Amicus Curiae Brief — United Telecommunications, Inc. v. Saffels

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

UNITED TELECOMMUNICATIONS, INC., et al.,

- Petitioners,

DALE E. SAFFELS, United States District Judge

for the District of Kansas,

Respondent.

(Phyllis Wilson Hoffman and Equal Employment

Opportunity Commission, Real Parties in Interest. )

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES

OF AMERICA IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

STEPHEN A. BOKAT

Counsel of Record

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

of the United States

—_

WILSON - Eres PRINTING Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1002

UNITED TELECOMMUNICATIONS, INC., et al.,

Petitioners,

Vv.

DALE E. SAFFELS, United States District Judge

for the District of Kansas,

Respondent.

(Phyllis Wilson Hoffman and Equal Employment

Opportunity Commission, Real Parties in Interest.)

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

MOTION OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

The Chamber of Commerce of the United States

(“Chamber”) hereby moves for leave to file the attached

brief amicus curiae in support of the petition for cer-

tiorari in this case pursuant to Supreme Court Rule 36.1.

This motion is necessary because Ms. Hoffman, a real

party in interest, has not consented to the filing of the

brief. The petitioner, United Telecommunications, Inc.,

the respondent, Honorable Dale E. Saffels, and the So-

licitor General, on behalf of the EEOC, have consented

to the filing.1 This amicus brief is timely filed under

Supreme Court Rule 36.1, because it is filed within the

time allowed for the filing of a brief in opposition to

the petition for certiorari.”

This case arose when the EEOC intervened in a pri-

vate civil action filed by an individual, prevailed in its

effort to be deemed class representative, and sought to

pursue class-wide relief. The Tenth Circuit’s disposition

of the case raises a problematic issue that requires reso-

lution by this Court. That issue is whether the enforce-

ment scheme of Title VII permits the EEOC to intervene

in a private action and independently pursue class claims

of employment discrimination when it has not taken those

claims through its administrative procedures and the

named plaintiff has not obtained class certification.

The Chamber is concerned about the possible ramifica-

tions of this decision in the business community, where

an employer can now be subjected to class suit without

the procedural protections afforded by the requirements

that the EEOC investigate, determine reasonable cause,

and attempt to conciliate before litigating, and that pri-

vate plaintiffs obtain class certification before proceed-

ing with class litigation. Absent these restraints, the

Commission has a built-in incentive to avoid the demand-

ing processes of investigation and conciliation that are

prerequisites to suing in its own name, since it can

achieve the same result with less bother simply by in-

tervening in a private action. And plaintiffs seeking to

represent a class would be able to avoid meeting the

strict requirements of Fed. R. Civ. P. 23 simply by seek-

ing EEOC intervention.

1 Copies of the consent letters are being filed simultaneously with

the attached brief.

2 The Solicitor General was granted an extension of time until

February 14, 1985 within which to file a response to the petition

for certiorari.

As the largest federation of business organizations and

individuals in the country and the principal voice of the

American business community, the Chamber is well-

suited to present the broad interest of business in this

case. The Chamber’s current membership exceeds 184,000,

including over 180,000 corporations, partnerships and

proprietorships, as well as several thousand trade asso-

ciations and state and local chambers. As one of its prin-

cipal functions, the Chamber regularly presents its views

before this Court, as well as the lower federal courts.’

The Chamber fears that the procedure approved in

this case will establish a troubling precedent and curtail

the use of informal administrative processes to resolve

allegations of class discrimination prior to litigation.

Congress did not intend for EEOC suits in intervention

to replace private class actions and direct agency suits

for class relief. Such a result would fill the courts with

unsubstantiated Title VII class suits and impose a severe

burden on employers, who must defend such actions. For

these reasons, the Chamber respectfully requests leave to

file the attached brief.

Respectfully submitted,

STEPHEN A. BOKAT

Counsel of Record

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

of the United States

3 See, e.g., TWA V. Thurston, 53 U.S.L.W. 4024 (U.S. January

8, 1985) (No. 83-997); Bowen v. U.S. Postal Service, 459 U.S. 212

(1983) ; First National Maintenance Corp. v. NLRB, 452 U.S. 666

(1981); Amoco Production Co. v. NLRB, 613 F.2d 107 (5th Cir.

1980).

TABLE OF CONTENTS

ey Wy tt sp Me |

DETR Oe cccscnierarscticttinnciepncctenisiqenaidaisiiiinnuniiciaaimianis ‘

I. THE PROCEDURE ALLOWED BY THE

LOWER COURT IN THIS CASE CONTRA-

VENES THE ENFORCEMENT SCHEME

MANDATED BY TITLE VII AND STRIPS

TITLE VII DEFENDANTS OF THEIR PRO-

OR, ae eee

A.

CONCLUSION

Congress Carefully Constructed an Enforce-

ment Scheme to Preclude Improper Class

Be ew abiaithcitelinchiec inant

. The Process Approved in this Case Permit-

ted a Hybrid Class Action to Proceed ............

Adherence to the Enforcement Scheme of

Title VII Will Not Hinder the EEOC in

Carrying Out its Statutory Objective ............

. Approval of the Procedure Used In This

Case Would Create a Severe Burden on Em-

ployers and other Titie VII Defendants

<< meeee

eee eee eee rere ee eee ee ee ee ee eee ee ee)

ii

TABLE OF AUTHORITIES

CASES: Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

CITING siiicicacvcisstiitiapiaianesiaillcccesitea leit ee ieee ee 3

Atchison, Topeka & Santa Fe Ry. Co. v. ICC, 607

p> Bt B.. 2s 5, Emenee Crome 6

Bell v. J. Ray McDermott & Co., Inc., 30 Empl.

Prac. Dec. (CCH) § 28,310 (E.D. La.(1982).... 4

Benson v. Little Rock Hilton Inn, 87 F.R.D. 447

$F BRR Ser 4

Board of Trade v. SEC, 677 F.2d 1137 (7th Cir.

1982), vacated as moot, 459 U.S. 1026 (1982)... 6

Campbell v. Galeno Chemical Co., 281 U.S. 599

CINTA - kccuadicoliesssnsscthiasninininadnaetainieieieee manera 6

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 104 8.Ct. 2778 (1984)........ 7

EEOC vy. Brookhaven Bank & Trust Co., 614 F.2d

SORE Cee Gis BID eieciesetearesnccotenssaeinde ee 5

EEOC v. Continental Oil Co., 548 F.2d 884 (10th

Ey Ne tittdithinesisstriteceiete 10

EEOC v. Great Atlantic & Pacific Tea Co., 735

F.2d 69 (3d Cir. 1984), cert. dismissed, 53

U.S.L.W. 3326 (U.S. Oct. 19, 1984) (No. 84-

OE. silecnmnnieisniaalinaniiemncuaa aaa adn ee daa 6

EEOC v. Hickey-Mitchell Co., 507 F.2d 944 (8th

SIGN PIED. sninesinnisstinitsteciesiectesnosotidesanmpniasaneaatananliadades 12

EEOC v. Shell Oil Co., 104 S.Ct. 1621 (1984)........ 3

EEOC v. Sherwood Medical Industries, Inc., 452

F. Supp. 678 (M.D. Fla. 1978) ............................. 11

Ernst & Ernst vy. Hochfelder, 425 U.S. 185

CRIT sini pendginiensibisie teats taealig a eae ere ae ec ts 6

FCC v. Midwest Video Corp., 440 U.S. 689

IE Sigielbkantice ee 7

Federal Maritime Commission v. Seatrain Lines,

TER Te ee CE i eta 6

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)... 3

General Telephone Co. of the Southwest v. Falcon,

gi SS 8): eres eee 8,9, 11

Herbst v. 1.T7.T. Corp., 495 F.2d 1308 (2d Cir.

BTU. ccinitsscsspbntiseblipsdien tanta taicica cht tear cetera eae a 11

iii

TABLE OF AUTHORITIES—Continued

Page

Johnson Vv. Nekoosa-Edwards Paper Co., 558 F.2d

841 (8th Cir. 1977), cert. denied sub nom.

Nekoosa Papers, Inc. v. EEOC, 434 U.S. 920

CITED accsnsteinenctlperesminsescbeiiatniegpidininiannmneeemhsians 5

Jones Vv. Holy Cross Hospital Silver Spring Inc.,

GE PED. COG CE. BRR. TREE) nnnnnencceenn ees... 4

Louisiana Chemical Association v. Bingham, 657

ip be gt 3 | Een oormen 6

N.O.W., Inc. v. Minnesota Mining and Manufac-

turing Co., 73 F.R.D. 467 (D. Minn. 1977)........ 4

Occidental Life Insurance Co. of California Vv.

BHOC, GBB UB. BES CISTI) -nnceeesencsrervscsnns asin cnes 3, 4, 12

Quarles v. St. Clair, 711 F.2d 691 (5th Cir.

BID acsccecatecintncsicinecisrrernsentiriniccinsvenieistinineseepniediaiamiesibimirtites 6

Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th

FE EIEN crs snsecusissiniacnisnetiniesttinin cuasianidnditieiaampanindiohiantes 11

Southern Motor Carriers Rate Conference V.

United States, 676 F.2d 1274 (11th Cir. 1982) .. 6

Sperry Rand v. Larson, 554 F.2d 868 (8th Cir.

SIE diininbchcieticcdhitceidecevecsiesinadieninnnbtiniadienantpittiaiins 11

Talley v. Mathews, 550 F.2d 911 (4th Cir. 1977).. 6

Truvillion Vv. King’s Daughters Hospital, 614 F.2d

I ee SI I stilt catecehcrmterenteierinstoneecionsonnece 11

Weeks v. Southern Bell Telephone & Telegraph

Co., 408 F.2d 228 (5th Cir. 1969) ........................ 5

Willis v. Allied Maintenance Corp., 75 F.R.D. 622

ie a: AEE peschniconaihdanilhidubirpennapricncniinemaicennnnsen 4

W.R. Grace & Co. Vv. Local Union 759, Interna-

tional Union of the United Rubber, Cork, Lino-

leum and Plastic Workers of America, 103 S.Ct.

STEER O ene nee eee meer 3,5

STATUTES:

Title VII of the Civil Rights Act of 1964, as

amended (42 U.S.C. § 2000e, et seq.) -................ passim

Section 705, 42 U.S.C. § 2000e-4 0... 2

Section 706, 42 U.S.C. § 2000e-5 oe. 2,4, 6,8

Section 707, 42 U.S.C. § 2000e-6 ...................---- 4

iv

TABLE OF AUTHORITIES—Continued

Page

FEDERAL RULES OF CIVIL PROCEDURE:

ESI ETS tice Ne AOD A ee: passim

LEGISLATIVE MATERIALS:

Sa ee ee, ee 5

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1984

No. 84-1002

UNITED TELECOMMUNICATIONS, INC., et al.,

. Petitioners,

DALE E. SAFFELS, United States District Judge

for the District of Kansas,

Respondent.

(Phyllis Wilson Hoffman and Equal Employment

Opportunity Commission, Real Parties in Interest.)

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

STATEMENT OF INTEREST

The Chamber of Commerce of the United States

(“Chamber”) respectfully refers this Court to its Mo-

tion for Leave to File Brief Amicus Curiae for a state-

ment of the Chamber’s interest in this proceeding.

2

ARGUMENT

This action came to the Tenth Circuit on the petition

of United Telecommunications, Inc. (“UTI”) for a writ

of mandamus.’ UTI asserted that the district court ex-

ceeded its jurisdiction in allowing the Equal Employ-

ment Opportunity Commission (“EEOC”) to indepen-

dently pursue class claims of discrimination after it en-

tered a private suit as an intervenor.* The Tenth Cir-

cuit dismissed the petition, holding that the EEOC was

neither required to comply with the class action require-

ments of Fed. R. Civ. P. 23 nor with administrative

prerequisites before int. vening and independently seek-

ing class-wide relief. ‘The Tenth Circuit focused on the

straw man of whether the EEOC must complete admin-

istrative processes or comply with Rule 23 before inter-

vening in a private action.’ Petitioner does not challenge

the EEOC’s intervention in this action,‘ but rather its

subsequent attempt to independently litigate uncertified,

unprocessed class claims it could not otherwise bring to

court.

1The Chamber respectfully refers the Court to Petitioner's

Statement of the Case, where the relevant facts and proceedings

below are set forth, and incorporates the same herein by reference.

2 EEOC intervention in a suit brought by an aggrieved individual

is authorized by §§ 705(g) (6) and 706(f)(1) of the Civil Rights

Act of 1964 as amended, Title VII, 42 U.S.C. §§ 2000e-4(g) (6),

2000e-5 (f) (1).

* See Order and Opinion of the Tenth Circuit dated August 15,

1984, Pet. App. 4a (“That Congress required the Commission to

satisfy certain administrative procedures before initiating a law

suit on its own does not require us to find an ambiguity ih the

plain language of Section 706(f)(1), which permits intervention

without requiring the satisfaction of those administrative pro-

cedures. It would be a tortured construction to conclude that

when intervening, the Commission somehow becomes subject to

Rule 23 when in fact the Supreme Court has made clear that the

Commission is not subject to Rule 23 when bringing a direct action

in the first instance.”). (“Pet. App.” refers to the appendix filed

with this Court by the petitioner UTI.)

+ $ce Petition for Certiorari (hereafter “Pet.”) at p. 11 n.3.

By its decision in this case, the Tenth Circuit has ap-

proved a process whereby the EEOC can act upon an in-

dividual plaintiff's untested allegations of class harm,

intervene and independently litigate a class action in-

volving a company’s entire personnel system. Because

this contradicts the enforcement scheme of Title VII and

potentially subjects businesses to frivolous and premature

employment practice class suits, the Chamber supports

the certiorari petition and urges this Court to grant

review.

I. THE PROCEDURE ALLOWED BY THE LOWER

COURT IN THIS CASE CONTRAVENES THE EN-

FORCEMENT SCHEME MANDATED BY TITLE

VII AND STRIPS TITLE VII DEFENDANTS OF

THEIR PROCEDURAL RIGHTS.

A. Congress Carefully Constructed An Enforcement

Scheme to Preclude Improper Class Action Suits.

As enacted in 1964, Title VII did not empower the

EEOC to sue employers to enforce the Act.’ Rather,

“(elooperation and voluntary compliance were selected

as the preferred means” for achieving equality of em-

ployment opportunities.*

The 1972 amendments to Title VII" provided the

EEOC with enforcement authority. Under these amend-

ments, the Commission is empowered to initiate litiga-

6 Civil Rights Act of 1964, Pub. L. 88-852, Title VII, 78 Stat. 253

(codified at 42 U.S.C. § 2000e).

¢ Alezander vy. Gardner-Denver Co., 415 U.S. 36, 44 (1974).

These means are still preferred. See, EEOC v. Shell Oil Co., 104

S.Ct. 1621, 1635 (1984); W.R. Grace & Co. v. Local Union 759,

International Union of the United Rubber, Cork, Linoleum and

Plastic Workers of America, 103 S.Ct. 2177, 2186 (1983); Ford

Motor Co. v. EEOC, 458 U.S. 219, 228 (1982); Occidental Life

Insurance Co. of California v. EEOC, 482 U.S. 355, 368 (1977).

7 Equal Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103

(codified as amended at 42 U.S.C. § 2000e).

4

tion to vindicate individual instances of employment

discrimination, and to investigate and act on a charge of

a pattern or practice of discrimination. The prerequi-

sites to EEOC litigation under either of these sections

are investigation, determination of reasonable cause, and

attempted conciliation. The EEOC is also authorized to

intervene in actions brought by individuals under § 706.”

But the scope of the Commission’s intervention is limited

to those claims which the private plaintiff properly brings

before the court or the EEOC uncovers in the course of

investigation. Bell v. J. Ray McDermott & Co., Inc.,

30 Empl. Prac. Dec. (CCH) { 33,310 (E.D. La. 1982) ;

Benson v. Little Rock Hilton Inn, 87 F.R.D. 447, 449

(E.D. Ark. 1980) ; N.O.W., Inc. v. Minnesota Mining and

Manufacturing Co., 73 F.R.D. 467, 471 (D. Minn. 1977) ;

Willis v. Allied Maintenance Corp., 75 F.R.D. 622

(S.D.N.Y. 1976); Jones v. Holy Cross Hospital Silver

Spring Inc., 64 F.R.D. 586, 591 (D. Md. 1974).

As this Court stated in Occidental Life Insurance Co.

of California v. EEOC, supra, 432 US. at 368:

[U]nder the procedural structure created by the

1972 amendments, the EEOC does not function sim-

ply as a vehicle for conducting litigation on behalf

of private parties; it is a federal administrative

agency charged with the responsibility of investigat-

ing claims of employment discrimination and settling

disputes, if possible, in an informal, noncoercive

fashion.

By contrast, in this action, the EEOC was allcwed to

proceed as class representative and the named plaintiff

was precluded from proceeding in that capacity."

* Title VII, §§ 706, 707, 42 U.S.C. §§ 2000e-5, 2000e-6(«).

° requirements are contained in sections 706(b), 706(f) (1),

and 707(e), 42 U.S.C. §§ 2000e-5(b), 2000e-5(f) (1), 2000e-6(e).

” See n.2, supra.

11 See Memorandum and Order of District Court dated October

8, 1984, Pet. App. 16a (“(t)he purposes of the court’s ruling

5

It was Congress’ intent that the EEOC would not liti-

gate claims unless conciliation was attempted and the

efforts failed. As stated by Congressman Perkins, the

House sponsor of the 1972 amendments to Title VII:

The conferees contemplate that the Commission will

continue to make every effort to conciliate as is re-

quired by existing law. Only if conciliation proves

to be impossible do we expect the Commission to

bring action in Federal district court to seek en-

forcement.

118 Cong. Rec. 7563 (1972). And as this Court stated

in W.R. Grace, supra, 103 S.Ct. at 2186, “[c]ritical to

the compliance scheme is the Commission’s role in set-

tling Title VII disputes through conference, conciliation,

and persuasion before a Title VII plaintiff or the Com-

mission may bring suit.” The EEOC should not be al-

lowed to circumvent the Congressional scheme by inter-

vening and independently litigating a class action with-

out investigating or attempting to conciliate the matter.”

allowing the EEOC to proceed as class representative would not

be advanced by allowing plaintiff to retain the option to proceed

as class representative”).

12 See EEOC v. Brookhaven Bank & Trust Co., 614 F.2d 1022,

1026 (5th Cir. 1980) (Reavley, J., dissenting) (“Conscientious

adherence to the statutory prerequisites is more than an exalta-

tion of form over substance. The language of the statute insures

that trifies do not become subjects of EEOC suits and that em-

ployers are not harassed by an overzealous EEOC staff.”); John-

son ¥. Nekoosa-Edwards Paper Co., 558 F.2d 841, 847-48 (8th Cir.

1977), cert. denied sub nom. Nekoosa Papers, Inc. vy. EEOC, 434

U.S. 920 (1977) (“[clonciliation is ...an integral part of Title

VII, .. . and is desirable for a variety of policy reasons including

giving the defendant notice and an opportunity to respond to any

additional claims revealed by the EEOC investigation and in order

to avoid expensive and time-consuming court actions”); Weeks v.

Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 231 (5th

Cir. 1969) (“we think it is clear that the purpose of certain of the

procedural requirements of Section 2000e + is to protect employers

from unfounded charges and harassment”).

6

In the instant action, the EEOC seeks to litigate the

claims of as many as 40,000 individuals in as many as

35 states and 100 separate facilities (Pet. at pp. 3-4).

The congressional objective of achieving voluntary com-

pliance with EEO laws and affording employers an op-

portunity to conciliate before litigating plainly survives

with respect to class claims even after a plaintiff has

brought suit on her own behalf. Indeed, the statute pro-

vides that the court may stay further proceedings for

60 days pending “further efforts of the Commission to

obtain voluntary compliance.” 42 U.S.C. § 2000e-5(f) (1).

{t is well recognized that an administrative agency

cannot exceed the specific statutory authority granted it

by Congress.* The role of agencies remains basically to

execute legislative policy; they are no more authorized

than are the courts to rewrite acts of Congress.“ They

may not bootstrap themselves into areas in which they

have no jurisdiction by violating their statutory man-

dates. Federal Maritime Commission v. Seatrain Lines,

411 U.S. 726, 745 (1973). The EEOC must conduct its

enforcement activities within the enforcement scheme

constructed by Congress.

13 See also, EEOC v. Great Atlantic & Pacific Tea Co., 735 F.2d

69, 84 (3d Cir. 1984), cert. dismissed, 58 U.S.L.W. 3326 (U.S. Oct.

19, 1984) (No. 84-275) (“[t)he express policy of Title VII favors

voluntary compliance not only before, but even after an EEOC suit

is filed’”’).

144 Ernst & Ernst vy. Hochfelder, 425 U.S. 185, 213-14 (1976);

Campbell vy. Galeno Chemical Co., 281 U.S. 599, 610 (1930).

Accord, Atchison, Topeka & Santa Fe Ry. Co. v. ICC, 607 F.2d 1199,

1203 (7th Cir. 1979).

5 Talley V. Mathews, 550 F.2d 911, 919 (4th Cir. 1977). Accord,

Quarles vy. St. Clair, 711 F.2d 691, 708 n.60 (5th Cir. 1983); Board

of Trade vy. SEC, 677 F.2d 1187, 1142 n.8 (7th Cir. 1982), vacated

as moot, 459 U.S. 1026 (1982) ; Southern Motor Carriers Rate Con-

ference, Inc. ¥. United States, 676 F.2d 1374, 1380 (11th Cir.

1982) ; Louisiana Chemical Association v. Bingham, 657 F.2d 777,

779 (5th Cir. 1981).

7

* The EEOC procedures of investigation and determina-

tion of whether there is reasonable cause to believe that

class allegations are true provide employers with the

same kinds of protections against improper class actions

as those of Rule 23..° The EEOC’s investigation and

determination reveal whether the elements of a bona fide

class action exist. Moreover, the conciliation requirement

provides the employer with an opportunity to resolve the

dispute without litigation. Compliance with the pre-

requisites of Title VII and Rule 23 will preclude unnec-

essary expenditures to defend lawsuits that Congress

never intended be brought as class actions.

When there is a lack of Congressional guidance, this

Court may defer to an agency’s judgment regarding the

scope of its authority. However, where there are “strong

indications that agency flexibility [is] to be sharply

delimited,” the Court has declined to do so. FCC v. Mid-

west Video Corp., 440 U.S. 689, 708 (1979).’” This is

just such a case. Congress has carefully restricted the

EEOC’s powers of suit to require that it first attempt

informal methods of conciliation and persuasion. Ac-

cordingly, the Commission should not be allowed to

exceed its delegated powers and circumvent the statutory

scheme in this manner.

16 Rule 23 requires that the named plaintiff demonstrate, inter

alia, numerosity, common questions of law or fact, typicality of the

claims or defenses of the representative, and adequacy of the rep-

resentative to protect the interests of the class. (The relevant

provisions of Rule 23 are set forth at Pet. App. 23a-24a.) The

defendant has the opportunity to challenge the existence of each

of these factors.

17 See also, Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 104 S.Ct. 2778, 2781-82 (1984) (“[i]f the intent of

Congress is clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the unambiguously expressed

intent of Congress’).

8

B. The Process Approved in This Case Permitted A

Hybrid Class Action Suit to Proceed.

The EEOC moved to intervene permissively in this

case more than two years after Ms. Hoffman filed an

EEOC charge and 10% months after the EEOC issued

a notice of right to sue.” The district court allowed the

EEOC to proceed as the class representative, even though

the asserted purpose of this exercise was to “avoid[]

the discovery and hearings necessary to obtain a deter-

mination pursuant to Rule 23 of the Federal Rules of

Civil Procedure in regard to certification of [Hoffman]

as a class representative and certification of this action

as a class action.” Memorandum in Support of Plaintiff

and Plaintiff-Intervenor’s Motion to deem EEOC as Rep-

resentative of the Class at pp. 4-5. These are precisely

the procedures that prevent improper class suits.

Had the EEOC sought to bring direct suit on the class

claims, the action would have been dismissed due to the

EEOC’s failure to process the claims it sought to litigate.

Had the named plaintiff sought to bring a class action,

her allegations would have been held up to the standards

of Rule 23. But the result of the lower court’s decision

was to allow the EEOC to accomplish by intervention

what could not have been achieved otherwise; a class

action suit based on bare, untested allegations of class

harm. As this Court noted in General Telephone Co. of

the Southwest v. Falcon, 457 U.S. 147, 159 (1982), “[i]f

one allegation of specific discriminatory treatment were

sufficient to support an across-the-board attack, every

Title VII case would be a potential companywide class

action.” Such contradiction of the carefully constructed

statutory enforcement scheme of Title VII must not be

permitted.

1%%A right to sue letter is issued by the EEOC following the

completion of its administrative processes, or upon request of the

complainant after the EEOC has had jurisdiction for 180 days.

42 U.S.C. § 2000e-5(f) (1). Plaintiff in this case requested a right

to sue letter after 180 days.

9

Moreover, such a procedure would allow and even

encourage named plaintiffs seeking to represent a class

to avoid the strict prerequisites of Rule 23 by the simple

device of seeking intervention by the EEOC. In this

way, what is really a private action brought by a single

plaintiff is converted into a far-reaching class action,

without any showing by the named plaintiff that his

claim is typical, or common, or that he shares any com-

munity of interest with other class members. This is

exactly the type of “wholesale expansion” of class actions

the Court in General Telephone Co. of the Southwest v.

Falcon sought to prevent. 457 U.S. at 159.

C. Adherence to the Enforcement Scheme of Title VII

Will Not Hinder the EEOC in Carrying Out Its

Statutory Objective.

The EEOC has many opportunities under Title VII to

ensure that a case is litigated as broadly or narrowly

as it desires. In addition to its exclusive authority to

bring suit for the first 180 days after a charge is filed

(unless it dismisses the charge), and its authority to

intervene and litigate any claims a private litigant prop-

erly places before the court, the Commission can also

expand a private suit to include any claim it uncovers

in the course of its investigation, so long as a reasonable

cause finding is entered and conciliation is attempted.

In sum, it is not the case that the Commission will be

unable to vindicate the public interest in nondiscrimina-

tory employment policies unless it is allowed to pursue,

as an intervenor, class claims that it has not admin-

istratively processed. It need only await the outcome

of the Rule 23 certification process initiated by a private

plaintiff and participate as an intervenor, or comply with

administrative prerequisites before bringing suit in its

own name.

The district court below attached great importance to

the fact that in the Tenth Circuit, the filing of a private

Title VII action cuts off the EEOC’s ability to bring a

10

direct suit based on the private plaintiffs charge, and

relegates the Commission to intervention in the private

suit.” This argument misses the mark. The EEOC’s

ability to enforce the statute is not subject to the actions

of charging parties. As clarified by the Tenth Circuit in

EEOC v. Continenial Oil Co., 548 F.2d 884 (10th Cir.

1977), when an individual brings suit on a charge of

discrimination, the EEOC is thereafter precluded by

Tenth Circuit law only from bringing a separate suit

on that charge. As the Continental Oil court noted:

If there are additional incidents of discrimination

and the EEOC has foregone its opportunities to ad-

dress them in a suit filed on a particular charge, ad-

ditional charges may be obtained upon which to pro-

ceed. Further, if the additional incidents sought to

be addressed are pervasive, the matter could be certi-

fied for § 707 processing, which section affords a

broad based remedy without regard to individual

charges or complaints.

Id., 548 F.2d at 890.

In the instant case, Ms. Hoffman’s suit was never cer-

tified as a class action. Had it proceeded as an individ-

ual action, the EEOC would have been precluded only

from filing a separate suit on Ms. Hoffman’s charge.

Had the action been certified as a class action, the

EEOC’s attempt to gain class-wide relief after interven-

ing would have been appropriate. Thus, the Commission

is not hindered by the actions of charging parties, but

rather is subject only to the requirements of the statute.

D. Approval of the Procedure Used in This Case Would

Create a Severe Burden on Employers and Other

Title VII Defendants.

Defending class actions can place an extreme burden

on employers and other Title VII defendants. The cost of

19 Memorandum and Order of District Court dated April 11, 1984,

Pet. App. 10a.

11

defending a large class action discrimination suit can be

devastating to a business, both in terms of lost working

hours and counsel fees.” The requirements of Title VII

that the EEOC investigate and attempt to conciliate any

claim before litigating as well as the class action prereq-

uisites of Fed. R. Civ. P. 23 provide protections against

improper class action suits. See generally, General Tele-

phone Co. of the Southwest v. Falcon, supra, 457 U.S. at

160-61.

One of the purposes of the requirement of administra-

tive processing of claims by the EEOC before litigation

is to allow input by the employer before suit is insti-

tuted. Under the procedure used in this case, every

business would be fair game for EEOC class suit, with-

out opportunity to question, challenge or conciliate. This

is not what Congress intended in enacting Title VII’s “in-

tegrated multistep enforcement procedure culminating in

the EEOC’s authority to bring a civil action in federal

20 See Sperry Rand vy. Larson, 554 F.2d 868, 871 n.3 (8th Cir.

1977) ; Schmidt v. Fuller Brush Co., 527 F.2d 532, 535 (8th Cir.

1975) ; Herbst v. I.7.T. Corp., 495 F.2d 1308, 1312 (2d Cir. 1974).

21 See EEOC v. Sherwood Medical Industries, Inc., 452 F. Supp.

678, 683-84 (M.D. Fla. 1978) (“Once having determined that a

respondent has violated Title VII, the Commission must make a

genuine effort to conciliate with respect to each and every employ-

ment practice complained of. In this way, the respondent is

afforded a fair opportunity to weigh all the factors which must be

taken into account in deciding whether to settle a dispute out of

court, even if the charge of discrimination in dispute arose from

the Commission’s own investigation rather than the charging

party’s charge. And if litigation then results, all parties are

assured that they have had a fair opportunity to settle every mat-

ter in dispute. The Congressional mandate that litigation be a

matter of last resort will have been observed.”). See also, Truvillion

v. King’s Daughters Hospital, 614 F.2d 520, 524 (5th Cir. 1980)

(the,.required EEOC notice of failure of conciliation protects the

employer by warning him of his last chance to obtain an amicable

resolution of the EEOC’s compiaint).

12

court.” Occidental Life Insurance Co. of California Vv.

EEOC, supra, 432 U.S. at 359.”

CONCLUSION

‘The Chamber believes that the holding of the Tenth

Circuit could have wide-ranying ramifications in the

* business community, eroding the protections against im-

proper class action suits contained in Title VII and Rule

23. Accordingly, the Chamber respectfully urges this

Court to grant the petition for certiorari filed by UTI.

Respectfully submitted,

STEPHEN A. BOKAT

Counsel of Record

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

of the United States

February 14, 1985

22 See also, EEOC v. Hickey-Mitchell Co., 507 F.2d 944, 948 (8th

Cir. 1974) (“[t]he Commission’s power of suit and administrative

process [are not] unrelated activities, [but] sequential steps in a

unified scheme for securing compliance with Title VII’’) (citation

omitted).

De