Opposition Brief — Pemco Aeroplex, Inc. v. Equal Employment Opportunity Commission

re)

set a “grossly inequitable precedent: it would open the

door for defendants to seek to keep the EEOC out of

private litigation, and then try to preclude the EEOC—

which may have more resources and effective legal rep-

resentation, and therefore a better chance of winning at

trial, than private plaintiffs do—froem suing on its own.”

Ibid. Permitting such tactics would “severely curtail the

enforcement powers of the EEOC and other governmen-

tal agencies by allowing the dismissal of their cases due

to the result of litigation over which they have no con-

trol.” Jd. at 25-26.

ARGUMENT

The court of appeals held that the EEOC may “pro-

ceed with a Title VII enforcement action charging the

defendant * * * with company-wide racial harassment,

notwithstanding an adverse judgment rendered in a sep-

arate action brought by a number of individual plaintiffs

who alleged vacial harassment by the same defendant.”

Pet. App. 1. That holding is correct and does not con-

flict with any decision of this Court or any other court of

appeals. Further review is not warranted.

1. In EEOC v. Waffle House, Ine. 534 U.S. 279

(2002), this Court held that the EEOC may litigate a

claim of disability discrimination and seek victim-spe-

cific relief for an alleged victim of that discrimination

even if the individual, having agreed to arbitrate his pri-

vate claim against his employer, could not seek such

relief in court himself. The Court reasoned that the

EEOC’s claim is not “merely derivative” of claims

brought by private plaintiffs, nor is the EEOC “merely

a proxy for the victims of discrimination.” /d. at 297 (cit-

ing General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980)).

Rather, Title VII authorizes the EEOC to bring its own

9

suit and to allege its own claim, which is separate from

and independent of private claims challenging similar

conduct by an employer; the statute “clearly makes the

EEOC the master of its own case.” See id. at 291. The

Court recognized that, even when it sues seeking victim-

specific relief, “it is the public agency’s province * * *

to determine whether public resources should be com-

mitted to the recovery of victim-specific relief.” Jd. at

291-292. “[I]f the agency makes that determination, the

statutory text unambiguously authorizes it to proceed in

a judicial forum.” /d. at 292.'

Petitioner argues (Pet. 4) that the Eleventh Circuit’s

decision “conflicts” with this Court’s decision in Waffle

House. The Court in Waffle House stated that a plain-

tiff’s conduct “may have the effect of limiting the relief

that the EEOC may obtain in court” and the court di-

rected federal courts to preclude “double recovery by an

individual.” 534 U.S. at 296, 297 (quoting General Tel.

' This Court and others have held in a variety of other contexts that

private suits do not preclude federal agencies with enforcement powers

from bringing factually related claims. See, e.g., City of Richmond v.

United States, 422 U.S. 358, 373 n.6 (1982) (prior appellate judgment in

Voting Rights Act case is not given estoppel effect in later suit by

United States); Herman v. South Carolina Nat'l Bank, 140 F.3d 1413,

1424-1425 (11th Cir. 1998) (Department of Labor not precluded from

pursuing an ERISA claim despite a prior private suit), cert. denied, 525

U.S. 1140 (1999); Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692

(7th Cir. 1986) (same; holding that “Government is not barred by the

doctrine of res judicata from maintaining independent actions to

enforce federal statutes implicating both public and private interests

merely because independent private litigation has also been commenced

or concluded”); Donovan vy. Cunningham, 716 F.2d 1455, 1462-1463 (Sth

Cir. 1983) (same), cert. denied, 467 U.S, 1251 (1984); United States v.

East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 (Sth Cir. 1979)

(Department of Justice not precluded from pursuing Voting Rights Act

violation by prior resolution of a private claim).

10

(o., 446 U.S. at 333). Petitioner asserts (Pet. 5) that the

decision in this case “allows the EEOC to obtain relief

furthe * * * Thomas plaintiffs,” and that permitting

such relief is inconsistent with Waffle House.

Nothing in the Eleventh Circuit’s decision suggests

any conflict with Waffle House. The Court in Waffle

House did note that a charging party’s “conduct may

have the effect of limiting the relief that the EEOC may

obtain in court.” 534 U.S. at 296. But the Court also

noted that “no question concerning the validity of [the

charging party’s| claim or the character of the relief that

could be appropriately awarded in * * * a judicial

* * * forum is presented by thle] record” in Waffle

House. Id. at 297. As the Court stated, “i]t is an open

question whether a settlement or arbitration judgment

would affect the validity of the EEOC’s claim or the

character of relief the EEOC may seek.” /bid. Simi-

larly here, the court of appeals held that EEOC’s en-

forcement action was not barred by the judgments in

Thomas. As in Waffle House, questions of relief were

neither presented to nor resolved by the court of ap-

peals. See note 2, infra. This case accordingly presents

no conflict with Waffle House on questions of relief.

2. Petitioner contends (Pet. 5) that further review is

warranted to address what it contends is a conflict in the

circuits on the question of “whether the EEOC is bound

by a plaintiff's prior settlement and/or verdict when

seeking the same relief on behalf of that individual.”

a. This case does not present the question of

whether the EEOC is precluded from bringing a Title

VII enforcement action where the agency is seeking “the

same relief” (Pet. 5) as was sought in a private suit. The

EEOC in this case alleged company-wide racial harass-

ment potentially affecting all of petitioner's 200 or more

11

African-American employees; the vast majority of those

employees did not participate in Thomas. Although the

Thomas suit was initially brought as a class action,

plaintiffs withdrew their class claim afte~ »etitioner op-

posed class certification and proceeded “individual

plaintiffs consolidated in one action,” each focused on

relief for that particular plaintiff. Pet. App. 2. Thus, in

addition to injunctive relief, the EEOC’s suit seeks

victim-specific relief for approximately 165 African-

American employees who were not included in the

Thomas suit and could not have obtained any relief from

that suit no matter what the jury there had found.

There is no theory under which the Thomas litigation

would preclude litigation by those 165 individuals and no

sound reason why the EEOC cannot litigate to vindicate

the rights of those individuals.”

The courts of appeals are not divided on the question

presented in this case. In the context of EEOC suits to

enforce Title VII, the courts of appeals even before Waf-

fle House had uniformly held that, at least where, as

here, the allegations in an EEOC enforcement action are

broader than those in a private suit based on the same

charge, the EEOC is not bound by the resolution of the

* In light of the procedural posture of this case, the Eleventh Circuit

did not address the question whether and under what cireumstances

any of the Thomas plaintiffs could benefit from EEOC's enforcement

action if and when liability is established. EEOC’s action was dismissed

even before discovery was complete. Compare Docket entry No. 52

(9/10/02 order extending discovery in EEOC’s suit until 12/31/02), with

Pet. App. 27 (granting summary judgment on 12/13/02). Assuming the

trial is bifurcated, matters relating to relief may be deferred until after

the trial on liability. At that time, should the EEOC prevail on the

merits and decide to seek victim-specific relief for any Thomas plaintiff

in addition to other injured African-American employees, petitioner will

have ample opportunity to litigate that issue.

12

private suit such that its enforcement action may not

proceed. See, ¢.g., Ameritech Benefit Plan Comm. v.

Communication Workers of Am., 220 F.3d 814, 820 (7th

Cir. 2000) (decision in private suit to which EEOC is not

a party “will not formally preclude the EEOC” in its

parallel action), cert. denied, 531 U.S. 1127 (2001);

EEOC v. Goodyear Aerospace Corp., 815 F.2d 1539, 1548

(9th Cir. 1987) (EEOC may proceed in suit under Title

VII and obtain injunctive relief even though charging

party's claim for victim-specific relief was moot); KEOC

v. Huttig Sash & Door Co., 511 F.2d 453 (Sth Cir. 1975)

(after termination of charging party's private suit,

EEOC may bring its own suit predicated on, but not

limited to, the same charge); FL OC v. Kimberly-Clark

Corp., 511 F.2d 1352, 1361-1362 (6th Cir.) (same, adding

that EEOC is not “privy” to private settlement to which

it did not agree), cert. denied, 423 U.S. 994 (1975); ef.

EEOC v. Harris Chernin, Inc., 10 F.5d 1286, 1291 (7th

Cir. 1993) (ADEA case; EEOC may proceed with its suit

on behalf of single individual and obtain injunctive relief

even though individual was barred by prior suit from

seeking victim-specific relief). Like the decision in this

case, those cases recognize that precluding an EEOC

enforcement action under such circumstances would be

contrary to the key role Congress envisioned that the

EEOC would play in enforcing federal discrimination

law. See, ¢.g., Goodyear Aerospace, 813 F.2d at 1542-

1543; Kimberly-Clark, 511 F.2d at 1361 & n.12.

b. Petitioner errs in contending (Pet. 8) that New

Orleans Steamship Ass'n v. EEOC, 680 F.2d 23 (5th Cir.

1982), suggests to the contrary. In that case, the Fifth

Circuit held that “the EEOC may challenge a transac-

tion which was the subject of prior judicial scrutiny in a

private |Title VII] suit, ifthe subsequent challenge seeks

13

different relief.” Id. at 25 (emphasis added). In this

case, the EEOC indeed seeks broader (and therefore

different) relief from that sought in the earlier private

action. Accordingly, the Eleventh Circuit’s holding in

this case that EEOC may seek such relief is consistent

with the decision in New Orleans Steamship Ass’n .’

The other cases cited by petitioner in support of its

claim of conflict did not arise under Title VII, but in-

stead arose under the Age Discrimination in Employ-

ment Act (ADEA), 29 U.S.C. 621 et seg. See Pet. 6-7

(citing EEOC v. United States Steel Corp., 921 F.2d 489

(3d Cir. 1990); EEOC v. North Gibson Sch. Corp., 266

F.3d 607 (7th Cir. 2001)). In holding that the EEOC

may not seek monetary relief that would be unavailable

to specific victims, the courts in those cases relied on

“the ADEA’s distinctive scheme,” which, according to

those courts, makes the EEOC the “representative” of

individual victims. North Gibson Sch. Corp., 266 F.3d at

615 (stating that “the drafters of the ADEA consciously

departed from the enforcement scheme of Title VII");

United States Steel Corp., 921 F.2d at 494; see id. at 494

n.4 (stating that “the framers of the ADEA consciously

departed” from “the enforcement scheme of Title VII”).

The EEOC disagrees with that reasoning. But in any

event, it does not extend to Title VII. As this Court held

* Inaddition, Neve Orleans Steamship Ass'n was premised in part on

the need to avoid duplicative litigation. See Baker (Truvillion) v.

King’s Daughters Hosp., 614 F.2d 520, 524 (Sth Cir. 1980),cited in New

Orleans Steamship Ass'n, 680 F.2d at 25-26 & n.s. In light of the

EEOC’s repeated unsuccessful attempts to consolidate this case with

Thomas, that rationale would not apply here. Indeed, it was peti-

tioner's strenuous opposition to consolidation that essentially ensured

that a separate trial would be required for EEOC'’s more compre-

hensive action.

14

in General Tel. Co. v. EEOC, 446 U.S. at 326, “(t]he

EEOC is not merely a proxy for the victims of discrimi-

nation” under Title VII. Even “|w|hen the EEOC acts,

albeit at the behest of and for the benefit of specific indi-

viduals, it acts also to vindicate the public interest in

preventing employment discrimination.” /bid. The Sev-

enth Circuit implicitly recognized that distinction in

Ameritech, 220 F.3d at 821, where it held that the

EEOC would not be bound by a judgment in a private

Title VII case to which it was not a party. Accord J» re

Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002) (EEOC does

not sue as representative of discrimination victims; “pri-

mary role is that of a law enforcement agency ’).

In any event, all of the cases relied on by petitioner

predate this Court's decision in Waffle House. Since

Waffle House, both the Fifth and Seventh Circuits have

issued decisions indicating that, because of its interest

in law enforcement, a federal agency such as the EEOC

may obtain relief for a victim of discrimination even if

that individual could not obtain the same relief himself.

See United States y. Mississippi Dep't of Pub. Safety,

321 F.3d 495 (5th Cir. 2003) (government is authorized

to bring suit under Americans with Disabilities Act even

though private suit would be barred by Eleventh

Amendment, noting that government may determine

whether public resources should be committed to recov-

ery of victim-specific relief); FEOC v. Board of Regenis,

288 F.3d 296, 299-300 (7th Cir. 2002) (same, under

ADEA). Those rulings indicate that, contrary to peti-

tioner’s suggestion, those circuits would not disagree

with the Eleventh Circuit’s holding in this case.

3. Finally, petitioner argues (Pet. 11-12) that fur-

ther review should be granted on what petitioner de-

scribes as an “issue of first impression” to ensure that

15

the EEOC is denied “a second chance to try a class-wide

hostile environment claim based on the same evidence

(the Thomas plaintiffs] unsuccessfully presented in an

effort to prove the same work environment was hostile.”

The fact that, in petitioner’s terms (Pet. 11), this case

“will decide the preclusive nature of fwventy-two jury

verdicts” does not make it of sufficient general impor-

tance to warrant further review by this Court.

Even if it were less fact-bound, petitioner’s claim

that the Thomas litigation should have precluded this

action would not warrant further review, because the

court of appeals correctly held that, under any recog-

nized theory, the EEOC was not in privity with the

Thomas plaintiffs. See generally Pet. App. 5-25. Peti-

tioner bases its privity arguments on the theories that

the Thomas plaintiffs were the “virtual representative”

of the EEOC and that the EEOC “assist|ed] in the pros-

e-ution or defense of [the Thomas] action.” Pet. 13-14.

This Court, however, flatly rejected similar attenuated

notions of privity in Richards v. Jefferson County, 517

U.S. 793, 801-803 (1996), and South Cent. Bell Tel. Co. v.

Alabama, 526 U.S. 160, 167-168 (1999).

Although petitioner purports to rely (Pet. 13-14) on

this Court’s decision in Montana v. United States, 440

U.S. 147, 153-154 (1979), that case is inapposite. Mon-

tana does not speak of “virtual representation” at all;

given a federal agency’s law enforcement interests, the

theory is ill-suited to enforcement actions such as this

one by the EEOC. See Pet. App. 17-25 (discussing case

law). Nor was the EEOC’s role in Thomas remotely

comparable to the level of control or “assistance” exer-

cised by the United States in Montana, where the Gov-

ernment required the original lawsuit to be filed in state

court, reviewed and approved the complaint, paid the

16

attorney's fees and costs, directed the appeal to the

Montana Supreme Court, appeared and submitted an

amicus brief in the Montana Supreme Court, directed

the filing of a notice of appeal to this Court, and effectu-

ated the plaintiff's abandonment of that appeal when the

Government filed its own suit in district court. See Pet.

App. 16 (citing 440 U.S. at 155); compare Pet. App. 17

(EEOC did not sit at counsel table during trial in this

case, examine witnesses, proffer evidence, or exert any

control over decisions including what claims to assert

and whether to appeal).

Moreover, as the court of appeals recognized, “the

equities of this case * * * weigh strongly against a

finding of privity.” Pet. App. 25. In successfully oppos-

ing consolidation of this action with Thomas, petitioner

argued that EEOC’s action, claim and evidence were

“substantially different” from those in Thomas. District

docket No. 6 (Defendant’s Response to EEOC’s Ist Con-

solidation Motion 1-5). Further, petitioner informed the

district court:

The | Thomas] case consists of |a number of] individ-

ual cases filed together. Each of |these| Plaintiff's

cases * * * must stand on its own merits. The

EEOC’s case is obviously much broader in that it

does not allege that any particular employee has

been subjected to a hostile environment. Instead, it

alleges class-wide discrimination and opens the door

to evidence that would be potentially wholly inadmis-

sible in | Thomas|.

District docket No. 30 (Defendant's Response to

EEOC’s 2d Consolidation Motion 3). In light of those

arguments, petitioner should not now be heard to argue

that the suits are so similar that this Court should inter-

17

cede to ensure that the EEOC may not try its action

separately.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ERIC S. DREIBAND

General Connsel

VINCENT J. BLACKWOOD

Acting Associate General

Connsel

BARBARA L. SLOAN

Attorney

Equal Employment

Opportunity Commission

JUNE 2005