Table of Contents

Table of Authorities................................................................................ ii

Introduction............................................................................................. 1

Background............................................................................................. 3

Argument................................................................................................ 6

I. Whether the Commission may rely on the Teamsters proof

framework when it brings suit under §706 is not a question

that meets the §1292(b) requirements...................................... 6

II. Whether the Commission must investigate on an individualized

basis before it brings suit under §706 is not a question that

meets the §1292(b) requirements........................................... 16

Conclusion............................................................................................ 20

Certificate of Service

Table of Authorities

Cases Page(s)

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974)...................................................................... 17

Allison v. Citgo Petroleum Corp.,

151 F.3d 402 (5th Cir. 1998)...................................................... 15

Castano v. Am. Tobacco Co.,

84 F.3d 734 (5th Cir. 1996)........................................................ 13

Celestine v. Petroleos de Venezuella SA,

266 F.3d 343 (5th Cir. 2001)........................................................ 8

Clark-Dietz & Assocs.-Eng’rs, Inc. v. Basic Constr. Co.,

702 F.2d 67 (5th Cir. 1983).......................................................... 2

EEOC v. Agro Distrib., LLC,

555 F.3d 462 (5th Cir. 2009)...................................................... 16

EEOC v. Am. Nat’l Bank,

652 F.2d 1176 (4th Cir. 1981)...................................................... 7

EEOC v. Bruno’s Rest.,

13 F.3d 285 (9th Cir. 1993)........................................................ 20

EEOC v. Caterpillar, Inc.,

409 F.3d 831 (7th Cir. 2005) ..................................................... 17

EEOC v. Cont’l Oil Co.,

548 F.2d 884 (10th Cir. 1977).................................................... 10

EEOC v. CRST Van Expedited, Inc.,

679 F.3d 657 (8th Cir. 2012)...................................................... 20

EEOC v. Dinuba Med. Clinic,

222 F.3d 580 (9th Cir. 2000)........................................................ 9

EEOC v. Gen. Tel. Co. of the Nw.,

599 F.2d 322 (9th Cir. 1979)........................................................ 6

EEOC v. Gen. Tel. Co. of the Nw.,

885 F.2d 575 (9th Cir. 1989)........................................................ 7

EEOC v. Harvey L. Walner & Assocs.,

91 F.3d 963 (7th Cir. 1996)........................................................ 20

EEOC v. Keco Indus.,

748 F.2d 1097 (6th Cir. 1984).................................................... 17

EEOC v. Mach Mining, LLC,

738 F.3d 171 (7th Cir. 2013)...................................................... 17

EEOC v. Monarch Mach. Tool Co.,

737 F.2d 1444 (6th Cir. 1980)...................................................... 8

EEOC v. Rhone-Poulenc, Inc.,

876 F.2d 16 (3d Cir. 1989).......................................................... 20

EEOC v. St. Louis-S.F. Ry.,

743 F.2d 739 (10th Cir. 1984)................................................ 8, 11

EEOC v. Sears, Roebuck & Co.,

839 F.2d 302 (7th Cir. 1988)........................................................ 5

EEOC v. Turtle Creek Mansion Corp.,

No. 93-1649, 1995 WL 478833 (N.D. Tex. May 18, 1995)........ 13

EEOC v. Turtle Creek Mansion Corp.,

82 F.3d 414 (5th Cir. 1996)........................................................ 13

EEOC v. United Parcel Serv.,

860 F.2d 372 (10th Cir. 1988).................................................... 20

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002).................................................................. 7, 9

Gavalik v. Cont’l Can Co.,

812 F.2d 834 (3d Cir. 1987).......................................................... 5

Gen. Tel. Co. of the Nw. v. EEOC,

446 U.S. 318 (1980)................................................ 6, 7, 10, 19, 20

Herdrich v. Pegram,

154 F.3d 362 (7th Cir. 1998)........................................................ 2

In re Bemis Co.,

279 F.3d 419 (7th Cir. 2002)........................................................ 9

Int’l Bhd. of Teamsters v. United States,

431 U.S. 324 (1977)............................................................. passim

Jefferson v. Ingersoll Int’l Inc.,

195 F.3d 894 (7th Cir. 1999)........................................................ 7

Lorillard v. Pons,

434 U.S. 575 (1978)..................................................................... 9

Malbrough v. Crown Equip. Corp.,

392 F.3d 135 (5th Cir. 2004).................................................. 1, 12

Marshall v. Sun Oil Co. (Del.),

605 F.2d 1331 (5th Cir. 1979)........................................ 16, 18, 19

McFarlin v. Conseco Servs., LLC,

381 F.3d 1251 (11th Cir. 2004).................................................. 14

Newsome v. EEOC,

301 F.3d 227 (5th Cir. 2002)...................................................... 17

Occidental Life Ins. Co. of Cal. v. EEOC,

432 U.S. 355 (1977).............................................................. 10, 18

Serrano v. Cintas Corp.,

699 F.3d 884 (6th Cir. 2012)............................................ 6, 11, 13

Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981)...................................................................... 5

United States v. Allegheny-Ludlum Indus.,

517 F.2d 826 (5th Cir. 1975)...................................................... 12

United States v. O’Brien,

560 U.S. 218 (2010)...................................................................... 8

Walls v. Miss. State Dep’t of Pub. Welfare,

730 F.2d 306 (5th Cir. 1984)...................................................... 14

Statutes

28 U.S.C. §1292(b)................................................................................. 1

29 U.S.C. § 626(d)(2)............................................................................ 19

42 U.S.C. §1981a(a)(1)........................................................................... 8

42 U.S.C. §2000e-2............................................................................... 11

42 U.S.C. §2000e-5................................................................... 1, 2, 4, 11

42 U.S.C. §2000e-5(a)............................................................................. 9

42 U.S.C. §2000e-5(b).................................................................... 16, 18

42 U.S.C. §2000e-5(f)(1)................................................................... 9, 10

42 U.S.C. §2000e-6................................................................... 1, 2, 4, 11

42 U.S.C. 2000e-6(b)............................................................................ 12

Introduction

In this Title VII enforcement action brought under the authority of §§706 and 707 of Title VII, 42 U.S.C. §§2000e-5, -6, the Equal Employment Opportunity Commission (“EEOC”) alleges that Bass Pro Outdoor World, LLC, and Tracker Marine, LLC (collectively, “Bass Pro”), engaged in a pattern or practice of unlawful discrimination by failing to hire Black and Hispanic applicants and retaliating against individuals who opposed the discriminatory hiring practices. District Court Docket No. (“R.”) 151 at 4-5. Bass Pro filed several summary judgment motions, which the district court denied. Bass Pro now seeks interlocutory review of the district court’s orders under 28 U.S.C. §1292(b), which permits interlocutory review of “a controlling question of law” as to which there is “substantial ground for difference of opinion” if “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Appellate jurisdiction extends only to interlocutory orders meeting all three requirements of §1292(b). Malbrough v. Crown Equip. Corp., 392 F.3d 135, 136 (5th Cir. 2004).

The two questions of law Bass Pro identifies do not meet the §1292(b) requirements. Bass Pro argues that this Court should grant an immediate appeal to decide whether the Commission may use the proof framework outlined by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), when it challenges a pattern or practice of discrimination under §706 of Title VII, 42 U.S.C. §2000e-5. The district court’s holding that the Commission could utilize this framework is consistent with Supreme Court precedent and the holding of every court of appeals to have addressed the issue. Moreover, regardless of whether the Commission may utilize Teamsters when it brings suit under §706, it is uncontested here that the Commission may utilize Teamsters for a suit also brought under §707 of Title VII, 42 U.S.C. §2000e-6. In other words, however this Court were to rule on the §706 issue if it accepted interlocutory review, the Commission could still, and expects to, proceed under the Teamsters framework in this case under §707.

Bass Pro also seeks interlocutory review of an order holding that the steps the Commission took at the administrative stage to investigate and attempt to resolve the matter through informal conciliation satisfied the administrative prerequisites to suit. The district court relied on well-settled precedent holding that where the Commission has outlined for the employer the scope of the class for whom it seeks relief, the Commission need not identify each individual claimant at the administrative stage. Interlocutory review is not warranted, for this question also fails to meet the requirements of §1292(b).

As this Court has held, a §1292(b) appeal is warranted only in the “exceptional” case that justifies departure from a final judgment rule that seeks to avoid “the delay and extra effort of piecemeal appeals.” Clark-Dietz & Assocs.-Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68 (5th Cir. 1983); see also Herdrich v. Pegram, 154 F.3d 362, 368 (7th Cir. 1998) (interlocutory appeals “all too frequently cause unnecessary delays in lower court proceedings”). This case—where the identified questions neither meet the requirements of §1292(b) nor otherwise present “exceptional” circumstances—does not justify such a departure.

Background

During its years-long administrative investigation of the Commissioner’s charge raising allegations of hiring discrimination and retaliation, the Commission uncovered information in support of the charge’s allegations. This information included statistical evidence indicating problems existed nationwide with Bass Pro’s hiring: as the Commission advised Bass Pro during its efforts to resolve the charge through informal conciliation, “[t]he statistical analysis we have performed … yields staggering results.” Based on data the Commission had thus far acquired, the under-hiring of minority applicants was so significant that the probability it occurred randomly “is less than one in a million.” R.119-18 at 3.

The Commission’s investigation also uncovered significant anecdotal evidence of Bass Pro managers’ discriminatory views of Blacks, Hispanics, and individuals complaining of discrimination. As set out in the complaint, a Texas store general manager told the store human resources manager that “it was getting a little dark in here. You need to hire some White people.” The same manager referred to Hispanic customers and employees as “wetback,” “spic,” and “Pedro,” and called Blacks “pimps” and “Monkeys.” A Louisiana assistant general manager objected to a Black applicant, arguing that the store’s “Bubba Clientele” would have a difficult time accepting a “Black woman” refusing them credit for returned items. In Mississippi, a store human resources manager observed that “[w]e just kick [] out the Black applicants at a much higher rate than we do the White applicants who have less outdoor experience.” An Oklahoma store general manager criticized a restaurant assistant general manager, asking him sarcastically, “You got enough niggers hired yet?,” and chided him for hiring a Black female employee whose skin condition lightened her complexion, stating “So, what, we are hiring White niggers, too?” In Indiana, an official was seen discarding employment applications on several occasions just after declaring that the applicant’s name “sounded like a ‘nigger’ name.” R.61 at 19-27; R.119-8 at 3-4.

The Commission filed suit, invoking its authority to bring an action in district court under two provisions of Title VII—§§706 and 707, 42 U.S.C. §§2000e-5 and 2000e-6. The Commission sought to prove that Bass Pro had engaged in a pattern or practice of discrimination, using the burden-shifting framework set out by the Supreme Court in Teamsters, 431 U.S. 324. Under that framework, the Commission’s initial burden is higher than in an individual, non-systemic case, for it must prove “more than the mere occurrence of isolated . . . discriminatory acts.” Teamsters, 431 U.S. at 336. The Commission must prove that “discrimination was the company’s standard operating procedure[—]the regular rather than the unusual practice.” Id. Proof concerning each individual class member’s injury is “appropriately left” to a second phase of proceedings “to determine individual relief,” id. at 342 n.24, because “at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.”[1] Id. at 359-60 & n.46.

The district court agreed with the Commission, and the great weight of authority, that the Commission could use the Teamsters proof method in its § 706 claim and that it was not required to identify each potential victim of discrimination during its administrative investigation of the pattern-or-practice charge. The court nevertheless certified these questions for interlocutory review. The Commission submits that neither question satisfies the rigorous requirements for interlocutory review, and Bass Pro’s petition should be denied.

Argument

I. Whether the Commission may rely on the Teamsters proof framework when it brings suit under §706 is not a question that meets the §1292(b) requirements.

The district court was correct when it held that §706 provides the Commission with ample authority to prove its discrimination claim under the Teamsters framework. Where the district court erred was in deeming the question a “close” one on which only one court of appeals has ruled, R.198 at 4.

In support of its ruling, the district court invoked the Sixth Circuit’s decision in Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012). In Cintas, the court of appeals addressed at some length the question Bass Pro raises here, and the court held that the Commission may “pursue a claim under the Teamsters pattern-or-practice framework, pursuant to its authority vested in §706 of Title VII.” Id. at 896.[2] And Cintas is not the only appellate court to rule on the issue—Cintas relied on Supreme Court authority that numerous courts of appeals have since followed.

That Supreme Court authority is General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980), which involved a §706 claim by the EEOC using the pattern-or-practice framework. See id. at 322, 333; EEOC v. General Tel. Co. of the Nw., 599 F.2d 322, 332 (9th Cir. 1979) (citing Teamsters). The defendant had challenged the Commission’s motion to follow the Teamsters framework absent certification under Federal Rule of Civil Procedure 23, but the Supreme Court did not question the EEOC’s ability to use this framework under §706, and held that the EEOC need not seek Rule 23 certification when it does so. Bass Pro dismisses the significance of General Telephone, arguing that “[n]othing” in §706 gives the Commission the ability to use the Teamsters proof framework and suggesting that the Commission instead must look to Rule 23, Pet. 18-19, but Bass Pro’s argument is contradicted by the Supreme Court itself. The Court explained that “the EEOC need look no further than §706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals.” Gen. Tel., 446 U.S. at 324; see also EEOC v. Waffle House, Inc., 534 U.S. 279, 288 (2002) (same). On remand after the Supreme Court’s decision, the Commission, still proceeding under §706, went on to try the case using the Teamsters framework. See EEOC v. General Tel. Co. of the Nw., 885 F.2d 575, 577, 584 (9th Cir. 1989).

After General Telephone, several other courts of appeals recognized that the EEOC may use the Teamsters framework in a §706 case. See Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 899 (7th Cir. 1999) (General Telephone “holds that, as the plaintiff in a pattern-or-practice suit under §706(f)(1)…, the EEOC may seek classwide relief”); EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1184, 1187-88 (4th Cir. 1981) (noting the EEOC’s “broad enforcement powers” under §706; holding that the EEOC had proved a “pattern or practice of discrimination” under Teamsters); EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444, 1446-49 (6th Cir. 1980); see also EEOC v. St. Louis-S.F. Ry., 743 F.2d 739, 743-44 (10th Cir. 1984) (holding that, after General Telephone, EEOC was not confined to challenging individual instances of discrimination when it brings suit under §706, but could seek class-wide relief). No court of appeals has held to the contrary.

Bass Pro suggests that this Court has ruled to the contrary. See Pet. 13 (“the Fifth Circuit has ruled there is no pattern or practice cause of action under §706”) (citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355-56 (5th Cir. 2001)). Bass Pro’s suggestion is misleading. In fact, Celestine acknowledged that the Government can invoke the Teamsters proof framework; Celestine never discussed or even cited to §706. Id. What Celestine held was that Teamsters could not be used in “private non-class suits.” Id. at 355-56 & n.4 (emphasis added).

Bass Pro argues (Pet.19 n.81) that General Telephone is not relevant because it was decided before the Civil Rights Act of 1991, which authorized damage awards in actions brought under §706. See 42 U.S.C. §1981a(a)(1). Although Bass Pro views the 1991 Civil Rights Act as key to interpreting §706 (e.g., Pet.17-18), Congress last modified §706(f)(1) in 1972 and left it unchanged by the 1991 amendments. That indicates that Congress intended to leave intact General Telephone’s interpretation of that provision. See United States v. O’Brien, 560 U.S. 218, 231 (2010) (“Congress does not enact substantive changes sub silentio”); Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of [a] … judicial interpretation” of a statutory provision and “to adopt that interpretation” when it re-enacts the statute without changing the provision).

The Supreme Court and several courts of appeals have recognized that the 1991 Act did not alter General Telephone’s interpretation of Title VII. See Waffle House, 534 U.S. at 288 (“Against the backdrop of our decision [] in … General Telephone, Congress expanded the remedies available in EEOC enforcement actions in 1991 to include compensatory and punitive damages.”); In re Bemis Co., 279 F.3d 419, 421-22 (7th Cir. 2002) (availability of damages after 1991 Act in no way alters “the validity or scope of General Telephone”); EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 588 (9th Cir. 2000) (same). There is no support for Bass Pro’s argument that the 1991 Act upends General Telephone and its progeny.

Bass Pro’s argument is also unsupported by the text of §706 itself. Section 706(f)(1) broadly provides that the EEOC “may bring a civil action against any respondent … named in the charge.” 42 U.S.C. §2000e-5(f)(1); see also 42 U.S.C. §2000e-5(a) (EEOC “is empowered … to prevent any person from engaging in any unlawful employment practice”). Nothing in this language limits the EEOC to any particular method of proof when suing to remedy a violation of Title VII. Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 366 (1977) (§706(f)(1) “imposes no limitation upon the power of the EEOC to file suit in a federal court”); see generally Teamsters, 431 U.S. at 358 (rejecting contention that the McDonnell Douglas framework is “the only means” of proving discrimination) (emphasis added).[3]

Bass Pro’s suggestion that §706’s language is limiting mischaracterizes the statutory text. Bass Pro states that “EEOC may seek relief under §706 on behalf of specific aggrieved individuals.” Pet.3 & n.12 (citing 42 U.S.C. §2000e-5). In fact, §706 contains no language stating that an EEOC suit is “on behalf” of individuals, and §706(f)(1) uses the term “person or persons aggrieved” to authorize such individuals to intervene in EEOC actions, not to limit the EEOC’s authority to sue. 42 U.S.C. §2000e-5(f)(1). The right of intervention reflects Congress’ understanding that the EEOC does not simply act on individuals’ behalf when it brings suit under §706, but “acts also to vindicate the public interest in preventing employment discrimination.” Gen. Tel., 446 U.S. at 326.

Citing a decision from the Tenth Circuit, Bass Pro contends that “‘[t]he thrust of §706 actions … is vindication of individual instances of discrimination,’” while §707 is oriented towards systemic discrimination. Pet.6 (citing EEOC v. Cont’l Oil Co., 548 F.2d 884, 887 (10th Cir. 1977) (emphasis omitted)). Again, Bass Pro’s argument is misleading. Almost 35 years ago, General Telephone did away with that conception of EEOC’s authority under §706—a fact the Tenth Circuit itself later recognized when it explicitly disavowed that language from Continental Oil. See St. Louis-S.F. Ry., 743 F.2d at 743-44 (holding that EEOC’s authority to seek classwide relief under §706 has been “squarely decided by the Supreme Court in General Telephone, and we therefore follow that decision.”).[4]

Bass Pro contends that interpreting §706 to permit use of the pattern-or-practice framework renders §707 “superfluous.” Pet.14. Bass Pro is incorrect because there are important differences between §706 and §707. In particular, §707 includes features that allow the government to act expeditiously to halt a pattern or practice of discrimination. First, unlike §706, §707 “permits the EEOC to initiate suit without first receiving a charge.” Cintas, 699 F.3d at 896. Second, while Congress conferred upon private parties the “right to intervene” in an EEOC action filed under §706(f)(1), no such right of intervention exists under §707. That aspect of the statute furthers the government’s ability to act quickly to resolve discrimination through a §707 suit. United States v. Allegheny-Ludlum Indus., 517 F.2d 826, 842-44 (5th Cir. 1975). Third, unlike §706, §707 allows the government to request that the case be heard initially by a three-judge district court, whose decision is appealable directly to the Supreme Court. 42 U.S.C. §2000e-6(b).

The absence of a “substantial ground for difference of opinion” alone is a sufficient basis to deny the petition. See Malbrough 392 F.3d at 136 (appellate jurisdiction extends only to interlocutory orders meeting all three §1292(b) requirements). The order also fails on the other §1292(b) requirements. This Court’s immediate review of the certified questions will not materially advance the conclusion of this litigation, even if this Court were to grant interlocutory review and rule that the Commission may not use the Teamsters framework when it brings suit under §706. The parties do not dispute that the Commission may utilize the Teamsters framework to establish its discrimination claim under §707, and plans to do so. This will necessarily involve both a stage 1 trial as to liability, and, if liability is established, a stage 2 trial as to back pay and other equitable relief—all as to the same potential victims of discrimination encompassed in the Commission’s claim under §706. In short, the first stage of a §707 trial under Teamsters would be largely identical to a §706 trial under Teamsters.

Of course, if the district court were to find at the end of stage 1 proceedings that the Commission failed to meet its higher burden of proof in that liability phase of its pattern or practice case, that finding would make any issues regarding Teamsters and §706 moot. See, e.g., EEOC v. Turtle Creek Mansion Corp., No. 93-1649, 1995 WL 478833, at *10 (N.D. Tex. May 18, 1995) (no Teamsters stage 2 trial in §706 pattern-or-practice case where Commission failed to establish liability in stage 1 trial), aff’d, 82 F.3d 414 (5th Cir. 1996)[5]; cf. Cintas, 699 F.3d at 896 (“[U]nder Teamsters, the plaintiff’s initial burden to make out a prima facie case is heightened.”). The district court also may rule prior to trial that the Commission has insufficient evidence of a pattern or practice of discrimination to survive summary judgment. A §706/Teamsters ruling by this Court would be rendered irrelevant under either of these scenarios, and so would not shorten the litigation at all.

Even if the case proceeded to stage 2 proceedings under §706 or §707, any stage 2 trial would entail the presentation of individualized evidence regarding each potential victim’s entitlement to relief, Teamsters, 431 U.S. at 361-62, and much of that evidence would be focused on back pay and mitigation issues. See Walls v. Miss. State Dep’t of Pub. Welfare, 730 F.2d 306, 323 (5th Cir. 1984) (government is “entitled to recover back pay and other retroactive equitable relief for victims of discrimination, when it prevails in a [§707-based] Title VII pattern and practice suit”). It is true that the unavailability of compensatory or punitive damages would shorten discovery and the stage 2 trial under §707, but because punitive damages would be so connected to the liability issue, eliminating those damages from the equation will not materially advance the conclusion of this litigation. See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (materially advance requirement “means that resolution of a controlling legal question would … avoid a trial or otherwise substantially shorten the litigation”) (citations omitted; emphasis added).

Finally, Bass Pro asserts that permitting the Commission to rely on the Teamsters framework raises “insurmountable” Seventh Amendment problems because in its view, that framework creates “overlapping” issues between stage 1 and 2 trials. Pet.19-20. With regard to back pay or compensatory damages, it is difficult to understand what overlap there might be: once a jury finds that the defendant engaged in a pattern or practice of discrimination, the stage 2 proceeding is limited to determining the proper remedies for the established violation. See Teamsters, 431 U.S. at 361 (plaintiff does not re-prove liability in the remedial stage: “the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage”). In Allison v. Citgo Petroleum Corp., this Court observed that courts must manage pattern-or-practice cases so as to avoid “potential” Seventh Amendment violations, but this Court did not preclude pattern-or-practice litigation. 151 F.3d 402, 419-20 (5th Cir. 1998). The district court here acknowledged as much, recognizing that other courts have successfully avoided Seventh Amendment conflicts in pattern-or-practice cases, and stating it would carefully consider any possible Seventh Amendment issues when it assesses the case management plan for this litigation. R.184 at 30. Bass Pro has cited no authority holding that the Seventh Amendment necessarily precludes §706 pattern-or-practice cases, and none exists; so this issue does not indicate a substantial ground for difference of opinion.

II. Whether the Commission must investigate on an individualized basis before it brings suit under §706 is not a question that meets the §1292(b) requirements.

Nothing in the statute requires the Commission to identify every victim when it investigates systemic discrimination against a class of individuals, and there is no substantial ground for difference of opinion on this point. Indeed, no court of appeals that has considered the issue holds that the EEOC must identify each individual at the administrative stage when it later brings suit alleging a pattern or practice of discrimination under §706.

The plain language of the statute requires that the Commission “make an investigation of [a] charge” to determine whether there is “reasonable cause” to believe that the employer violated Title VII. 42 U.S.C. §2000e-5(b). Upon reaching such a determination, the Commission must attempt to resolve the matter through “informal methods,” including conciliation. Id. During that process, the Commission is simply required to “outline to the employer the reasonable cause for its belief that Title VII has been violated.” EEOC v. Agro Distrib., LLC, 555 F.3d 462, 468 (5th Cir. 2009); see also Marshall v. Sun Oil Co. (Del.), 605 F.2d 1331, 1335 (5th Cir. 1979) (in the conciliation process, the EEOC must “present a reasonable showing of discrimination, but we find no statutory basis for requiring that [it] produce as much evidence as [it] would need to prevail at trial, to satisfy the alleged wrongdoer or meet some nonexistent burden of proof”).

The statute contains no additional pre-suit requirements and, once filed, the EEOC’s suit is tried de novo. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (EEOC “cannot adjudicate claims or impose administrative sanctions…. [R]esponsibility for enforcement of Title VII is vested with federal courts.”). For this reason, courts generally do not review EEOC determinations to evaluate whether they are supported by substantial evidence or otherwise probe into the EEOC’s administrative investigation. See Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (Title VII “does not prescribe the manner” for investigating; “nature and extent” of EEOC investigation is matter within agency discretion); EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005) (holding EEOC investigation “not judicially reviewable”); EEOC v. Keco Indus., 748 F.2d 1097, 1100 (6th Cir. 1984) (rejecting two-stage adjudication model because it would “deflect the efforts of both the court and the parties from the main purpose of this litigation: to determine whether [the employer] has actually violated Title VII”).[6]

In this case, the Commission’s administrative investigation uncovered statistical and anecdotal evidence of a pattern or practice of discrimination by Bass Pro. It is undisputed that the Commission outlined the scope of the class. Bass Pro has pointed to no statutory provision that requires the Commission to do more (namely, identify each victim) at the administrative stage. Thus there is no basis for a substantial difference of opinion on the question Bass Pro raises.

This Court long ago rejected the proposition that Bass Pro suggests—that the government must investigate pattern-or-practice discrimination claims by “first determin[ing] the exact extent of each [individual] violation, [and] then separately document[ing] all . . . of the individual cases for the discriminating employer.” Sun Oil, 605 F.2d at 1334. Addressing this question in the context of the Commission’s conciliation obligation—an obligation integrated under Title VII with the charge investigation and reasonable cause determination, see 42 U.S.C.

§ 2000e-5(b); Occidental, 432 U.S. at 359[7]—this Court rejected an individualized-investigation requirement for government-initiated pattern-or-practice suits as an “inflexible requirement[] unsupported by the statute.” Sun Oil, 605 F.2d at 1334. This Court recognized that “[t]he large scale discriminator would present the [government] with an onerous and costly burden of investigation if the [government] were required to prove each individual case of discrimination,” and “such a burden would frustrate the [government’s] ability to attempt conciliation in many cases.” Id. at 1335.

Moreover, as this Court recognized in Sun Oil, when the Commission “has come forward in the conciliation process with statistical evidence showing a pattern or practice of . . . discrimination,” such “evidence supports an inference that each class member is entitled to full individual relief.” [8] 605 F.2d at 1336 n.2. “‘The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decisionmaking. The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.’” Id. (quoting Teamsters, 431 U.S. at 362).

The Supreme Court’s decision in General Telephone also strongly suggests no such requirement exists. In General Telephone, the Commission filed suit after investigating four individual charges of sex discrimination and concluding that discrimination was widespread across four states. 446 U.S. at 320, 324. Nothing in the Supreme Court’s opinion indicates the Commission had identified all potential claimants before filing suit, and nothing in the Supreme Court’s opinion suggests doing so was necessary. Rather, the Supreme Court said, “the EEOC need look no further than §706 for its authority to bring suit in its own name for the purpose . . . of securing relief for a group of aggrieved individuals.” Id. at 324.

Moreover, both before and after passage of the Civil Rights Act of 1991, every other court of appeals has reached the same conclusion in interpreting the Commission’s investigation obligation when it later brings a §706 pattern-or-practice suit.[9] The one appellate case on which Bass Pro relies—EEOC v. CRST Van Expedited, 679 F.3d 657 (8th Cir. 2012)—undermines Bass Pro’s argument. Unlike this case, CRST did not involve the pattern-or-practice method of proof, and the court expressed “no view” on whether its holding would apply to pattern-or-practice cases. Id. at 676 n.13. Accordingly, there is no substantial ground for difference of opinion.

CONCLUSION

The Commission requests that this Court deny the petition.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

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Office of General Counsel

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Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

[1] Bass Pro asserts that the Teamsters proof model “is a departure from the general rule that ‘the ultimate burden of persua[sion] . . . remains at all times with the plaintiff.’” Pet.19. Bass Pro is incorrect, because in cases where EEOC uses that model “‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated … remains at all times with the plaintiff.’” EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 308-09 (7th Cir. 1988) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see also Gavalik v. Cont’l Can Co., 812 F.2d 834, 863 (3d Cir. 1987) (holding that the Teamsters proof scheme is consistent with Burdine because when the burden shifts to the defendant in stage 2 under the Teamsters approach, “at this stage the [plaintiff’s] ultimate burden of persuading the court that the employer intentionally discriminated against the class has been carried”).

[2] Bass Pro maintains that the court of appeals divided 2-1 on this issue. Pet. 1-2. Bass Pro is incorrect: the dissenting judge disagreed on a different issue, and stated only that she therefore “would not reach” the §706 issue. Cintas, 699 F.3d at 907. The Sixth Circuit denied rehearing en banc on this question, id. at 884; the Supreme Court denied certiorari, 134 S. Ct. 92 (2013).

[3] Legislative history, invoked by the Supreme Court in General Telephone, confirms Congress’ intent that the EEOC be allowed to use the pattern-or-practice framework in a §706 action. See 446 U.S. at 329 (quoting floor manager statement that §706 would allow the EEOC to bring pattern or practice cases) (citing 118 Cong. Rec. 4081-82 (1972)).

[4] Bass Pro also states that §706 and §707 are provisions that must be “pled and proved.” Pet.6. This statement is confusing, for it is not §706 that must be proved. What the Commission must prove is unlawful discrimination in violation of §703, 42 U.S.C. § 2000e-2. Section 706 is simply the provision that authorizes the EEOC to file suit. See 42 U.S.C. § 200e-5.

[5] The district court appeared to be under the misapprehension that “settlement pressure” would preclude the Teamsters issue from being addressed by the court of appeals, short of interlocutory appeal. R.198. at 6. The likelihood of reviewability is not a §1292(b) factor but, even if it were, the district court’s assumption was incorrect. In a situation like Turtle Creek, where the EEOC appealed, the employer could raise the Teamsters issue as an alternative ground for affirmance. The fact that the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits have addressed the issue in different scenarios, see infra, at 7-8, is further evidence that should dissipate the district court’s professed concern.

Bass Pro cites Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996), as supporting the notion that “aggregating claims” necessarily brings undue pressure on defendants to settle and is tantamount to “blackmail.” Pet.19. Castano was a very different case from this one: Castano’s observation of undue settlement pressure was rendered in the context of Rule 23 certification of a private class action against tobacco companies where the suit alleged millions of potential class members—“all nicotine dependent persons in the United States,” based on a “new theory of liability,” and rife with “extensive manageability problems with this class” including “difficult choice of law determinations, subclassing of eight claims with variations in state law, Erie guesses, notice to millions of class members, further subclassing to take account of transient plaintiffs, and the difficult procedure for determining who is nicotine-dependent.” 84 F.3d at 737-38, 746-48. These factors led this Court to observe that the “traditional concern over the rights of defendants in mass tort class actions is magnified in the instant case.” Id. at 746-47. None of these factors (including Rule 23 issues) is present here, nor does Castano otherwise suggest a substantial ground for difference of opinion on whether the Commission can properly rely on the Teamsters framework in a §706 case. And, unlike Castano, the Commission’s undisputed ability to proceed with Teamsters under §707 means that a ruling would not materially shorten the litigation.

[6] Cf. EEOC v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013) (conciliation not judicially reviewable), cert. granted, 134 S. Ct. 2872 (2014). Bass Pro asserts that a Supreme Court decision in Mach “will not resolve” the individual investigation question. Pet.16. But briefing at the Court has addressed the question, see 2014 WL 5464087, at *53 n.23 (Brief of U.S.) (“The statutory text provides no basis for requiring all possible victims to be identified during conciliation”), counseling against interlocutory appeal.

[7] In Occidental, the Supreme Court recognized that with Title VII “Congress established an integrated, multistep enforcement procedure” that “require[s the EEOC] to investigate the charge and determine whether there is reasonable cause to believe that it is true,” and upon such determination “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.’” 432 U.S. at 359.

[8] Sun Oil involved a claim under the Age Discrimination in Employment Act, which contains a conciliation requirement substantially similar to Title VII. See 29 U.S.C. §626(d)(2). In addition, in Sun Oil this Court characterized Teamsters (Title VII) as “analogous.” 605 F.2d at 1336 n.2.

[9] See Cintas, 699 F.3d at 904-05 (holding EEOC’s investigation and conciliation on a class-wide basis adequate in §706 pattern-or-practice case); EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996) (noting “EEOC’s ability to challenge discrimination affecting unidentified members of a known class”) (citing EEOC v. United Parcel Serv., 860 F.2d 372, 374 (10th Cir. 1988) (holding that EEOC may challenge no-beard policy that may affect unidentified members of known class)); EEOC v. Bruno’s Rest., 13 F.3d 285, 289 (9th Cir. 1993) (noting that, for purposes of §706 pattern-or-practice claims, EEOC is “not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant”) (quoting EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16, 17 (3d Cir. 1989)). Thus even if the possibility of review were relevant to the §1292(b) analysis, this list of cited cases is evidence contradicting the district court’s assumption, R.198 at 9, that settlement pressures would make it difficult for courts of appeals to review the issue.