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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0684%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 811

## Text

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).

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(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.

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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.

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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

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