliminary showing of good cause”
before imposing the “serious consequences” that attend
the proceeding itself. United States v. Zucca, 351 U.S.
91, 99-100 (1956). A failure to satisfy any of these
sufficient-cause thresholds is a failure to show that the
case has sufficient merit to proceed.

In the case of a lawsuit brought by the EEOC under
Title VII, Congress added another such threshold: the
EEOC must ensure through an administrative
investigation that there is reasonable cause for the
complainant’s charges before filing suit on his or her
behalf. That requirement is readily explained by the
legislative history of the 1972 Act, which reflects
pronounced concern about “pit[ting] the overwhelming
financial strength and manpower of the Federal
Government” against employers who would “bear the
full economic brunt of defending themselves.” 118
Cong. Rec. 671 (1972) (statement of Sen. Gambrell).
Although Congress rejected the most radical measures
to address this concern, such as subsidizing defendants’
attorney’s fees in routine cases, see id., it did decide to
limit EEOC enforcement—unlike private enforcement,
see McDonnell Douglas Corp. v. Green, 411 U.S. 792,
798 (1973)—to cases where the EEOC has first
investigated and found reasonable cause. See Gen. Tel.
Co. of the Nw., 446 U.S. at 325 (“The 1972 amendments
... expanded the EEOC’s enforcement powers by
authorizing the EEOC to bring a civil action in federal
district court against private employers reasonably
suspected of violating Title VII.” (emphasis added)).

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In this case, the district court’s determination,
affirmed by the Eighth Circuit, that the EEOC “wholly
abandoned” its pre-suit obligations amounts to a ruling
that, rather than investigating and determining
whether the claims were potentially meritorious, the
EEOC shifted the burden to CRST to show that they
were not. The EEOC “did not interview any witnesses
or subpoena any documents to determine whether any
of [the claimants’) allegations were true.” Pet. App.
107a. None of the alleged harassers was interviewed
with respect to any claim. Nor did the EEOC make
reasonable-cause determinations as to the 67 claims at
issue here. Jd. In fact, in 27 of the 67 cases, the alleged
harassment had not yet occurred when the EEOC
issued its Letter of Determination. Jd. In 38 of the
remaining 40 cases, “the EEOC admits that it was not
even aware of the[] allegations until after the filing of
the Complaint”; the EEOC had instead “used discovery
in the instant lawsuit to find them.” Jd. at 108a.
Because the prescribed statutory pre-suit process—
including a threshold determination of reasonable
cause—defines the claims that the EEOC is entitled to
litigate, the EEOC did not have a “reasonable ground
for bringing suit” with respect to these 67 claims.
Christiansburg, 434 U.S. at 422.

Faced with the rare case in which the EEOC
“wholly abdicated its role in the administrative
process,” Pet. App. 213a n.24, the district court
reasonably concluded that dismissal with prejudice and
an award of attorney’s fees were warranted. The court
noted that, in a less egregious case, it “might have
stayed” the case rather than dismissing the defective

ot

claims. Jd. Here, however, “dismissal [was] a severe
but appropriate remedy” to avoid “ratify[ing] a ‘sue
first, ask questions later’ litigation strategy on the part
of the EEOC.” Id. at 214a.

The Eighth Circuit affirmed the dismissal. It
explained that Title VII vest. che district court with
“discretion” to decide whether to stay proceedings,
Pet. App. 115a (quoting 42 U.S.C. § 2000e-5(f)(1)), and
concluded that the district court had properly deemed
dismissal a “severe but appropriate remedy” in this
case, id. (quotation marks omitted). That holding—
which is not before the Court (and as to which the
EEOC chose not to seek review by this Court)—is fully
consistent with the Court’s recent decision in Mach
Mining. In Mach Mining, the Court explained that,
when a district court resolves a “limited dispute” over
the adequacy of conciliation in favor of the employer,
“the appropriate remedy is to order the EEOC to
undertake the mandated efforts to obtain voluntary
compliance.” 135 S. Ct. at 1656. The Court in Mach
Mining addressed only the conciliation requirement,
however; it did not consider a sweeping failure by the
EEOC, as here, to investigate, find reasonable cause,
and attempt conciliation. Mach Mining did not purport
to divest district courts of their remedial discretion in
that or any other circumstance. Indeed, the Court
explained its holding about the “appropriate remedy” in
a failure-to-conciliate case by pointing to the provision
of Title VII that “authoriz[es] a stay of a Title VII
action for that purpose,” i.e., for the purpose of
renewed conciliation. Id.; see 42 U.S.C. § 2000e-5(f)(1)
(authorizing district courts to stay proceedings for up

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to sixty days “pending ... further efforts of the
Commission to obtain voluntary compliance”). In this
case, by contrast, the EEOC did not just sue without
attempting to “obtain voluntary compliance.” 42 U.S.C.
§ 2000e-5(f)(1). It failed to undertake any investigation
or assessment of the 67 claims at issue here, suing
before it had any basis to conclude even that they were
claims worth conciliating. See 42 U.S.C. § 2000e-5(b)
(directing the EEOC to attempt conciliation “{i]f the
Commission determines after ... investigation that
there is reasonable cause to believe that the charge is
true”).

In any event, as the district court explained, the
effect of a stay under the circumstances presented here
would simply be to “ratify” the EEOC’s statutory
violation. Pet. App. 214a. It would mean that, if the
EEOC fails to investigate and find reasonable cause
before bringing suit, it can always do so at some later
point in the litigation (perhaps, as here, after the ©
defendant has done that work through extensive
discovery and numerous summary judgment motions).
It would substantially increase the EEOC’s leverage to
coerce settlement of uninvestigated, unevaluated, and
unconciliated claims if the defendant has to bear the
additional costs of a “do over.” This result would
effectively undo Congress’s decision to impose
threshold requirements before the EEOC may bring
suit, and would instead require the defendant to bear
the costs of the EEOC’s statutory violation.

** *

The Eighth Circuit and the EEOC would have
courts distinguish among the many ways in which a

56

defendant may prevail, selecting out those that go to
“the merits” of the EEOC’s case in order to determine
whether a fee award is permissible. This approach will
require courts to craft new rules to determine and
explain the proper treatment of various types of claim-
processing rules, conditions precedent, pleading
standards, immunity defenses, and limitations on
statutory coverage. The near certainty of inconsistent
results counsels against starting down this path at all.

If the Court does develop a new jurisprudence of
“merits-related” victories for fee-shifting purposes,
hewever, CRST’s victory here would qualify under any
reasonable standard. Establishing that the EEOC has
statutory authorization to sue is a necessary “element”
of its claim; the restrictions represent mandatory and
substantive limitations on the range of cases in which
employers may be liable to the EEOC; a central
purpose of the pre-suit conditions is to set a merits-
based threshold for initiating litigation; and the district
court concluded that the EEOC had not satisfied that
threshold requirement (or the others) before litigating
these claims.

In the end, this case presents a simple dilemma. If
the dismissal in this case goes to “the merits,” the
Eighth Circuit erred in applying its own “merits-only”
rule to deny CRST a fee award. And if the dismissal in
this case does not go to “the merits,” then it
demonstrates that the Eighth Circuit’s “merits-only”
rule cannot be squared with the core policy of Title
VII’s fee-shifting provision. In either event, the
decision below should be reversed.

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CONCLUSION

For the foregoing reasons, the judgment of the
court of appeals should be reversed.

Respectfully submitted,
JOHN H MATHIAS, JR. PAUL M.SMITH
JAMES T. MALYSIAK Counsel of Record
JENNER & BLOCK LLP JESSICA RING AMUNSON
353 N. Clark St. BENJAMIN M. EIDELSON*
Chicago, IL 60654 JENNER & BLOCK LLP
(312) 222-9350 1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

psmith@jenner.com

*Not admitted in DC; supervised
by principals of the Firm.

January 19, 2016

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0553%3A07. Public record. Not legal advice.