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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0553%3A13

## Record

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

## Text

Supromie. Cc unt, Us.

FILED
JAN 26 2355
No. 14-1375
= CLENK

In THE

Supreme Court of the Anited States

CRST VAN EXPEDITED, INC.,
Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Respondent.

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

BRIEF AMICI CURIAE OF THE EQUAL
EMPLOYMENT ADVISORY COUNCIL AND
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS SMALL BUSINESS LEGAL CENTER

IN SUPPORT OF PETITIONER
KAREN R. HARNED RAE T. VANN
ELIZABETH MILITO Counsel of Record

NATIONAL FEDERATION OF NT LAKIS, LLP
INDEPENDENT BUSINESS 1501 M Street, N.W.
SMALL BUSINESS LEGAL Suite 400

CENTER Washington, DC 20005
1201 F Street, N.W. rvann@ntlakis.com
Suite 200 (202) 629-5600
ae netesuna Mee deadens Covtns

Equal Employment

Attorneys for Amicus Curiae Advisory Council
National Federation of

Independent Business
Small Business Legal Center
January 2016

———
WILSON-EPES PRINTING CO. INC. — (202) 789-0096 - WasHINGToN, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIESG................c:c0cseceeeeeees
INTEREST OF THE AMICI CURIAE................
STATEMENT OF THE CASE .................ccc0000088
SUMMARY OF ARGUMENT ......0.0000......:cccccce000s

I. THE DECISION BELOW, WHICH
PURPORTS TO ABSOLVE THE EEOC
OF ANY LIABILITY FOR ATTORNEY’S
FEES IN CASES RESOLVED AGAINST
IT ON PROCEDURAL GROUNDS
RATHER THAN ON THE MERITS,
HAS NO BASIS IN TITLE VII AND
CONFLICTS WITH THIS COURT'S
DECISION IN CHRISTIANSBURG
GARMENT CO. v. EEOC ............0.c000000+

A. Title VII Does Not Limit The Award
Of Attorney's Fees And Costs To

B. This Court’s Ruling In Christiansburg
Garment Co. v. EEOC, Which
Established The Standard For Award-
ing Attorney's Fees To A Prevailing
Defendant, Involved Underlying
Claims That Were Dismissed On
Procedural Grounds ......................0000+-

(i)

ii
TABLE OF CONTENTS—Continued

Page

Il. THE EEOC’S FAILURE TO INVESTI-
GATE AND MAKE FACTUAL DETER-
MINATIONS AS TO INDIVIDUAL
CLAIMS AT THE ADMINISTRATIVE
STAGE RENDERS ITS SUBSEQUENT,
CLASS-BASED SUIT UNREASON-
ABLE ON ITS FACE. .............cccccsssssseeeseees 18

A. Under Title VII, The EEOC’s
Authority To Sue Is Conditioned
Upon Fulfillment Of All Pre-Suit
Administrative Requirements, In-
cluding Reasonable Investigation Of
The Underlying Charge ...................... 18

1. The scope of an EEOC lawsuit
cannot exceed that of the

underlying charge investigation... 21
2. Mach Mining is inapposite ............ 22

B. The EEOC Filed Suit Without Any
Evidence In Hand To Support Its
Class-Based Discrimination Claim..... 23

C. The EEOC’s Failure To Conciliate
Any Of The Class Members’ Claims
Prior To Suit Merely Compounded Its
Unreasonable Conduct........................ 28

TABLE OF CONTENTS—Continued

Ill. PERMITTING THE EEOC TO AVOID
ATTORNE\’S FEES SANCTIONS FOR
PURSUING PREDICTABLY UNSUC-
CESSFUL LITIGATION PREMISED
ON UNINVESTIGATED DISCRIMI-
NATION CLAIMS DEFEATS THE
PURPOSES AND OBJECTIVES OF
TITLE VII AND DISADVANTAGES
EMPLOYERS AND EMPLOYEES

Page

iv

TABLE OF AUTHORITIES
FEDERAL CASES Page(s)
Christiansburg Garment Co. v. EEOC, 434
ny SEIT iiictciniiceiniassnineeiteneniians passim
EEOC v. Allegheny Airlines, 436 F. Supp.
en 20, 28
EEOC v. American National Bank, 652
F.2d 1176 (4th Cir. 1981).......................... 20
EEOC v. Asplundh Tree Expert Co., 340
F.3d 1256 (11th Cir. 2003)........................ 28
EEOC v. Bailey Co., 563 F.2d 439 (6th Cir.
isi aicldilibansindiidiiainediniindinsititendaeianibabiniemnneds 21
EEOC v. Bass Pro Outdoor World, LLC,
1 F. Supp. 3d 647 (S.D. Tex. 2014)........... 21
EEOC v. Bloomberg LP, 967 F. Supp. 2d
EN HI cxinrerensrenncisnnteienininanignts 20, 33
EEOC v. Delight Wholesale Co., 973 F.2d
eee 21

EEOC v. E.I. DuPont de Nemours & Co.,
373 F. Supp. 1321 (D. Del. 1974), affd,
516 F.2d 1297 (3d Cir. 1975).................... 20

EEOC v. Freeman, __ F. Supp. 3d __,
2015 WL 5178420 (D. Md. Sept. 5, 2015) 30

EEOC v. Global Horizons, Inc., 100 F.

Supp. 3d 1077 (E.D. Wash. 2015)............. 26, 27
EEOC v. Harvey L. Walner Associates, 91
F.3d 963 (7th Cir. 1996).......................006+. 22

EEOC v. Jillian’s of Indianapolis, Ind.,
Inc., 279 F. Supp. 2d 974 (S.D. Ind.
i icchesnsnrastsinemnsinsinihetiteisindansadiimsiaineiaaaiie 20, 21, 22, 33

Vv
TABLE OF AUTHORITIES—Continued

Page(s)
EEOC v. Outback Steak House of Fla., Inc.,
520 F. Supp. 2d 1250 (D. Colo. 2007)....... 21
EEOC v. Peoplemark, Inc., 732 F.3d 584
SINS TI nnsiiiscindienianinciiienenssitaiesasinaegin 35
EEOC v. Pierce Packing Co., 669 F.2d 605
SS SII icnetencasnncissennainnbeiinindanaienscieseisas 28, 29
EEOC v. Propak Logistics, Inc., 746 F.3d
145 (4th Cir. 2014)................cccccccecceeeeeees passim
EEOC v. Shell Oil Co., 466 U.S. 54
SIE nicsinsiinieihadinantinaesiieanenappnenicedinaemmenn 9, 19, 21

EEOC. v. TriCore Reference Laboratories,
493 F. App’x 955 (10th Cir. Aug. 16,
I icsedpasiidannatiileenietibiiintbiabeiesnamenneeieiintanes 35

EEOC v. West Customer Management
Group, LLC, 2014 WL 4409920 (N.D. Fla.
July 28, 2014), report and recommenda-
tion adopted in part, 2014 WL 4435980
(N.D. Fla. Sept. 8, 2014), appeal
dismissed, No. 15-13649 (11th Cir. Oct.

EERE Senin arene 26, 30
Faragher v. City of Boca Raton, 524 US.

AIRES AER Re eae 25
Harris v. Forklift Systems, Inc., 510 U.S. 17

EASES PIRES eee 25
Hock nan v. Westward Communications,

LLC, 407 F.3d 317 (5th Cir. 2004) ........... 25, 26

Mach Mining, LLC v. EEOC, 135 S. Ct.
ee ctrtcesnnscseciiintiiniinnieminncsunmnnitel passim

vi
TABLE OF AUTHORITIES—Continued

Page(s)
Occidental Life Insurance Co. v. EEOC, 432
Se aT crintenienennieieneeionnineditiemmnesennean 19, 21
FEDERAL STATUTES
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. ..................0000e passim
42 U.S.C. § 2000e-2(a)(1).............ceceeeecceeeeeees 9,13
42 U.S.C. § 2000e-5(b) ......... eee eee 10, 19, 20
42 U.S.C. § 2000e-5(k).....................2. 9, 10, 13, 15
LEGISLATIVE HISTORY

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

Rt a ARS 14, 15, 19
FEDERAL REGULATIONS
29 C.F.R. § 1601.15(a) ..........ceccsceseeceseeseeseeees 19
29 C.F.R. § 1601.19(8) ..........cccecceceeseseeseeeeees 20
29 C.F.R. § 1601.21(a) .....cececcccescesseceseesseeeeees 20
29 CFR. § 1601.24 ooccccccccccccscsseceesesseeeseeeeee 24
29 C.F.R. § 1601.25 oo.ccccccccccccccsecsssesseseseeeeee 20
OTHER AUTHORITIES

Anthony P. Zana, A Pragmatic Approach to
EEOC Misconduct: Drawing A Line on
Commission Bad Faith in Title VII
Litigation, 73 Miss. L.J. 289 (2003) ......... 31

Black’s Law Dictionary (10th ed. 2014)....... 24

vii
TABLE OF AUTHORITIES—Continued

Page(s)

U.S. EEOC, Fiscal Year 2014 Performance
and Accountability Report (Systemic
Cases — Performance Measure 4)............. 32

U.S. EEOC, Fiscal Year 2015 Performance
and Accountability Report (Systemic
Cases — Performance Measure 4)............. 32

U.S. EEOC, Strategic Enforcement Plan
nencennsnsininneninnnianinnbeiasatnin 31, 32

IN THE

Supreme Court of the United States

No. 14-1375

CRST VAN EXPEDITED, INC.,

Petitioner,
v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Respondent.

On Writ of Certiorari to the

United States Court of Appeals
for the Eighth Circuit

BRIEF AMICI CURIAE OF THE EQUAL
EMPLOYMENT ADVISORY COUNCIL AND
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS SMALL BUSINESS LEGAL CENTER
IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council and
National Federation of Independent Business Small

Business Legal Center respectfully submit this brief
amici curiae in support of Petitioner and of reversal.’

' The parties have consented to the filing of this brief. No
counsel for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief. No person other than
amici curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.

2
INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (EEAC) is
a nationwide association of employers organized in
1976 to promote sound approaches to the elimination
of discriminatory employment practices. Its member-
ship includes over 250 major U.S. corporations,
collectively providing employment to millions of
workers. EEAC’s directors and officers include many
of the nation’s leading experts in the field of equal
employment opportunity. Their combined experience
gives EEAC a unique depth of understanding of
the practical, as well as legal, considerations relevant
to the proper interpretation and application of equal
employment policies and requirements. EEAC’s mem-
bers are firmly committed to the principles of non-
discrimination and equal employment opportunity.

The National Federation of Independent Business
(NFIB) Small Business Legal Center is a nonprofit,
public interest law firm established to provide legal
resources and be the voice for small businesses in the
nation’s courts through representation on issues of
public interest affecting small businesses. NFTB is the
nation’s leading small business association, with
offices in Washington, D.C. and all 50 state capitals.
Founded in 1943 as a nonprofit, nonpartisan organiza-
tion, NFIB’s mission is to promote and protect the
right of its members to own, operate, and grow their
businesses. NFIB represents 325,000 member busi-
nesses nationwide. The NFIB Small Business Legal
Center represents the interests of small business in
the nation’s courts and participates in precedent
setting cases that will have a critical impact on small
businesses nationwide, such as the case before the
Court in this action.

3

Many of amici’s members are employers, or repre-
sentatives of employers, subject to Title VII of the Civil
Rights Act of 1964 (Title VID, 42 U.S.C. §§ 2000e
et seq., as amended, and other federal employment
laws and regulations. As representatives of potential
defendants to Title VII discrimination charges and
lawsuits, amici’s members have a substantial interest
in the issue presented in this matter regarding the
propriety of awarding attorney’s fees to a prevailing
defendant where the EEOC’s failure to investigate or
attempt conciliation results in dismissal of a sub-
sequent Title VII lawsuit. The court below ruled,
erroneously, that an award of attorney’s fees and costs
is unavailable in the absence of a judicial determina-
tion on the merits of the underlying claim, and that
dismissal for failure to investigate or conciliate does
not constitute a merits decision.

As national representatives of many professionals
whose primary responsibility is compliance with equal
employment opportunity laws and regulations, amici
have perspectives and experience that can help the
Court assess issues of law and public policy raised
in this case beyond the immediate concerns of the
parties. Since 1976, EEAC and NFIB collectively
have participated as amicus curiae in hundreds of
cases before this Court and the federal courts of
appeals, many of which have involved important Title
VII questions. Because of their practical experience
in these matters, amici are well-situated to brief the
Court on the relevant concerns of the business
community and the significance of this case to
employers generally.

4
STATEMENT OF THE CASE

On September 27, 2007, Respondent U.S. Equal
Employment Opportunity Commission (EEOC) com-
menced a civil action against Petitioner CRST Van
Expedited, Inc. (CRST), accusing it of engaging
in unlawful sex discrimination against a class of
mostly unidentified women, in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.
$§ 2000e et seg. Pet. App. 34a. The suit was based on
a single charge of discrimination filed in December
2005 by charging party Monika Starke alleging that
she had been sexually harassed by two male drivers
who were assigned to train her. Pet. App. 165a.

Although the EEOC’s investigation initially focused
on Starke, it subsequently was expanded to include
other female drivers who either had worked with the
same male drivers or who had filed internal dis-
crimination complaints. Pet. App. 171a-180a. To that
end, the EEOC requested (and CRST provided)
contact information for all female drivers and student
drivers employed by the company during a two-year
period. Pet. App. 177a, 179a-180a.

Approximately two months later, the EEOC issued
a Letter of Determination notifying CRST that the
agency had reasonable cause to believe the company
had subjected Starke and “a class of employees
and prospective employees” to sexual harassment,
although it did not identify the individuals composing,
or the size of, the alleged class. Pet. App. 180a. The
letter invited CRST to participate in the conciliation
process, to which CRST responded by requesting a
meeting and expressing its desire to reach a voluntary
resolution. Id.

5

The EEOC refused to meet with CRST until it
submitted a conciliation “proposal.” Pet. App. 181a.
When pressed by CRST to present its own conciliation
demand, the EEOC responded by phone that it would
seek the appointment of a monitor to “examine the
employer’s workplace to discover and eliminate sexual
harassment, and relief for the class.” Pet. App. 182a.
When CRST asked for more information about the
class, the EEOC responded that it “was not able to
provide the names of all class members . . . or an
indication of the size of the class,” id., but that it would
“require as part of conciliation that CRST send a
letter to past and present employees to help identify
class members so settlements could be paid to them.”
Id. Shortly thereafter, CRST notified the EEOC
that given the agency’s failure to provide critical
information regarding the class, it did not see a
meaningful path to successful conciliation. That, in
turn, prompted the EEOC to declare conciliation a
failure. Pet. App. 182a-183a.

The EEOC subsequently filed suit alleging that
Starke and “a class of similarly situated female
employees” were subjected to a sexually hostile work
environment and that CRST had failed to prevent and
correct the harassment. Pet. App. 183a (citation
omitted). Again, the EEOC declined to identify the
size or composition of the alleged victim class. Pet.
App. 186a-187a. Although the class initially appeared
to be “relatively small,” Pet. App. 187a, it later became
clear to the district court that the EEOC “did not know
how many allegedly aggrieved persons on whose
behalf it was seeking relief [and that it] was using
discovery to find them.” Pet. App. 188a. During
discovery, the agency mailed close to 3,000 letters
to former female CRST employees inviting them
to participate in the suit. Jd. With CRST in the

6

unenviable position of facing a “continuously moving
target of allegedly aggrieved persons,” the court set a
firm deadline for the EEOC to identify its class. Pet.
App. 188a-189a.

When the deadline arrived, the EEOC had identified
approximately 270 women, a figure that increased
dramatically as the deadline approached. Pet. App.
189a. Even after the deadline had passed, the EEOC
advised CRST that its “[i]Jnvestigation is continuing,”
Pet. App. 190a (citation omitted), and that it planned
to amend its list as its “investigation and discovery ...
is conducted.” Pet. App. 190a n.16 (citation omitted).
In the end, the EEOC made only 150 women available
for deposition, and the court limited any recovery
to those individuals. Pet. App. 192a. The court
eventually ruled, through a series of dispositive
motions, that the EEOC was barred from seeking
relief for the majority of the women, including Starke.
Pet. App. 192a-193a.

As to the remaining 67 individuals, the trial court
ordered the EEOC to identify, with respect to each
aggrieved person, the date on which a charge was filed
and investigated, as well as the dates of the EEOC’s
Letter of Determination and on which conciliation
was attempted. The EEOC disclosed to the court
that while a handful of the women did file EEOC
charges at various points, one did not allege sexual
harassment at all. It also admitted that it did not
independently investigate any of the 67 individuals’
sexual harassment allegations, did not issue reason-
able cause findings, and did not attempt conciliation
as to those claims. The agency further conceded that
to the extent it looked into the individual allegations
at all, it was only in the context of investigating the
Starke charge. Pet. App. 204a-206a.

7

CRST subsequently filed a Motion for Order to
Show Cause why the EEOC’s claim on behalf of
the remaining 67 women should not be dismissed on
the ground that the agency had failed to fulfill its
pre-suit administrative obligations. Pet. App. 193a.
The trial court granted the motion, ruling that the
EEOC had “wholly abandoned” its statutory duty to
investigate and conciliate the claims of all 67 women
prior to instituting its lawsuit. Pet. App. 204a.

Thereafter, CRST moved for an award of attorney's
fees, arguing that the EEOC’s actions in bringing the
case were frivolous, unreasonable, and without
foundation. Pet. App. 1la. Applying the standard for
awarding attorney’s fees to prevailing defendants in
Title VII cases established by this Court in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412
(1978), the district court determined that such an
award was warranted because “(t]he EEOC’s failure to
investigate and attempt to conciliate the individual
claims constituted an unreasonable failure to satisfy
Title VII's prerequisites to suit.” EEOC v. CRST Van
Expedited, Inc., No. 07-CV-95-LRR, 2010 WL 520564,
at *7 (N.D. Iowa Feb. 9, 2010), vacated by 679 F.3d 657
(8th Cir. 2012). Accordingly, it ordered the EEOC to
reimburse CRST approximately $4.5 million, which
represented only a portion of the attorney’s fees and
other costs it incurred to defend the agency’s lawsuit.
Id. at *20.

On appeal, the Eighth Circuit affirmed dismissal of
the 67 individual claims, agreeing with the district
court that “the EEOC wholly failed to satisfy its
statutory pre-suit obligations as to these 67 women
....” Pet. App. 115a-116a. It also affirmed summary
judgment on the merits as to all but two claims. Pet.
App. 114a. Because those two claims were remanded

8

to the district court, the Eighth Circuit vacated the
award of attorney's fees and costs to CRST without
prejudice to reinstatement. Pet. App. 156a.

On remand, the EEOC voluntarily withdrew one of
the individual claims and settled the other, but in
doing so, agreed that CRST could renew its request for
attorney's fees. Pet. App. 9a. The trial court once
again found that the EEOC’s litigation conduct was
frivolous and unreasonable, and awarded CRST a total
of $4,189,296.10 in attorney’s fees, $413,387.58 in
out-of-pocket expenses, and $91,758.46 in taxable
costs. Pet. App. 84a-85a. Dissatisfied with the trial
court’s ruling, the EEOC appealed for a second time
to the Eighth Circuit, contending that it — and not
CRST — was the “prevailing party” for attorney’s fees
purposes. Pet. App. 17a-18a.

On appeal, the Eighth Circuit rejected the EEOC’s
contention that its class-based lawsuit — which was
brought on behalf of at least two individuals —
represented only one “claim.” Pet. App. 17a-18a. At
the same time, it found that the agency never formally
asserted that CRST was engaged in a pattern-
or-practice of sex discrimination. Pet. App. 18a.
Accordingly, to the extent that the district court
merely assumed that the EEOC’s lawsuit encom-
passed such a claim, and awarded attorney’s fees on
that basis, the Eighth Circuit held that the judgment
was erroneous. Id.

Second, the Eighth Circuit found that the district
court erred in construing the dismissal of the EEOC’s
individual claims for failure to satisfy its statutory
pre-suit obligations as a decision on the merits. Pet.
App. 23a-24a. It reasoned that because compliance
with pre-suit administrative requirements is not an
element of a substantive discrimination claim, a ruling

9

that the EEOC failed to do so cannot constitute a
decision on the merits for attorney’s fees purposes. /d.
Accordingly, it found that CRST was not a “prevailing
party” and thus was not entitled to an attorney’s fees
award. Id. After its petition for rehearing en banc was
denied, CRST filed a petition for writ of certiorari,
which this Court granted on December 4, 2015.

SUMMARY OF ARGUMENT

The Eighth Circuit incorrectly held that prevailing
defendants are not entitled to an award of attorney’s
fees and costs pursuant to Section 706(k) of Title VII
of the Civil Rights Act of 1964 (Title VID, 42 U.S.C.
§§ 2000e et seg., as amended, in the absence of a
judicial determination on the merits, and that
dismissal of an action brought by the U.S. Equal
Employment Opportunity Commission (EEOC) for
failure to comply with its statutory pre-suit obligation
to investigate and conciliate does noi constitute a
“merits” decision. Because it is contrary to Title VII's
text, policy aims, and purposes and is inconsistent
with this Court’s decision in Christiansburg Garment
Co. v. EEOC, 434 U.S. 412 (1978), the decision should
be reversed.

The EEOC was created by and is charged with
enforcing Title VII, which prohibits discrimination in
the terms, conditions or privileges of employment on
the basis of race, color, religion, sex or national origin.
42 U.S.C. § 2000e-2(aX1). The statute establishes “an
integrated, multistep enforcement procedure’ that ...
begins with the filing of a charge with the EEOC
alleging that a given employer has engaged in an
unlawful employment practice.” EEOC v. Shell Oil
Co., 466 U.S. 54, 62 (1984) (quoting Occidental Life
Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977) (footnote

10
omitted)). Although it is authorized to initiate civil
actions against employers it believes to have violated
the Act, the EEOC may not do so unless and until it
has discharged its statutory pre-suit administrative
requirements, including completing an investigation
of the charge. 42 U.S.C. § 2000e-5(b).

Title VII expressly authorizes courts to award a
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). It places no conditions on the court’s discretion
to award such fees, except to specify attorney's fees are
not available if the prevailing party is either the
EEOC or another federal government agency. Id.

In Christiansburg, this Court held that unlike
prevailing plaintiffs, prevailing defendants may be
awarded reasonable attorney’s fees and costs under
Section 706(k) only if the claim is found to have been
“frivolous, unreasonable, or groundless, or that the
plaintiff continued to litigate after it clearly became
so.” 434 U.S. at 422. The Court found that the
heightened standard was necessary so as not to
discourage plaintiffs from pursuing meritorious claims
for fear of losing and, as a result, having to reimburse
the defendant employer its fees and costs — which
likely could far exceed the plaintiff's own costs, as well
as the value of his or her claim. At the same time, the
Court recognized that by allowing courts to award fees
to prevailing defendants, Congress “also wanted to
protect defendants from burdensome litigation having
no legal or factual basis.” Jd. at 420.

Other than clarifying the standard under which a
prevailing defendant’s request for attorneys fees
should be evaluated, Christiansburg does not impose
any limitations on the availability of such awards, and

11

certainly does not restrict attorney’s fees to cases in
which the merits were fully adjudicated. To the
contrary, Christiansburg itself involved a claim for
attorney’s fees based on dismissal of an EEOC suit on
procedural grounds. Thus, the decision below, which
purports to absolve the EEOC of any liability for a
prevailing defendant’s attorney’s fees in cases dis-
missed based on anything other than a final adjudica-
tion of the discrimination claim on the merits, is
irreconcilable with Title VII's plain text and this
Court’s interpretation of it in Christiansburg.

There are many sound policy reasons for allowing
prevailing defendants to recover reasonable attorney's
fees incurred defending an ultimately unsuccessful
EEOC lawsuit bused on claims that were never
subjected to administrative review, including to
disabuse any notion that such “legal lapses and
violations ... have no consequence.” Mach Mining LLC
v. EEOC, 135 S. Ct. 1645, 1652-53 (2015). Indeed, in
its zeal to litigate large, high profile class-based suits,
the EEOC’s enforcement priorities seemingly have
focused less on informal resolution of discrimination
charges, as contemplated by Title VII, and more on
developing and maintaining a broad, class-based
litigation docket. Such conduct should not be tolerated
by the courts, and surely was in this case sufficiently
unreasonable, frivolous and baseless to justify award-
ing reasonable attorney's fees and costs to the
prevailing defendant.

12
ARGUMENT

I. THE DECISION BELOW, WHICH PUR-
PORTS TO ABSOLVE THE EEOC OF
ANY LIABILITY FOR ATTORNEY’S
FEES IN CASES RESOLVED AGAINST IT
ON PROCEDURAL GROUNDS RATHER
THAN ON THE MERITS, HAS NO
BASIS IN TITLE VII AND CONFLICTS
WITH THIS COURT’S DECISION IN
CHRISTIANSBURG GARMENT CO. ov.
EEOC

The Eighth Circuit below incorrectly held that
attorney's fees may not be awarded to a prevailing
defendant under Title VII of the Civil Rights Act
of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., as
amended, in the absence of a judicial determination on
the merits. Neither the statute’s plain text nor this
Court’s holding in Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978), restricts a court’s
discretion to award reasonable attorney's fees and
costs in cases involving unreasonable litigation
conduct leading to dismissal on procedural grounds —
here, the U.S. Equal Employment Opportunity
Commission’s (EEOC) failure to investigate, issue
a determination, and attempt conciliation prior
to bringing suit. Accordingly, the decision below is
erroneous and should be reversed.

A. Title VII Does Not Limit The Award Of
Attorney’s Fees And Costs To Parties
Who Have Prevailed On The Merits

Enforced by the EEOC, Title VII prohibits discrim-
ination against a covered individual “with respect to
his compensation, terms, conditions, or privileges of

13

employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(aX(1). Section 706(k) of the statute contains a fee-
shifting provision that permits a court to award a
prevailing party reasonable attorney’s fees:

In any action or proceeding under this subchapter
the court, in its discretion, may allow the
prevailing party, other than the Commission or
the United States, a reasonable attorney's fee
(including expert fees) as part of the costs, and the
Commission and the United States shall be liable
for costs the same as a private person.

42 U.S.C. § 2000e-5(k) (emphasis added).

Other than conferring upon courts the discretion
to award attorney's fees to a prevailing party,
Section 706(k) does not otherwise limit the specific
circumstances under which such awards are
warranted. See Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 418 (1978). Thus, nothing in the statute
differentiates between cases resolved on substantive
grounds and those resolved on procedural grounds
regarding the availability of attorney’s fees.

B. This Court’s Ruling in Christiansburg
Garment Co. v. EEOC, Which Estab-
lished The Standard For Awarding
Attorney’s Fees To A Prevailing De-
fendant, Involved Underlying Claims
That Were Dismissed On Procedural
Grounds

This Court has held with respect to a fee-shifting
provision that is materially indistinguishable from
Section 706(k) that prevailing plaintiffs “should
ordinarily recover an attorney's fee unless special

14

circumstances would render such an award unjust.”
Christiansburg, 434 U.S. at 416-17 (quoting Newman
v. Piggie Park Enters, Inc., 390 U.S. 400, 402 (1968)).
In Christiansburg Garment Co. v. EEOC, this Court
enunciated a different standard for determining
whether a prevailing defendant in a Title VII action is
entitled to recoup its reasonable attorney's fees and
costs. 434 U.S. 412 (1978). It held that a prevailing
defendant is entitled to an award of attorney’s fees and
costs when a court finds that the claim “was frivolous,
unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so.” Id. at
422. The Court reasoned that a heightened burden is
necessary so as not to “undercut the efforts of Congress
to promote the vigorous enforcement of the provisions
of Title VII.” Id. At the same time, it observed that
“while Congress wanted to clear the way for suits to be
brought under the Act, it also wanted to protect
defendants from burdensome litigation having no
legal or factual basis.” Jd. at 420. The Court also
noted that Title VII's attorney’s fee provision “explic-
itly provides that ‘the Commission and the United
States shall be liable for costs the same as a private
person.” Id. at 423 n.20 (citation omitted). Thus, it
found “no grounds for applying a different general
standard whenever the Commission is the losing
plaintiff.” Id.

Christiansburg involved a civil action filed by the
EEOC two years after the plaintiff received, but failed
to act on, a right-to-sue notice advising her of the
agencys disposition of her discrimination charge.
When the plaintiff initially filed her administrative
charge with the EEOC, Congress had not yet amended
Title VII authorizing the agency to sue in its own name
on behalf of discrimination victims. Once Congress did
so, see Equal Employment Opportunity Act of 1972,

15

Pub. L. No. 92-261, 86 Stat. 103 (1972), the EEOC
commenced a civil action based on the earlier-filed
charge. The employer moved for summary judgment,
arguing among other things that the charge had not
been “pending” as of the date the EEOC obtained
litigation authority and thus could not form the basis
of an EEOC lawsuit.

After its motion was granted, the employer moved
for an award of attorney’s fees pursuant to Section
706(k). The district court found that because the
EEOC’s “action in bringing the suit cannot be char-
acterized as unreasonable or meritless,” 434 U.S. at
415, the defendant was not entitled to an award of
attorney's fees. On appeal, the Fourth Circuit affirmed.

The question before this Court in Christiansburg
was not whether Section 706(k) applies only in cases
adjudicated on the merits. Rather, it was “what stand-
ard should inform a district court’s discretion in
deciding whether to award attorney's fees to a
successful defendant in a Title VII action.” Jd. at 417.
Rejecting the EEOC’s contention that attorney’s fees
are available to prevailing defendants only where the
unsuccessful plaintiff is found to have brought the
claim in bad faith, the Court instead adopted a less
stringent standard that respects Congress’s desire
“to clear the way for suits to be brought under the Act,”
id. at 420, while at the same time “protect/s] defend-
ants from burdensome litigation having no legal
or factual basis.” Jd. In affirming the trial court’s
decision, the Court credited its conclusion that the
EEOC’s action was not frivolous because it was based
on a novel issue of law regarding the proper construc-
tion of the 1972 Amendments.

The fact that the underlying complaint in
Christiansburg was dismissed on p) ocedural grounds

16

has been lost on the EEOC, which in its brief to this
Court misconstrues its holding as follows:

Petitioner contends that Christiansburg supports
its position here because the basis for attorney’s
fees in that case was not a merits determination,
but a finding that no charge was pending with the
EEOC when the EEOC obtained the right to sue
in its own name in 1972. But this Court did not
uphold an award of attorney’s fees on that basis;
rather, the courts below declined to award
attorneys’ fees and this Court affirmed that

determination.

EEOC Br. Opp. Cert. at 14. Of course, as noted, the
prevailing defendant’s motion for attorney’s fees in
Christiansburg was denied not because of the pro-
cedural posture of the case, but because the EEOC’s
prosecution — which raised novel questions regarding
the scope of its brand-new litigation authority — was
not, in the Court’s view, “unreasonable or meritless.”
434 U.S. at 415 (citation and internal quotation
omitted).

In this case, the Eighth Circuit concluded that, for
purposes of determining whether a prevailing defend-
ant should be awarded attorney’s fees, “proof that a
plaintiffs case is frivolous, unreasonable, or ground-
less is not possible without a judicial determination of
the plaintiffs case on the merits.” Pet. App. 18a
(citation omitted). And according to the EEOC, “The
determination that the plaintiffs legal position was
‘frivolous, unreasonable, or groundless’ depends on an
assessment of the merits of the plaintiffs claims for
relief.” EEOC Br. Opp. Cert. at 10 (citation omitted).

Such an interpretation does not square with
Title VII's text or with this Court’s analysis in

17

Christiansburg. Even if that view were facially
plausible, it still should not operate to preclude
recovery of attorney’s fees in a case like this one, in
which the merits of the class members’ claims were
never assessed by the EEOC at the administrative
stage. CRST was required to devote inordinate time
and resources to defend class-based claims that the
EEOC concedes were not fully developed even well
after the agency’s suit was filed.

Under the EEOC’s reading of Title VII and
Christiansburg, an employer like CRST that is hauled
into court by the EEOC on an unevaluated suspicion —
essentially, a hunch — of discrimination would have to
fergo its right to challenge the agency’s compliance
with its pre-suit statutory obligations, see Mach
Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), instead
expending substantial resources in discovery to
support a dispositive motion seeking dismissal of the
action on the merits. Assuming the EEOC were
unsuccessful in its efforts to “fish” for claims during
discovery, the employer’s motion likely would be
granted, and only then would it be permitted to move
for attorney’s fees. The employer will have spent tens
or hundreds of thousands, if not millions, of dollars
defending claims that may never have been brought
had they been subjected to a proper administrative
investigation. Such a result is contrary to the policy
considerations made by Congress and elucidated in
Christiansburg in favor of allowing the recovery of
attorney’s fees by prevailing defendants.

18

Il. THE EEOC’S FAILURE TO INVESTIGATE
AND MAKE FACTUAL DETERMINA-
TIONS AS TO INDIVIDUAL CLAIMS AT
THE ADMINISTRATIVE STAGE RENDERS
ITS SUBSEQUENT, CLASS-BASED SUIT
UNREASONABLE ON ITS FACE

In this case, as in far too many others, “when the
complaint was filed, the EEOC had failed to identify
the class of victims who could be entitled to monetary
relief ...." EEOC v. Propak Logistics, Inc., 746 F.3d
145, 152 (4th Cir. 2014). It could not identify the
victim class because it failed to investigate whether or
not any woman other than Starke had, in fact, been
subjected to conduct giving rise to a colorable sex
discrimination claim. That the EEOC would com-
mence a civil action in federal court on behalf of the
purported victim class despite never having inde-
pendently assessed whether and to what extent any
individual other than Starke stated a plausible claim
of sexual harassment smacks of unreasonableness,
and the Eighth Circuit erred in disallowing an award
of attorney’s fees to the prevailing defendant on that
basis. Accordingly, the decision below should be
reversed.

A. Under Title VII, The EEOC’s Authority
To Sue Is Conditioned Upon Fulfillment
Of All Pre-Suit Administrative Require-
ments, Including Reasonable Investiga-
tion Of The Underlying Charge

Unlike private litigants, the EEOC has a special
obligation to carefully evaluate the facts of every case
and seek informal resolution of meritorious claims
before undertaking costly and resource-intensive liti-
gation. Its failure to do so, coupled with an adverse

19

outcome in court, should be more than sufficient
to give rise to an attorney’s fees sanction under
Christiansburg.

This Court has observed that Title VII sets forth “an
integrated, multistep enforcement procedure’ that ...
begins with the filing of a charge with the EEOC
alleging that a given employer has engaged in an
unlawful employment practice.” EEOC v. Shell Oil
Co., 466 U.S. 54, 62 (1984) (quoting Occidental Life
Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977) (footnote
omitted)). Once a charge has been filed, Title VII
provides that “the Commission shall serve a notice of
the charge ... within ten days, and shall make an
investigation thereof.” 42 U.S.C. § 2000e-5(b).

When first enacted, Title VII gave the EEOC
authority to prevent and correct discrimination
through this administrative framework of charge
investigations and, where appropriate, informal con-
ciliation, but not the authority to litigate. Section
706(b) of Title VII, 42 U.S.C. § 2000e-5(b). In 1972,
Congress amended Title VII to authorize the EEOC to
bring a civil lawsuit against private employers in its
own name, both on behalf of alleged victims and in the
public interest. Equal Employment Opportunity Act
of 1972, Pub. L. No. 92-261, 86 Stat. 103 (1972).

“Although the 1972 amendments provided the
EEOC with the additional enforcement power of insti-
tuting civil actions in federal courts, Congress
preserved the EEOC’s administrative functions in
§ 706 of the amended Act.” Occidental Life, 432 U.S.
at 368 (quoting Alexander v. Gardner-Denver Co., 415
U.S. 36, 44 (1974)). The EEOC’s procedural regula-
tions also reflect this Congressional mandate, provid-
ing that “[t]he investigation of a charge shall be made
by the Commission ....” 29 C.F.R. § 1601.15(a) (emphasis

20

added). Whenever the agency “completes its inves-
tigation . . . [and finds] no[] reasonable cause to believe
that an unlawful employment practice has occurred
or is occurring as to all issues addressed in the
determination, the Commission shall issue a letter of
determination” to that effect. 29 C.F.R. § 1601.19(a)
(emphasis added). Where the EEOC does find reason
to believe discrimination occurred, the EEOC may
issue a determination “based on, and limited to, evi-
dence obtained by the Commission” during the
investigation. 29 C.F.R. § 1601.21(a); only when the
EEOC is “unable to obtain voluntary compliance,”
29 C.F.R. § 1601.25, through “informal methods of
conference, conciliation and persuasion” may it initi-
ate a public enforcement action. 29 C.F.R. § 1601.24;
see also 42 U.S.C. § 2000e-5(b).

Accordingly, the EEOC’s pre-suit administrative
process involves several distinct stages: (1) providing
notice of the charge; (2) undertaking an investigation;
(3) conducting a post-investigation determination of
the merits of the charge; and (4) if reasonable cause is
found, attempting to eliminate unlawful practices
through conciliation. Id. Nevertheless, “Each step in
the process — investigation, determination, concilia-
tion, and if necessary, suit — is intimately related to
the others.” EEOC v. Allegheny Airlines, 436 F. Supp.
1300, 1306 (W.D. Pa. 1977); see also EEOC uv.
Bloomberg LP, 967 F. Supp. 2d 802, 810 (S.D.NLY.
2013); EEOC v. Jillian’s of Indianapolis, Inc., 279 F.
Supp. 2d 974, 979 (S.D. Ind. 2003). In addition, the
“completion of the full administrative process is a
prerequisite to the EEOC’s power to bring suit in its
own name.” EEOC v. Am. Nat'l Bank, 652 F.2d 1176,
1186 (4th Cir. 1981); EEOC v. E.I. DuPont de Nemours
& Co., 373 F. Supp. 1321, 1333 (D. Del. 1974), affd,
516 F.2d 1297 (3d Cir. 1975).

21

1. The scope of an EEOC lawsuit
cannot exceed that of the underlying
charge investigation

The EEOC generally is permitted to pursue in
litigation any suspected violation that grows out of
facts uncovered during a “reasonable investigation” of
the underlying discrimination charge. See EEOC uv.
Delight Wholesale Co., 973 F.2d 664, 668-69 (8th Cir.
1992). This “reasonable investigation” rule restricts
the EEOC from altogether circumventing Title VII's
“integrated, multistep enforcement procedure,” Shell
Oil, 466 U.S. at 62 (citation omitted), by including in
a lawsuit claims that were never subject to an
investigation, reasonable cause determination, and
conciliation. See Delight Wholesale Co., 973 F.2d at
668-69; EEOC v. Bailey Co., 563 F.2d 439, 446 (6th
Cir. 1977); EEOC v. Outback Steak House of Fla., Inc.,
520 F. Supp. 2d 1250, 1264 (D. Colo. 2007); Jillian’s,
279 F. Sup, 2d at 979-81 (S.D. Ind. 2003); see also
EEOC v. Bass Pro Outdoor World, LLC, 1 F. Supp. 3d
647, 671 (S.D. Tex. 2014) (noting that the EEOC “can
bring an enforcement action only with regard to
unlawful conduct that was discovered and disclosed
in the pre-litigation process”) (citations omitted). To
permit otherwise would offend this Court’s, and Con-
gress’s, insistence that Title VIT’s “overall enforcement
structure [should be] a sequential series of steps
beginning with the filing of a charge with the EEOC.”
Occidental Life, 432 U.S. at 372.

“Thus, while ‘[t]he EEOC may seek relief on behalf
of individuals beyond the charging parties and for
alleged wrongdoing beyond those originally charged,”
it ‘must discover such individuals and wrongdoing

during the course of its investigation.” Pet. App. 109a
(citations omitted). Indeed, even as the Eighth Circuit

22

below acknowledged, “The relatedness of the initial
charge, the EEOC’s investigation and conciliation
efforts, and the allegations in the complaint is
necessary to provide the defendant-employer adequate
notice of the charges against it and a genuine oppor-
tunity to resolve all charges through conciliation.”
Pet. App. 110a (citations omitted).

Lower courts therefore have made abundantly clear
that an EEOC lawsuit must be “the product of the
investigation that reasonably grew out of the
underlying charges,” as distinguished from facts
gathered for the first time in litigation. Jillian’s, 279
F. Supp.2d at 980. In short, the EEOC may not
use discovery “as a fishing expedition” to uncover
violations. EEOC v. Harvey L. Walner Assocs., 91 F.3d
963, 971-72 (7th Cir. 1996).

2. Mach Mining is inapposite

In Mach Mining v. EEOC, this Court held that
courts may review the sufficiency of the EEOC’s
compliance with its mandatory, pre-suit conciliation
obligations. 135 S.Ct. 1645 (2015). Acknowledging
that Title VII gives the EEOC broad discretion
regarding what matters to conciliate and when to
conclude such efforts, the Court also found that Con-
gress did not leave all pre-suit matters to the EEOC’s
sole discretion. For instance, if the EEOC made no
effort whatsoever to conciliate prior to filing suit,
“Title VII would offer a perfectly serviceable standard
for judicial review: Without any ‘endeavor’ at all, the
EEOC would have failed to satisfy a necessary
condition of litigation.” Id. at 1652.

The Court explained that Title VII's conciliation
provision — specifically, its “conference, conciliation
and persuasion” language — provides a concrete

23

roadmap as to what constitutes an adequate con-
ciliation effort on the EEOC’s part. Those terms
“necessarily involve communication between parties,
including the exchange of information and views,”
id., on the alleged discriminatory employment
practice. Accordingly, in order to meet its conciliation
obligation, the EEOC “must tell the employer about
the claim — essentially, what practice has harmed
which person or class — and must provide the employer
with an opportunity to discuss the matter in an effort
to achieve voluntary compliance.” Jd.

While helpfully outlining a standard under which
EEOC conciliation efforts are to be assessed, Mach
Mining does not reach the question presented here,
that is, whether a prevailing defendant’s entitlement
to attorney's fees is dependent upon a _ judicial
determination on the merits, nor does it address the
consequences of the EEOC’s failure to investigate
individual claims prior to filing a class-based lawsuit.
Thus, the EEOC’s claim that Mach Mining “confirms
the correctness of the court of appeals’ ruling” in this
case, EEOC Br. Opp. Cert. at 9, is incorrect.

B. The EEOC Filed Suit Without Any
Evidence In Hand To Support Its Class-
Based Discrimination Claim

It follows that dismissal of an EEOC lawsuit
based on claims that were not subject to proper inves-
tigation justifies an award of attorney’s fees under
Christiansburg. In particular, when the EEOC files
suit without first having determined whether the
evidence it needs to win actually exists, the lawsuit
cannot be considered anything but lacking foundation,

24

and the agency’s actions deemed both frivolous’? and
unreasonable. As the Fourth Circuit has observed:

No doubt Congress was aware that assessing
attorneys’ fees against the EEOC when it brings a
groundless suit might provide a disincentive
for the agency to litigate meritorious cases. But it
was not unreasonable for Congress to expect the
Commission, with its store of expertise and ex-
perience, to recognize a baseless suit before being
told the same by a federal court. For this reason,
“[w]hen a court imposes fees on a plaintiff who has
pressed « ‘frivolous’ claim, it chills nothing that is
worth encouraging.”

Propak Logistics, Inc., 746 F.3d at 155 (citation

omitted).

In EEOC v. Propak Logistics, Inc., the Fourth
Circuit affirmed an attorney’s fee award to a prevail-
ing defendant in a class action brought by the EEOC,
finding that “the EEOC acted unreasonably in filing
the employment discrimination complaint, because
events that occurred during the EEOC’s administra-
tive investigation precluded the EEOC from obtaining
either injunctive or monetary judicial relief.” 746 F.3d
145, 147 (4th Cir. 2014. It credited the trial court’s
conclusion that the EEOC’s lawsuit “effectively was
moot at its inception,” id. at 152, in part, because the
agency had failed through its administrative inves-
tigation to identify a specific class of victims entitled
to monetary relief. Id. The Fourth Circuit found that
the trial court’s decision to award attorney’s fees to the
prevailing defendant “reflected proper consideration of

2 The term “frivolous” is defined as “[ljacking a legal basis or
legal merit; not reasonably purposeful.” Black’s Law Dictionary
(10th ed. 2014).

25

the Christiansburg standard by assessing whether the
EEOC acted unreasonably in initiating the litigation.”
Id. (footnote omitted).

Here, the EEOC accused CRST of violating Title VII
by maintaining a sexually hostile work environment
as to a substantial number of women. Yet, because it
failed to investigate all but one of the women’s claims,
the EEOC could not have gone into court with any
evidence with which to establish a prima facie case of
sexual harassment as to the alleged class. In Harris
v. Forklift Systems, Inc., this Court held that “[w]hen
the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult,’ that is ‘sufficiently
severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment,’ Title VII is violated.” 510 U.S. 17, 21
(1993) (citations omitted).

In Faragher v. City of Boca Raton, the Court further
explained:

(I]n order to be actionable under the statute, a
sexually objectionable environment must be both
objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive,
and one that the victim in fact did perceive to be
so. We directed courts to determine whether an
environment is sufficiently hostile or abusive
by ‘looking at all the circumstances,’ including
the ‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an

employee’s work performance.’
524 U.S. 775, 787-88 (1998) (citations and quotations
omitted); see also, eg., Hockman v. Westward

26

Communs., LLC, 407 F.3d 317, 326 (5th Cir. 2004) (the
conduct in question “must be ‘so severe [or] pervasive
that it destroys a protected classmember’s opportunity
to succeed in the work place”) (citation omitted). In
this case, the EEOC admittedly conducted no inves-
tigation to determine whether any of the class
members, other than Starke, could assert even a
colorable claim of sexual harassment. Despite having
no factual or legal foundation on which to build its
case, the EEOC nevertheless proceeded to court — only
to have all but one claim dismissed with prejudice.

No reasonable jury could have found the evidence
in this case sufficient to sustain a Title VII claim,
and the EEOC, which is charged with enforcing
the nation’s employment laws, should have
recognized that fact. Rather than do so, the EEOC
continued to press a baseless claim long after it
should have been dismissed, imposing upon
[CRST] years of litigation at enormous expense,
both in terms of time and money. Disallowing
attorneys’ fees and expenses under the circum-
stances of this case would constitute a manifest
injustice.
EEOC v. W. Customer Mgmt. Grp., LLC, 2014 WL
4409920, at *5 (N.D. Fla. July 28, 2014), report and
recommendation adopted in part, 2014 WL 4435980
(N.D. Fla. Sept. 8, 2014), appeal dismissed, No. 15-
13649 (llth Cir. Oct. 22, 2015); see also EEOC v.
Global Horizons, Inc., 100 F. Supp. 3d 1077, 1079 (E.D.
Wash. 2015) (“To balance Title VITs purpose with the
need to ensure that businesses are not forced to
litigate baseless discrimination claims, Congress
imposed a statutory duty on the EEOC to provide
notice to an employer of the charged discriminatory
practice, investigate the charge, and conciliate with

27

the business before filing a lawsuit. Title VII and
Supreme Court case law encourages the EEOC to
utilize these processes to ensure that a lawsuit is filed
reasonably, with foundation, and is not frivolous,
imposing a potential award of attorney’s fees against
the EEOC if it files a lawsuit that did not meet these
standards”).

The EEOC possesses (perhaps above all other
would-be plaintiffs) sufficient “expertise and experi-
ence[] to recognize a baseless suit before being told the
same by a federal court.” Propak, 746 F.3d at 155. For
that reason, the agency should not be permitted
to escape unpunished for pressing claims that, had
it complied with its administrative requirements, it
would have discovered are meritless. As the district
court noted, “When it is the EEOC, as opposed to an
individual, bringing suit, Title VII imposes an addi-
tional claim to relief. That is, in addition to proving
the usual elements of a sexual harassment claim, the
EEOC must also establish that it pursued an admin-
istrative resolution.” Pet. App. 58a-59a.

Therefore, in deciding whether or not fees should be
awarded to a prevailing defendant in such a case,
courts can and should evaluate the extent to which the
agency's non-compliance at the administrative stage
rendered a subsequent lawsuit baseless or unrea-
sonable. “Although the Court is not reviewing the
individual sufficiency of the EEOC’s reasonable-cause
determination or conciliation process, the Court must
consider the information discovered (or failed to be
discovered) during these processes in order to assess
whether the EEOC filed the lawsuit with foundation
or whether the filing was reasonable or frivolous.”
Global Horizons, 100 F. Supp. 3d at 1080.

28

C. The EEOC’s Failure To Conciliate Any
Of The Class Members’ Claims Prior To
Suit Merely Compounded Its Unreason-
able Conduct

The EEOC’s failure to investigate all but one of the
purported claims on which it brought suit in turn
prevented it from making sound factual determina-
tions and engaging in meaningful conciliation as
to meritorious claims, which only compounded the
unreasonableness of its actions in this matter. See
EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256,
1260 (11th Cir. 2003). The importance of proper
charge investigation to meaningful fulfillment of the
EEOC’s statutory conciliation duties is profound. See
EEOC v. Allegheny Airlines, 436 F. Supp. 1300, 1305-
06 (W.D. Pa. 1977) (emphasis added).

Accordingly, when the EEOC wholly abandons its
responsibility to investigate, as it did here, the agency
undermines its own ability to perform the next steps
in the process. The investigation serves as the
foundation for all that comes after, and without it, the
agency deprives the employer of any meaningful
opportunity to conciliate a claim in lieu of litigation.

As the Ninth Circuit observed in Pierce Packing:

The Commission’s functions of investigation,
decision of reasonable cause and conciliation are
crucial to the philosophy of Title VII. It is difficult
to believe that Congress directed the Commission
to make a determination of reasonable cause on
the merits of a charge and nevertheless contem-
plated that the Commission could institute such
litigation before it makes such a determination.
Similarly, it is difficult to conclude that Congress
directed the Commission to conciliate and then

29

authorize it to initiate adversary proceedings
before the possibility of voluntary compliance has
been exhausted.

EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th
Cir. 1982) (citation omitted).

In this case, the “procedural and regulatory defects
committed by the EEOC were clearly cognizable at an
early stage in this litigation’s history. The EEOC’s
obvious disregard for such promulgated regulations
is the apex of unreasonableness.” Jd. at 609 (citation
omitted). Among other things, the EEOC admitted
that it conducted no investigation into any of the 67
claims that survived discovery, and that roughly one-
third of those claims did not even arise until after the
agency's civil complaint was filed. Pet. App. 204a-
205a. Of the 40 women whose claims did emerge prior
to suit, the EEOC actually knew about only two of
them going into court, and resorted to discovery to find
the others. Pet. App. 205a.

When the EEOC presses in litigation claims that (1)
were not developed in an investigation and thus were
not ripe for meaningful conciliation discussions and (2)
it should have known were destined to fail for lack of
evidence, the prevailing employer should not, in the
end, be left holding the bag.

30

Ill. PERMITTING THE EEOC TO AVOID
ATTORNEY'S FEES SANCTIONS FOR
PURSUING PREDICTABLY UNSUC-
CESSFUL LITIGATION PREMISED ON
UNINVESTIGATED DISCRIMINATION
CLAIMS DEFEATS THE PURPOSES AND
OBJECTIVES QF TITLE VII AND
DISADVANTAGES EMPLOYERS AND
EMPLOYEES ALIKE

[Regardless of the potential] public policy reasons
for exercising caution when considering an award
of attorneys’ fees against a plaintiff, as well as the
implications of such an award against the EEOC,
[courts must remain mindful] of the impact
baseless lawsuits have on employers and busi-
nesses, particularly when they are backed by the
full force, and seemingly unlimited purse, of the
government.

EEOC v. W. Customer Mgmt. Grp., LLC, 2014 WL
4409920, at *5. Indeed:

Many employers are inclined to conciliate and
settle as it is often more efficient than ultimately
winning a case on the merits. The current stat-
utory scheme places an employer in the predica-
ment of attempting to amiably negotiate with an
agency whose principles are sometimes best
served by making an example of an employer.
Logically, expending resources defending invalid
lawsuits may have the effect of hiring reductions,
downsizing and even possibly forcing small com-
panies out of operation. Furthermore, the nega-
tive stigma of discrimination claims can foresee-
ably injure a company’s reputation, recruiting and
ability to conduct normal day-to-day business.

31

Anthony P. Zana, A Pragmatic Appreach to EEOC
Misconduct: Drawing A Line on Commission Bad
Faith in Title VII Litigation, 73 Miss. L.J. 289, 319-20
(2003) (footnotes omitted).

The Christiansburg standard itself “reflects a deter-
mination to head off unjustified litigation.” Propak
Logistics, Inc., 746 F.3d at 155. Litigation that is
procedurally infirm can be, and often is, extremely
damaging to the defendant, regardless of the merit (or
lack thereof) of the underlying claim. Moreover, “A
party forced to defend against a groundless lawsuit is
prejudiced every bit as much if the litigation is brought
by a federal agency as if it were commenced by a
private party.” Id.

The EEOC in particular brings suit against a wide
range of employers for whom the defense
of lawsuits may be prohibitively expensive.
Christiansburg was sensitive to this problem,
noting that ‘many defendants in Title VII claims
are small- and moderate-size employers for whom
the expense of defending even a frivolous claim
may become a strong disincentive to the exercise
of their legal rights.’

Id.

The EEOC’s current enforcement strategy places
particular emphasis on class-based systemic and
pattern-or-practice discrimination litigation.’ In its

3 According to the EEOC’s Strategic Enforcement Plan (SEP)
for Fiscal Years 2013-2016, of particular interest to the EEOC
are “issues that will have broad impact because of the number
of individuals, employers or employment practices affected.” U.S.
EEOC, Strategic Enforcement Plan FY 2013-2016, at III.A.1.,
available at http//www.eeoc.gov/eeor/plan/sep.cfm (last visited
Jan. 25, 2016).

32

Strategic Enforcement Plan (SEP) for Fiscal Years
2013-2016, for instance, the EEOC has committed to
progressively increasing the percentage of systemic
cases on its active litigation docket each fiscal year.‘
To that aim, the agency has established a specific,
numerical quota that it expects its enforcement staff
to meet, largely ignoring objections from the business
community that such an approach would encourage
hasty, insufficient systemic charge investigations and
detract from meaningful, pre-suit settlement efforts."
Although the EEOC’s current SEP requires field
offices to progressively increase the percentage of
systemic cases on their active litigation dockets, it
gives no indication whatsoever that pre-suit charge
resolution or meaningful investigation are agency
priorities or even significant concerns. Such policies
incentivize staff to bypass investigation and pre-suit
conciliation in favor of high-profile, class-based law-
suits that are likely to end, as this one did, in
dismissal. Even if the case eventually produces some
measure of victim-specific relief, it typically is at the
expense of the individual charging party whose
original claims often remain pending for years.

To the extent that the EEOC has formalized
enforcement tactics that are at odds with the purposes

*U.S. EEOC, SEP FY 2013-2016, available at http//www.eeoc.
gov/eeoc/plan/sep.cfm (last visited Jan. 25, 2016).

5 The agency has met or exceeded the SEP active systemic
litigation targets in the last two fiscal years. See U.S. EEOC,
Fiscal Year 2014 Performance and Accountability Report
(Systemic Cases — Performance Measure 4), available at http:/
www.eeoc,gov/eeoc/plan/20l4par.pdf (last visited Jan. 25, 2016)
and U.S. EEOC, Fiscal Year 2015 Performance and Account-
ability Report ae ae ~ , ee ee “

(last visited Jan. 25,2016).

33

and objectives of Title VII, it is now more important
than ever that the courts retain the discretion to
sanction the agency for such litigation abuses. A
particularly effective deterrent is the award of
attorney's fees to a prevailing defendant where it is
determined that the EEOC’s failure to investigate
results in the filing, and eventual dismissal, of a
groundless lawsuit.

Moreover, as noted above, although the EEOC
generally is permitted to pursue in litigation any
statutory violation growing out of facts uncovered
during a “reasonable investigation” of an underlying
charge, the agency must actually investigate prior to
suit in order to invoke that rule. See Delight Wholesale
Co., 973 F.2d at 668-69. Notwithstanding Title VII's
mandate that the EEOC must investigate and
conciliate prior to resorting to litigation, the agency in
recent years has embarked on a disturbing pattern of
“naming everyone and asking questions later.” Pet.
App. 190a (citation and internal quotation omitted).
See also Propak Logistics, Inc., 746 F.3d at 152-54
(dismissing class lawsuit because EEOC had not
identified a specific class of victims during its
investigation); EEOC v. Freeman, __ F. Supp. 3d ___,
2015 WL 5178420, at *1 (D. Md. Sept. 3, 2015) (finding
that the EEOC acted unreasonably in proceeding
with litigation even after defendant “revealed the
inexplicably shoddy work” of its expert witness);
Bloomberg, 967 F. Supp. 2d at 816 (S.D.N.Y. 2013)
(recognizing “where, as here, the EEOC completely
abdicates its role in the administrative process, the
appropriate remedy is to bar the EEOC from seeking
relief . . . and dismiss the EEOC’s Complaint”);
Jillian’s, 279 F. Supp. 2d at 980 (granting summary
judgment in favor of employer on nationwide class
allegations because “[t]he EEOC’s investigation of the

34

four charges was conducted entirely with respect to
Jillian’s Indianapolis. Its Amended Complaint,
alleging a nationwide class, has insufficient basis in
its actual investigation”).

The EEOC’s rush to litigate claims that it never
examined at the charge investigation stage, or never
attempted to resolve through conciliation, confirms
amici’s growing concern that the agency effectively
has abandoned its commitment to pursue meaningful
administrative charge resolution, choosing instead the
more expedient, high-profile litigation route. Indeed,
amici are extremely troubled by the EEOC’s recent
efforts to expand its own authority under Title VII,
while at the same time working to sharply curtail the
role of the courts in policing its enforcement activities.
See, e.g., Mach Mining, 135 S. Ct. at 1650 (where the
EEOC argued unsuccessfully that its pre-suit con-
ciliation efforts are not subject to any measure of
judicial review); Propak Logistics, Inc., 746 F.3d at
149-150 (where the EEOC argued unsuccessfully that
the doctrine of laches can never be applied when the
government is the plaintiff). Allowing the decision
below to stand would invite the EEOC to ignore its
statutorily-mandated pre-suit requirements without
any meaningful repercussions. As this Court observed
in Mach Mining, “[wle need only know — and know
that Congress knows — that legal lapses and violations
occur, and especially so when they have no conse-
quence.” 135 S. Ct. at 1652-53 (emphasis added).

Title VII actions often are complex, time-consuming,
and very costly to defend. This is especially true of the
substantial number of Title VII cases brought against
small to mid-sized employers whose litigation re-
sources often pale in comparison to those of the federal
government. See Christiansburg, 434 U.S. at 423 n.20

35

(noting that “many defendants in Title VII claims are
small- and moderate-size employers for whom the
expense of defending even a frivolous claim may
become a strong disincentive to the exercise of their
legal rights”). The rule created by the court below, if
allowed to stand, essentially would create a “get out of
jail free card” for the EEOC — leaving a prevailing
defendant on the hook for substantial attorney’s fees
and costs for claims that never should have been
brought in the first place. See, e.g., Pet. App. 84a
(awarding CRST $4,189,296.10 in attorneys’ fees,
$91,758.46 in costs, and $413,387.58 in out-of-pocket
expenses); EEOC v. Peoplemark, Inc., 732 F.3d 584,
587, 591-92 (6th Cir. 2013) (affirming lower court’s
order that EEOC reimburse employer nearly $800,000
in attorney's fees and costs in having to defend against
Title VII lawsuit that EEOC continued to pursue even
after it should have known it had no merit); EEOC. v.
TriCore Reference Labs., 493 F. App’x 955, 960-61
(10th Cir. Aug. 16, 2012) (upholding award of over
$750,000 in attorneys fees and costs because
the EEOC knew or had reason to know that its
lawsuit was “frivolous, unreasonable, and without
foundation”).

36
CONCLUSION

For all of the foregoing reasons, the decision below
should be reversed.

Respectfully submitted,
KAREN R. HARNED RAE T. VANN
ELIZABETH MILITO Counsel of Record

NATIONAL FEDERATION OF NT LAKIS, LLP
INDEPENDENT BUSINESS 1501 M Street, N.W.

SMALL BUSINESS LEGAL Suite 400
CENTER Washington, DC 20005
1201 F Street, N.W. rvann@ntlakis.com
Suite 200 (202) 629-5600
a Att a
ote Equal Employment

Attorneys for Amicus Curiae Advisory Council
National Federation of

Independent Business
Small Business Legal Center

January 2016

- wr ome

=Se

i ae

— ah etaly« diet abudients dete cts

Ts

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0553%3A13. Public record. Not legal advice.