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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1060

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1891%3A4. Public record. Not legal advice.