Table of Authorities

Cases Page(s)

Abner v. Kansas City S. R.R. Co.,

513 F.3d 154 (5th Cir. 2008).................................................. 41

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974)................................................................... 49

Allison v. Citgo Petroleum Corp.,

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

Ariz. ex rel. Goddard & EEOC v. Geo Grp., Inc.,

No. 10-1995, 2012 WL 8667598 (D. Ariz. Apr. 17, 2012).. 57

Brown v. Ala. Dep’t of Transp.,

597 F.3d 1160 (11th Cir. 2010)............................................. 40

Castano v. Am. Tobacco Co.,

84 F.3d 734 (5th Cir. 1996).................................................... 37

Celestine v. Petroleos de Venezuella SA,

266 F.3d 343 (5th Cir. 2001).................................................. 15

Cintas Corp. v. EEOC,

134 S. Ct. 92 (2013)................................................................... 8

David v. Signal Int’l LLC,

37 F. Supp. 3d 814 (E.D. La. 2013)....................................... 26

Davis v. Coca-Cola Bottling Co.,

516 F.3d 955 (11th Cir. 2008)................................................ 38

EEOC v. Agro Distrib., LLC,

555 F.3d 462 (5th Cir. 2009).................................................. 43

EEOC v. Am. Nat’l Bank,

652 F.2d 1176 (4th Cir. 1981)......................................... 24, 53

EEOC v. Bloomberg L.P.,

967 F. Supp. 2d 802 (S.D.N.Y. 2013).................................... 56

EEOC v. Bruno’s Rest.,

13 F.3d 285 (9th Cir. 1993).................................................... 55

EEOC v. Caterpillar, Inc.,

409 F.3d 831 (7th Cir. 2005) .......................................... 51, 55

EEOC v. Chesapeake & Ohio Ry.,

577 F.2d 229 (4th Cir. 1978).................................................. 47

EEOC v. Chicago Miniature Lamp Works,

526 F. Supp. 974 (N.D. Ill. 1981).......................................... 51

EEOC v. Cintas Corp.,

No.2:04-cv-40132 (E.D. Mich. Aug. 20, 2015)...................... 39

EEOC v. Cont’l Oil Co.,

548 F.2d 884 (10th Cir. 1977)................................................ 32

EEOC v. CRST Van Expedited, Inc.,

679 F.3d 657 (8th Cir. 2012)............................... 48, 53, 55, 56

EEOC v. D.H. Holmes Co.,

556 F.2d 787 (5th Cir. 1977).................................................. 29

EEOC v. Dillard’s Inc.,

No. 08-CV-1780, 2011 WL 2784516

(S.D. Cal. July 14, 2011)......................................................... 57

EEOC v. Dinuba Med. Clinic,

222 F.3d 580 (9th Cir. 2000).................................................. 27

EEOC v. Gen. Elec. Co.,

532 F.2d 359 (4th Cir. 1976).................................................. 51

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

885 F.2d 575 (9th Cir. 1989).................................................. 23

EEOC v. Harvey L. Walner & Assocs.,

91 F.3d 963 (7th Cir. 1996).............................................. 32, 54

EEOC v. Keco Indus.,

748 F.2d 1097 (6th Cir. 1984)......................................... 47, 50

EEOC v. Monarch Mach. Tool Co.,

737 F.2d 1444 (6th Cir. 1980)................................................ 24

EEOC v. Olson’s Dairy Queens, Inc.,

989 F.2d 165 (5th Cir. 1993).................................................. 25

EEOC v. Olson’s Dairy Queens, Inc.,

803 F. Supp. 1215 (S.D. Tex. 1991)...................................... 25

EEOC v. Original Honeybaked Ham Co.,

918 F. Supp. 2d 1171 (D. Colo. 2013)................................... 56

EEOC v. Pitre, Inc.,

908 F. Supp. 2d 1165 (D.N.M. 2012).................................... 26

EEOC v. PMT Corp.,

No. 14-599 (D. Minn. Aug. 24, 2015).................................... 26

EEOC v. Rhone-Poulenc, Inc.,

876 F.2d 16 (3d Cir. 1989)...................................................... 55

EEOC v. St. Anne’s Hosp.,

664 F.2d 128 (7th Cir. 1981).................................................. 51

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

743 F.2d 739 (10th Cir. 1984)......................................... 24, 55

EEOC v. Swissport Fueling, Inc.,

916 F. Supp. 2d 1005 (D. Ariz. 2013).................................... 56

EEOC v. Target Corp.,

No. 02-C-146, 2007 WL 1461298

(E.D. Wis. May 16, 2007)........................................................ 56

EEOC v. United Parcel Serv.,

860 F.2d 372 (10th Cir. 1988)................................................ 55

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002).......................................................... 23, 27

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008)................................................................. 35

Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976)............................................................. 6, 16

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

446 U.S. 318 (1980)......................................................... passim

Ho v. Martin Marietta Corp.,

845 F.2d 545 (5th Cir. 1988).................................................. 37

In re Bemis Co.,

279 F.3d 419 (7th Cir. 2002).................................................. 27

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).................................................. 24

Lorillard v. Pons,

434 U.S. 575 (1978)................................................................ 27

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015)..................................................... passim

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

605 F.2d 1331 (5th Cir. 1979)................................... 47, 52, 53

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)............................................................. 9, 22

Mullen v. Treasure Chest Casino, LLC,

186 F.3d 260 (5th Cir. 1999).................................................. 41

Nat’l R.R. Passenger Corp v. Morgan,

536 U.S. 101 (2002)................................................................. 16

Newsome v. EEOC,

301 F.3d 227 (5th Cir. 2002).................................................. 50

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

432 U.S. 355 (1977)................................................ 9, 19, 43, 47

Procter & Gamble Co. v. Amway Corp.,

376 F.3d 496 (5th Cir. 2004).................................................. 44

Serrano v. Cintas Corp.,

699 F.3d 884 (6th Cir. 2012)................................. 8, 24, 31, 53

Swierkiewicz v. Sorema, N.A.,

534 U.S. 506, 511 (2002)........................................................ 22

United States v. Allegheny-Ludlum Indus.,

517 F.2d 826 (5th Cir. 1975)............................... 29, 30, 31, 33

United States v. Bd. of Educ. for Sch. Dist. of Phila.,

911 F.2d 882 (3d Cir. 1990)................................................... 34

United States v. Fresno Unified Sch. Dist.,

592 F.2d 1088 (9th Cir. 1979)................................................ 32

United States v. Original Knights of the Ku Klux Klan,

250 F. Supp. 330 (E.D. La. 1965).......................................... 34

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

730 F.2d 306 (5th Cir. 1984).................................................. 40

Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541 (2011)................................................ 35, 38, 40

Statutes

29 U.S.C. § 626(d)(2)......................................................................... 52

42 U.S.C. §1981a(a)(1).................................................................. 6, 28

42 U.S.C. §2000e-2(a)(1)................................................................... 19

42 U.S.C. §2000e-5.............................................................................. 5

42 U.S.C. §2000e-5(a)................................................................... 1, 18

42 U.S.C. §2000e-5(b)................................................................. 43, 48

42 U.S.C. §2000e-5(f)(1)............................................................. 18, 44

42 U.S.C. §2000e-6.............................................................................. 5

42 U.S.C. §2000e-6(a)................................................................. 21, 33

42 U.S.C. §2000e-6(b)....................................................................... 33

42 U.S.C. §2000e-6(e)....................................................................... 32

Other Authority

S. Rep. 92-415 (1992)........................................................................ 19

118 Cong. Rec. 4081 (1972).............................................................. 20

118 Cong. Rec. 4082 (1972).............................................................. 20

118 Cong. Rec. 4941 (1972).............................................................. 19

Brief for Petitioner, Mach Mining, LLC v. EEOC,

Supreme Court No.13-1019, 2014 WL 4380090

(filed Sept. 4, 2014).......................................................................... 46

Brief for the United States, United States v. N.C., 4th Cir.

Appeal No.77-164, 1977 WL 203655 (filed June 15, 1977)...... 30

Civil Rights Act of 1991, Pub. L. No. 102-166, §2(1),

105 Stat. 1071.................................................................................. 28

EEOC Complaint, EEOC v. Mach Mining, LLC, No.3:11-cv-879

(S.D. Ill Sept. 27, 2011)................................................................... 44

EEOC Response Brief, EEOC v. Cintas Corp., E.D. Mich.

Docket No. 2:04-cv-40132 (Filed Mar. 17, 2014)......................... 39

Statement of the Issues

1. May the Commission rely on the burden-shifting method of proof set out by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), to prove that Bass Pro engaged in a pattern or practice of discrimination when the Commission brings suit pursuant to §706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a)?

2. Did the Commission fulfill its presuit requirements where the scope of its lawsuit mirrored the scope of its investigation and administrative determination, where it engaged in conciliation prior to filing suit, and where there is no requirement that the Commission identify every individual victim of discrimination at the administrative stage?

Statement of the Case

I. Statement of Facts

On February 20, 2007, an EEOC commissioner filed a Title VII charge alleging that the commissioner “ha[d] reason to think” that Bass Pro “ha[d] since at least November 2005[] discriminated against African American applicants and employees on the basis of their race at Bass Pro Shops’ retail stores and facilities nationwide.”[1] Record on Appeal (“ROA”).6086,7591-92. The commissioner later amended the charge to include Hispanic applicants and employees and to specify that the discriminatory hiring practices included “failing to recruit and/or hire” African American and Hispanic applicants, and “[u]tilizing recruiting, hiring, and promoting policies and/or practices which adversely impact African American or black employee [sic] or applicants’ ability to obtain positions in its retail stores.” ROA.7592.

The Commission investigated the charge over a three-year period, during which “the parties exchanged numerous letters, met at least three times,” and Bass Pro “produced over 230,000 pages of documents.” ROA.7592. The investigation yielded statistical evidence that problems existed nationwide with Bass Pro’s hiring: as the Commission later advised Bass Pro during its efforts to resolve the charge informally through conciliation, “[t]he statistical analysis we have performed . . . yields staggering results.” ROA.6200. The under-hiring of minority applicants was so significant that the probability it occurred randomly was “less than one in a million.” ROA.6200.

The investigation also uncovered significant anecdotal evidence that Bass Pro managers held discriminatory views of African-Americans and Hispanics. For example, in Texas a 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.” ROA.5144. The same general manager referred to Hispanic customers and employees as “wetback,” “spic,” and “Pedro,” and called African-Americans “pimps” and “Monkeys.” ROA.5144.

A Louisiana assistant general manager objected to an African-American applicant, arguing that the store’s “Bubba Clientele” would have a difficult time accepting a “Black woman” refusing them credit for returned items. ROA.5143-44. An Oklahoma store general manager criticized a Bass Pro restaurant assistant general manager, asking him sarcastically, “[y]ou got enough niggers hired yet?” and chiding him for hiring an African-American female employee whose skin condition lightened her complexion, stating “[s]o, what, we are hiring White niggers, too?” ROA.5148.

In Indiana, an official was seen discarding employment applications on several occasions after declaring that the applicant’s name “sounded like a ‘nigger’ name.” ROA.5149. 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.” ROA.5146. A former Mississippi Store Human Resources Manager attested that Bass Pro’s store and corporate management were “on a mission to just hire Whites.” ROA.5145.

On April 29, 2010, the Commission issued its Letter of Determination on the commissioner’s charge, announcing it had found reasonable cause to believe that “since at least November 2005” Bass Pro had engaged in “a nationwide pattern and practice of discriminating against African American and/or Black and Hispanic individuals with respect to store hiring for hourly and salaried positions on the basis of race and national origin.” ROA.6123-27. One week later, the Commission contacted Bass Pro to initiate the conciliation process in an attempt to resolve the charge informally. ROA.7592.

Eleven months of discussion and settlement efforts ensued. The Commission informed Bass Pro during this time that it had “identified approximately 100 specific individuals who were alleged victims of discrimination,” ROA.6092,6099, and Bass Pro later acknowledged as much in a district court filing. ROA.6092,6099. The Commission also informed Bass Pro during conciliation that “more than 200 of the applicants that Bass Pro Shops failed to hire are African Americans.” ROA.6214-15.

The Commission did not identify the entire class of victims at this stage but instead outlined the scope of the class of individuals for Bass Pro. To conduct the investigation differently by focusing on each individual rather than on the class, a Commission attorney subsequently explained, was not the best investigatory approach because of the “enormous practical burdens for the EEOC.” ROA.7706-07.

After determining that conciliation had failed, the Commission filed suit pursuant to its authority under §§706 and 707 of Title VII, 42 U.S.C. §§2000e-5 & -6, alleging pattern-or-practice discrimination. ROA.5124-25. Prior to discovery, Bass Pro moved to dismiss the Commission’s claim brought under §706 and alleging a pattern or practice of discrimination. Bass Pro argued that the Commission could not prove its claim through use of the framework set out by the Supreme Court in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), and International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), when it brings suit under §706. ROA.9374,9377. Only when the Commission sues under the authority of §707 may the Commission use the Teamsters approach, Bass Pro argued.

Underlying Bass Pro’s argument for dismissing the Commission’s §706 action is the fact that Congress amended Title VII to make damages available under §706. Thus if the Commission were to prove that discrimination was Bass Pro’s “standard operating procedure,” Teamsters, 431 U.S. at 336, it could seek damages for any applicant who suffered a compensable injury (beyond the economic injury of denial of a job), and punitive damages if it proved that Bass Pro’s practice was undertaken with malice or reckless indifference to individuals’ rights. If the §706 claim were dismissed, and only the §707 claim remained, those damages would not be available. See generally 42 U.S.C. §1981a(a)(1) (providing availability of compensatory and punitive damages in an “action brought by a complaining party under section 706”).

Bass Pro also moved for summary judgment regarding the Commission’s conciliation efforts with respect to its claim brought under §706. Bass Pro asserted that the Commission should have identified and conciliated on behalf of each potential class member, on an individual basis, but did not do so. ROA.6045-49.

II. District court decisions

The district court initially agreed with Bass Pro that the Commission could not prove a pattern or practice of discrimination when it brings suit under §706. ROA.9376-78. The court denied Bass Pro’s summary judgment motion regarding conciliation but directed the parties to conciliate for an additional thirty days. The additional conciliation was unsuccessful, and both parties asked the court to reconsider its earlier rulings. ROA.9377.

On July 30, 2014, the district court granted the Commission’s reconsideration motion. The court held that the Commission could use the Teamsters framework to prove its claim when it brought suit under §706. The court declined Bass Pro’s invitation to revisit its prior rulings on conciliation, and also held that the Commission was not required to identify each potential class member during its pre-suit investigation. ROA.9374-75.

Addressing the pattern-or-practice issue, the court noted that the Sixth Circuit had recently addressed “the exact question posed here” and held the Commission could utilize the Teamsters framework to prove a claim under §706. ROA.9385 (discussing Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012), cert. denied sub nom. Cintas Corp. v. EEOC, 134 S. Ct. 92 (2013)).

Finding Cintas “persuasive,” the district court stated that it, “like the [Cintas] court,” understands Supreme Court precedent as “sanction[ing] a flexible approach to proving Title VII violations that can be adapted to the case at hand”; this flexible approach should not be limited by “the code section under which the suit is initiated.”[2] ROA.9388. The court concluded that Cintas “is consistent with the statutory text and purpose, and is supported by precedent from the Supreme Court, several courts of appeals, and other district courts.” ROA.9388-89. The court observed that the statute did not require a particular proof framework, and that “§706(f)(1) ‘imposes no limitation upon the power of the Commission to file suit in a federal court.’” ROA.9389 (citing Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 366 (1977)).

The court also agreed that General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980), endorsed the Commission’s use of the Teamsters framework in §706 suits. ROA.9389. General Telephone held that the Commission need not seek Rule 23 class certification to secure classwide relief, but could rely on its authority under §706 to secure relief for a group of aggrieved individuals. ROA.9389-90. “It strains credulity,” the district court continued, “to suggest that, in the course of granting the EEOC permission to sidestep Rule 23 in suits brought on behalf of a class and pursuant to §706, the Court intended to require that the Commission prove each class member’s claim in the manner set forth in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)].” ROA.9390.

The court rejected Bass Pro’s arguments that applying the Teamsters framework to claims brought under §706 would render §707 superfluous, noting significant differences between each statutory provision. ROA.9395-96. The district court also rejected Bass Pro’s contention that the addition of the compensatory and punitive damage remedy in the Civil Rights Act of 1991 rendered the Teamsters framework unavailable to the Commission for claims under §706. ROA.9399-9400. The court observed that if this were correct, individuals who had been subjected to pattern-or-practice discrimination would be placed “in a worse position than those who are discriminated against in a series of isolated incidents”—a result the court characterized as “‘impossible to believe’ Congress intended.” ROA.9399-9400 (emphasis in original).

The court next held that the Commission’s use of the Teamsters framework would not conflict with the Seventh Amendment’s reexamination clause. ROA.9402. The court recognized “the tension between ensuring manageability and respecting the Seventh Amendment” but concluded that neither issue “make[s] it categorically impossible to apply the Teamsters framework to a §706 action,” and that other courts have reached the same conclusion. ROA.9403.

The district court also rejected Bass Pro’s assertion that the Commission failed to satisfy its conciliation obligation. ROA.9411. As to whether the Commission could bring a §706 pattern-or-practice action on behalf of unidentified class members, the court recognized that in General Telephone the Commission had sought relief under §706 for a class of female employees, “some of whom were unquestionably identifiable, but others of whom appear to have been unnamed.” ROA.9411-14 & 9414n.20 (citations omitted). The court concluded that “allowing the Commission to bring suit on behalf of individuals not identified during the investigation is consistent with the notion, seemingly implicit in General Telephone, that Congress wanted the Commission to have all the same rights as private litigants when it brings suit pursuant to §706.” ROA.9414. Under Franks, private litigants may bring §706 actions “to vindicate rights of unnamed class members.” ROA.9414. “The EEOC,” the court said, “should be able to do likewise.” ROA.9414.

This interlocutory appeal followed.

Summary of the Argument

The district court correctly held that the Commission may use the Teamsters framework to prove a pattern or practice of discrimination in a lawsuit brought under §706 of Title VII. Contrary to Bass Pro’s argument, a pattern or practice of discrimination is a violation of §703, and §706 simply provides the vehicle by which the Commission may enforce Title VII’s substantive prohibitions. Bass Pro’s appeal is based upon the premise that the phrase “pattern or practice” necessarily refers to a cause of action grounded only in §707, but this premise is a faulty one. Teamsters offers a method of proving discrimination in cases involving a class of potential victims. Nothing in Title VII limits the methods of proof available to the Commission in a §706 action; to the contrary, the statutory language, legislative history, and overwhelming court precedent all support the Commission’s use of the Teamsters framework to prove discrimination against a class of individuals under §706.

Bass Pro is wrong that the 1991 amendments to Title VII, which authorized compensatory and punitive damages in a suit under §706, rescinded the Commission’s well-established authority to use the Teamsters method of proof. Congress enacted the 1991 amendments fully aware that the Supreme Court had already endorsed the Commission’s use of the Teamsters framework under §706. By leaving the Commission’s enforcement authority under §706 unchanged, Congress necessarily intended to leave intact the Supreme Court’s interpretation of that provision.

Bass Pro’s remaining arguments for precluding the Commission from relying on the Teamsters framework under §706 are equally flawed. The existence of §707 and its explicit reference to a pattern or practice of discrimination does not mean that the Commission is limited to “individual” claims under §706, and this Court has never understood it to do so. Important differences between §706 and §707 render the latter provision not superfluous.

Likewise, Bass Pro is wrong that use of the Teamsters framework under §706 would deprive it of its due process rights. The district court is currently working with the parties to develop a case management plan, so arguments about such a future plan are premature. Courts routinely devise case management plans for large class cases, and this Court has indicated that they are well-equipped to do so.

Bass Pro’s Seventh Amendment argument misstates the effect of bifurcating proceedings pursuant to Teamsters. Under Teamsters, the Commission must prove that discrimination was an employer’s standard operating procedure. Only if the Commission satisfies this burden of proof does the case proceed to a second stage, where the employer must disprove individual entitlement to relief. The second jury does not reconsider the first jury’s finding of widespread discrimination; it decides only whether specific individuals were discriminated against as part of the already-established pattern or practice.

Bass Pro also errs in arguing that the Commission did not satisfy its pre-suit requirements. By not challenging the Commission’s claim of pattern-or-practice discrimination under §707, Bass Pro seems to concede that the steps the Commission took at the administrative stage were sufficient to pursue litigation under the pattern-or-practice framework. If this Court agrees with the Commission that the Commission may use the Teamsters framework under §706, any questions about the administrative process would become moot. If the Court nevertheless decides to reach the issue, statutory language and judicial precedent compel the conclusion that the Commission satisfied its obligation under Title VII to investigate the charge against Bass Pro and attempt to resolve the charge informally through conciliation.

Argument

I. The Commission may rely on the Teamsters proof framework when it brings suit under §706 of Title VII.

The critical issue in this case is whether the Commission may use the Teamsters burden-shifting framework to prove an alleged pattern or practice of discrimination when it has brought suit under §706. In other words, this case is about the availability of a particular “method of proof” for establishing a claim of disparate treatment. Bass Pro’s brief to this Court is grounded in the notion that this case is about something altogether different: according to Bass Pro, “pattern or practice” is an independent cause of action that does not exist under §706, but only under §707. Appellant’s Brief (“AtBr.”) 21. The authority Bass Pro cites, however, undermines its core argument. While it is true that this Court has held that there is no free-standing pattern or practice “cause of action” under §706, this Court has also reaffirmed the point the Commission has been making in this case— that Teamsters “is really ‘merely another method by which disparate treatment can be shown’” in a suit “brought either by the government or as a class action.” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001), abrogated on other grounds, Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101 (2002).

The Teamsters framework allows the Commission to prove a pattern or practice of discrimination in class cases. The Commission’s initial burden is to “demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.” Teamsters, 431 U.S. at 360. “If an employer fails to rebut the inference that arises from the Government’s prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy.” Id. at 361. If the government seeks individual relief for the class members, “a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.” Id. In this second, relief stage, “[t]he Government need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination.” Id. at 362. “[T]he burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id. (citing Franks, 424 U.S. at 773 n.32.).

The substantive violation that the Commission seeks to remedy through the Teamsters framework is that found in §703. Section 706 authorizes the Commission to file suit to remedy that §703 violation. Nothing in the plain language of §706 limits the ability of the Commission to use the Teamsters method of proof, and legislative history makes apparent that when Congress gave the Commission its §706 litigating authority in 1972, it fully intended that the Commission would be able to pursue claims alleging a pattern or practice of discrimination.

Perhaps most critical is the fact that the Supreme Court in General Telephone granted certiorari to consider an issue that parallels the issue in this case. In General Telephone, as here, the defendant challenged the Commission’s ability to use the Teamsters proof method under §706. The General Telephone Court rejected the defendant’s argument that the Commission needed Rule 23 certification to proceed under the Teamsters framework, holding that §706 provides ample authority for the Commission to proceed. Bass Pro downplays the import of General Telephone, AtBr.23 n.8, 44, but General Telephone cannot be so easily dismissed. Congress has not altered the Commission’s §706 litigation authority since General Telephone, and since that seminal case every court of appeals to address the issue has recognized that the Commission may use the Teamsters proof framework when it brings suit under §706.

A. The statute, legislative history, and legal precedent support the Commission’s use of the Teamsters framework to prove discrimination against a class of individuals in a case brought under §706.

By its plain terms, §706 broadly confers on the Commission the power to enforce any of Title VII’s statutory prohibitions by filing suit against non-governmental entities. Added to the statute in 1972, §706(a) states: “The Commission is empowered . . . to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 [§§703 or 704] of this title.” 42 U.S.C. §2000e-5(a). Section 706(f)(1), also added in 1972, delineates the Commission’s power to bring “a civil action against any respondent . . . named in the charge.” 42 U.S.C. §2000e-5(f)(1). Section 706 is the provision authorizing the Commission to file suit; the cause of action here is grounded in §703, which makes it unlawful for employers “to fail or refuse to hire any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, . . . or national origin.” 42 U.S.C. § 2000e-2(a)(1).

This broad language is consistent with Congress’ desire, with the 1972 amendments to Title VII, to provide the Commission “‘with effective power to enforce title VII.’” S. Rep. No. 92-415, at 28 (1971). Prior to the amendments, the Commission was limited to investigating and conciliating private complaints of discrimination. The initial Senate Report on the amendments noted that the “failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII.” Id. at 4. The bill enacted by Congress authorizes the Commission to bring suit under §706, enabling it to achieve “the overriding public interest in equal employment opportunity . . . through direct Federal enforcement.” 118 Cong. Rec. 4941 (1972).

Nothing in the language of §706 reveals a Congressional intent to limit the method of proof the Commission may use. Cf. Occidental, 432 U.S. at 366 (§706(f)(1) “imposes no limitation upon the power of the EEOC to file suit in federal court”). Nothing in the legislative history reveals an intent to limit the Commission. The Supreme Court relied on this history in General Telephone, a §706 case. The Court noted that Senators Javits and Williams, the floor managers, stated that the Commission’s authority to initiate litigation would allow it to bring “exactly the same actions that the Department of Justice does under pattern and practice,” and that “[t]here will be no difference between the cases that the Attorney General can bring under section 707 as a ‘pattern and practice’ charge and those [the Commission] will be able to bring.” Gen. Tel., 446 U.S. at 328 (citing 118 Cong. Rec. 4081 (1972)). Senator Javits stated that “[if the Commission] proceeds by suit, then it can proceed by class suit. If it proceeds by class suit, it is in the position of doing exactly what the Department of Justice does in pattern and practice suits.” Id. (citing 118 Cong. Rec. 4081-82).

Nothing in Teamsters suggests such a limitation either. To be sure, Teamsters was originally brought by the Attorney General under §707 of Title VII, 42 U.S.C. §2000e-6, at the time the only statutory provision authorizing a government lawsuit against an employer.[3] In analyzing how to allocate the burdens of proof and what inferences could be drawn from such proof, however, the Teamsters Court relied upon Franks, a private class action brought under §706. As Teamsters put it, once the Franks plaintiff class proved a policy of employment discrimination, “there were reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference.” Teamsters, 431 U.S. at 359.

The Supreme Court did not base its holdings in Franks and Teamsters on the two statutory provisions authorizing suit, §706 and §707, but instead on general principles about how to prove a claim. As Teamsters explained, the idea that establishing a discriminatory pattern or practice “creates a rebuttable presumption in favor of individual relief” is “consistent with the manner in which presumptions are created generally.” Teamsters, 431 U.S. at 359 n.45. “Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party’s superior access to the proof.” Id. Moreover, Teamsters emphasized that it and Franks were simply applying “the general principle” set out in McDonnell Douglas, 411 U.S. at 802, that “any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Teamsters, 431 U.S. at 358.[4]

Any residual question about the Commission’s ability to use the pattern-or-practice framework under §706 was put to rest by the Supreme Court in General Telephone. In that case—a Commission action brought on behalf of a class of individuals under §706—the Commission sought to use the Teamsters framework when it moved in district court “‘for an order bifurcating the issue of class liability from the issue of individual damages.’” Gen. Tel., 446 U.S. at 322. The district court held the Commission could proceed, the Ninth Circuit affirmed, and the Supreme Court granted certiorari to decide whether the Commission must be certified as a class representative when it proceeds under §706. Id. at 320-23.

The Supreme Court held the Commission need not seek Rule 23 certification: “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.” Id. at 324; see also EEOC v. Waffle House, 534 U.S. 279, 288 (2002) (same). The Supreme Court knew that this authority meant that the Commission could invoke the Teamsters framework because the Court explicitly noted that the Commission had sought to prove its case using that framework: “[h]ere

. . . EEOC moved to try initially the issue of liability, not to avoid proving individual claims, but merely to postpone such proof.” Gen. Tel., 446 U.S. at 333. And the Commission, still proceeding under §706, went on to try the case using the Teamsters framework after remand. See EEOC v. Gen. Tel. Co. of the Nw., 885 F.2d 575, 577, 584 (9th Cir. 1989) (reversing district court’s finding that “EEOC had failed to prove that GenTel engaged in a company-wide pattern or practice of intentional discrimination”).

After General Telephone, several courts of appeals recognized that the Commission 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 Commission’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. Co., 743 F.2d 739, 743-44 (10th Cir. 1984) (holding that, after General Telephone, the Commission could seek class-wide relief under §706).

Most recently, in Cintas, the Sixth Circuit held that the Commission may “pursue a claim under the Teamsters pattern-or-practice framework, pursuant to its authority vested in §706.” Cintas, 699 F.3d at 896 (highlighting that “[t]he Teamsters framework . . . is simply a different standard of proof.”). In the thirty-five-plus years since the Supreme Court decided Teamsters and General Telephone, no court of appeals has held to the contrary.

Although this Court has not yet had occasion to rule on the issue, it has reviewed, without criticism, the Commission’s use of the Teamsters framework to prove a claim brought under §706. In EEOC v. Olson’s Dairy Queens, Inc., 989 F.2d 165, 167-69 (5th Cir. 1993), this Court cited Teamsters and held that the Commission was required to establish “that a pattern of intentional discrimination existed in Olson’s hiring of black applicants. That is, the EEOC must show that racially discriminatory hiring was Olson’s regular, rather than unusual, practice.” See also EEOC v. Olson’s Dairy Queens, Inc., 803 F. Supp. 1215, 1216 (S.D. Tex. 1991) (noting that the Commission had brought the suit “pursuant to section 706(f)” of Title VII). This Court observed that a showing of statistical evidence could suffice on its own to meet the Commission’s initial burden. Olson’s, 989 F.2d at 167-69. This Court ultimately determined that the Commission had established Olson’s was liable for the pattern-or-practice discrimination, and remanded the case “to proceed with the damages stage,” citing Teamsters. Id. at 169.

District courts also regularly acknowledge the Commission’s ability to utilize the Teamsters pattern-or-practice framework in actions under §706. See, e.g., EEOC v. PMT Corp., No. 14-599, Order at 3-8 (D. Minn. Aug. 24, 2015) (observing that “[w]hether the EEOC proceeds under its authority in §706 or §707, however, does not restrict the EEOC’s ability to assert a pattern-or-practice claim” and permitting the Commission to “pursue a §706 pattern-or-practice claim under the Teamsters framework”); David v. Signal Int’l LLC, 37 F. Supp. 3d 814, 818-21 (E.D. La. 2013) (adopting reasoning in Cintas in permitting the Commission to challenge pattern-or-practice discrimination under §706 by using the Teamsters framework); EEOC v. Pitre, Inc., 908 F. Supp. 2d 1165,1171-75 (D.N.M. 2012) (same). See also ROA 9394-95 (district court order, citing additional cases).

Bass Pro urges this Court to reject this uniform line of case law on the ground that General Telephone was decided before Congress amended Title VII in 1991 to authorize damage awards under §706. AtBr.44. Although Bass Pro would have this Court use the 1991 Act as an aid to interpreting §706, Congress last modified §706(f)(1) in 1972 and left it unchanged when it amended the statute in 1991. This indicates Congress’ intent to leave intact General Telephone’s interpretation of that provision. See 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 amendments 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). Additionally, to characterize the 1991 Act as limiting methods of proof previously available in a §706 case is also contrary to that statute’s stated purpose to provide “additional remedies . . . needed to deter . . . intentional discrimination in the workplace.” Civil Rights Act of 1991, Pub. L. No. 102-166, §2(1), 105 Stat. 1071 (emphasis added).

Bass Pro asserts that permitting the Commission to use the Teamsters framework here “fundamentally changes the allocation of remedies authorized by Congress.” AtBr.24. However, Bass Pro’s argument is based on the mistaken assumption that Congress was unaware that the Commission could invoke the Teamsters framework in a §706 case. Indeed, Bass Pro proffers no explanation for why Congress would have intended to make the remedies the Commission might seek more limited than those a private party might seek. Bass Pro chastises the district court for “infer[ring]” that Congress intended to make damages available to the Commission in a pattern or practice case under §706, and claims Congress “explicitly chose” not to do so. AtBr.27. But Congress did not exclude the Commission from the damages now available in suits brought under §706, see 42 U.S.C. §1981a(a)(1), and the Supreme Court’s decision in Waffle House confirms that additional damages did not alter the long-held understanding of the Commission’s authority under §706.

B. The existence of §707 does not preclude the Commission from using the Teamsters framework to prove a pattern or practice of discrimination under §706.

Bass Pro argues that the existence of §707 and its explicit reference to a pattern of practice of discrimination means that the Commission cannot pursue anything more than “individual claims” under §706. AtBr.5-6. The dichotomy between the provisions that Bass Pro advances has no support in the statute or case law.

This Court has never understood §706 as limited to “individual” claims. Even before General Telephone, this Court recognized that the Commission may seek relief for a class when it brings suit under §706—though it required the Commission to seek Rule 23 certification when it did so. See EEOC v. D.H. Holmes Co., 556 F.2d 787, 792 (5th Cir. 1977) (“The initial issue is whether this is a class action. We conclude that it is.”). General Telephone overruled the Rule 23 certification requirement for the Commission, and that decision emphasized the breadth of the Commission’s authority when it brings suit under §706.

Bass Pro invokes United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 842-43 (5th Cir. 1975), as supporting its argument that “[a] pattern or practice action by the EEOC is brought pursuant to §707 and not §706.” AtBr.22-23, 33-34. However, Allegheny-Ludlum does not address whether the Commission may use the pattern-or-practice proof framework under §706. Instead, the decision addresses in relevant part whether potential victims have a right to intervene in the government’s Title VII pattern-or-practice suit—a right conferred under §706 but not §707. Allegheny-Ludlum, 517 F.2d at 841-45. The only other authority Bass Pro cites in support of its “dichotomy” argument is a 1977 brief filed by an Assistant Attorney General. AtBr.6. It is hard to understand how a single, thirty-eight-year-old legal brief which primarily focused on the respective enforcement roles of the Attorney General and the Commission, see United States v. N.C., No.77-164, 1977 WL 203655, at *22-*27, comprises meaningful authority. In any event, nothing in the statutory language, legislative history, or case law supports the idea that there is a “dichotomy” that precludes the Commission from using the Teamsters framework in a §706 case.

Bass Pro argues that interpreting §706 to permit use of the pattern-or-practice framework renders §707 superfluous, and so is an impermissible interpretation. AtBr.28-34. Bass Pro does not explain what language in §706 precludes use of that framework—and it cannot, for use of the framework is consistent with the Commission’s litigating authority under that provision. But even shifting the focus to a different Title VII provision cannot aid Bass Pro’s argument, for there are several meaningful distinctions between §706 and §707. Many of these distinctions allow the government to act more expeditiously to halt a pattern or practice of discrimination when it sues under §707. See Allegheny-Ludlum, 517 F.2d at 843 (observing “it was unquestionably the design of Congress in the enactment of §707 to provide the government with a swift and effective weapon to vindicate the broad public interest in eliminating unlawful practices”).

First, unlike §706, §707 “permits the EEOC to initiate suit without first receiving a charge.” Cintas, 699 F.3d at 896. Bass Pro claims—without citation to any decision—that the Commission must receive a charge of discrimination before proceeding under §707. AtBr.9,29-33. However, as Cintas reiterated, it is well-settled that no charge is required under §707. See Gen. Tel., 446 U.S. at 327-28; Allegheny-Ludlum, 517 F.2d at 843 (“Section 707 does not make it mandatory that anyone file a charge against the employer or follow administrative timetables before the suit may be brought.”); see also EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996) (“Congress also transferred to EEOC authority previously vested in the Attorney General under §707 of Title VII to institute ‘pattern or practice’ lawsuits on its own initiative—i.e., without certain of the prerequisites to a civil action under [§706].”); United States v. Fresno Unified Sch. Dist., 592 F.2d 1088, 1096 n.5 (9th Cir. 1979) (section 707 “contains no requirement that anyone file a charge”); EEOC v. Cont’l Oil Co., 548 F.2d 884, 890 (10th Cir. 1977) (noting that §707 “affords a broad based remedy without regard to individual charges or complaints”).[5]

Second, while Congress conferred upon private parties the right to intervene in Commission actions under §706, no such right exists under §707. Allegheny-Ludlum, 517 F.2d at 842-44. The restricted ability to intervene furthers the government’s ability to act quickly to resolve discrimination through a §707 suit. Id. 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).

Another important difference between the two sections is that, unlike §706, §707 authorizes the Commission to bring actions challenging “a pattern or practice of resistance to the full enjoyment of rights” secured by the statute regardless of whether the acts of resistance independently constitute violations of §703 or §704. 42 U.S.C. § 2000e-6(a). Thus, for example, §707 “interference” actions have been brought against non-employer entities such as the Ku Klux Klan. See, e.g., United States v. Original Knights of the Ku Klux Klan, 250 F. Supp. 330, 335-36 (E.D. La. 1965); see also United States v. Bd. of Educ. for Sch. Dist. of Phila., 911 F.2d 882, 891-92 (3d Cir. 1990) (recognizing §707 cause of action for “prophylactic relief” from a policy that “endangered” a public school teacher’s Title VII rights, even where “the Commonwealth was not [the teacher’s] ‘employer’” and it “cannot be liable to [her] for religious discrimination under 42 U.S.C. § 2000e-2(a).”).

In sum, there are significant differences between the two provisions that preclude deeming §707 superfluous.

C. The Commission’s use of the Teamsters framework to prove a pattern or practice of discrimination under §706 does not deprive Bass Pro of due process or violate the Seventh Amendment.

Bass Pro argues that, because of the size of this case, the Teamsters approach will upset its due process right to present a meaningful defense at the relief stage. Bass Pro is incorrect. The Teamsters framework is intended to permit a party to establish that an employer has engaged in pattern-or-practice discrimination. By its very nature, pattern-or-practice discrimination involves unlawful employment practices that may impact large numbers of applicants or employees, and there is no authority holding that Title VII does not allow redress of discrimination because it is perpetrated on a grand scale. Moreover, Teamsters is not a relic of some earlier time: in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011), the Supreme Court reaffirmed that Teamsters “established a procedure for trying pattern-or-practice cases that gives effect to the[] statutory requirements.”

Courts routinely devise case management plans for large class cases. See, e.g., Exxon Shipping Co. v. Baker, 554 U.S. 471, 479-80 (2008) (litigation involving class of 32,000 plaintiffs seeking punitive damages; jury trial divided into separate liability, punitive damages, and compensatory damages phases). In this case, the district court is still working with the parties to devise a case management plan, so arguments about such a future plan are premature. Cf. Allison v. Citgo Petroleum Corp.,151 F.3d 402, 408 (5th Cir. 1998) (recognizing deference due to district court because of court’s “inherent power to manage and control pending litigation”). In any event, the fact that devising such a case management plan may prove more difficult in cases where discriminatory practices have affected more victims cannot justify eliminating the Teamsters proof framework.

Bass Pro is wrong that Allison supports its argument. In Allison, this Court held that the district court had not abused its discretion in denying class certification under Rule 23 because “[t]he predominance of individual-specific issues relating to the plaintiffs’ claims for compensatory and punitive damages . . . detract[ed] from the superiority of the class action device in resolving these claims.” 151 F.3d at 419; see also id. at 414 (predomination requirement of Rule 23 “serves to protect the rights of class members regarding their monetary interests”). The Commission need not seek Rule 23 certification, see General Telephone, 446 U.S. at 324, and to apply Rule 23 considerations to a Commission case would subvert the General Telephone holding. In sum, Allison did not hold that manageability problems rendered the Teamsters approach off-limits for Commission litigation.

The increased potential for settlement if a plaintiff establishes liability in the first stage of the Teamsters framework also is not grounds for precluding large cases alleging pattern-or-practice discrimination. See AtBr.46-48. As a general matter, “public policy strongly encourages the settlement of cases.” Ho v. Martin Marietta Corp., 845 F.2d 545, 547 n.2 (5th Cir. 1988). But more to the point, an employer who loses at the liability stage has been proved to have engaged in systemic discrimination, and its decision to settle at that point would “reflect the relative merits of the parties’ claims.” Allison, 151 F.3d at 422 n.17. The fact that employers’ cost/benefit assessment of continued litigation frequently leads them to settle should not preclude the Commission from using the Teamsters framework.[6]

That Teamsters shifts the burden of proof to Bass Pro at the relief stage does not implicate Bass Pro’s due process rights. By the relief stage, the Commission has already met its burden of proving that Bass Pro engaged in widespread discrimination. See Teamsters, 431 U.S. at 336, 342 n.24 (plaintiff must prove that “discrimination was the company’s standard operating procedure[—]the regular rather than the unusual practice”). What the relief stage offers an employer is the opportunity to show that a “challenged decision, made when the discriminatory practice was in force, was not made in pursuit of that practice but was, instead, made because the claimant was unqualified.” Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 966 (11th Cir. 2008). In other words, Bass Pro may disprove individual entitlement to relief. See Wal-Mart, 131 S. Ct. at 2561 (describing relief-stage burden). Shifting the burden at this point is not “arbitrary,” as Bass Pro contends, AtBr.50; rather, it reflects the fact that Bass Pro would already be a proven discriminator. Teamsters, 431 U.S. at 361-62.

The Commission does not dispute its obligation to name individual victims for whom it seeks compensatory damages at the relief stage, and an appropriate case management plan would ensure Bass Pro’s ability to challenge the validity of each claim for relief. Bass Pro misleadingly cites the Commission’s ongoing litigation in the Cintas case for the proposition that the Commission refuses ever to identify individual victims. AtBr.38. In the Cintas case, however, the district court has developed a case management plan suitable for that case, and the Commission has complied with the court’s orders. EEOC v. Cintas Corp., No.2:04-cv-40132, Order, at 4-5 (E.D. Mich. Aug. 20, 2015) (noting that the Commission produced a list with “the names of approximately 800 individuals”). The portions of Commission briefs in Cintas that Bass Pro cites discuss not whether the Commission will identify the individuals for whom it is seeking compensatory damages, but address issue surrounding the individuals for whom it is seeking back pay. The briefs discuss how to assess the outside limit of the employer’s potential back pay liability, which the briefs refer to as a statistical “shortfall” of roughly 125 individuals, and possible ways to allocate that outer limit amongst all applicants—again, in that case, approximately 800 individuals. EEOC Response Brief, EEOC v. Cintas Corp., No.2:04-cv-40132, at 2 (E.D. Mich. Mar. 17, 2014).

Defeating its own argument, Bass Pro asserts that “manageability and due process concerns would not disappear even if the EEOC were to limit its monetary claims under §706 to back-pay relief.” AtBr.51. But Bass Pro seems to recognize, as it must, that the Commission has always been able to seek back pay in a pattern-or-practice action under §707. AtBr.43 (quoting Allison, 151 F.3d at 410); see also Teamsters, 431 U.S. at 361; 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 Title VII pattern and practice suit”); cf. Wal-Mart, 131 S. Ct. at 2561 (§706 case). If back pay does not pose due process concerns under §707, there is no logical reason why it would pose due process concerns under §706.

Bass Pro’s Seventh Amendment claim is equally flawed. Bass Pro argues that there is a necessary overlap of issues between the two stages of Teamsters, but Bass Pro is incorrect. A jury at the relief stage would not decide issues that another jury had already resolved at the liability stage. Allison, 151 F.3d at 421. The liability stage jury decides only whether an employer has engaged in a widespread pattern or practice of discrimination, while the relief stage jury determines the appropriate remedy. See Teamsters, 431 U.S. at 361-62. There may be some factual overlap between the issues tried at the liability and relief stages, but this is not “necessarily” so with respect to any particular individual. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1185 (11th Cir. 2010) (findings are binding only if they are “necessarily” part of jury verdict). Accordingly, the Teamsters framework does not implicate the Seventh Amendment. Id.; see also Mullen v. Treasure Chest Casino, LLC, 186 F.3d 260, 268 (5th Cir. 1999) (“The Seventh Amendment does not prohibit bifurcation of trials as long as ‘the judge [does] not divide issues between separate trials in such a way that the same issue is reexamined by different juries.’”).

Bass Pro seems to focus its Seventh Amendment arguments on punitive damages, which it asserts must be assessed in the relief stage. AtBr.53. Bass Pro relies on language in Allison where this Court indicated that punitive damages would be conducted at the relief stage because “recovery of punitive damages must necessarily turn on the recovery of compensatory damages.” Allison, 151 F.3d at 417-18. The Commission submits that this language was dicta and, in any event, no longer represents the law of this Circuit. This Court squarely held in Abner v. Kansas City Southern Railroad Co., 513 F.3d 154, 160 (5th Cir. 2008), that “a punitive damages award under Title VII . . . need not be accompanied by compensatory damages.” Delinked from compensatory damages, punitive damages may be tried at whatever stage the district court deems most consistent with Title VII and the Seventh Amendment.

In any event, as the Commission has highlighted, there is yet no case management plan, so Bass Pro’s arguments are only speculative about a possible overlap. The district court concluded that the Commission may use the Teamsters framework under §706 in a manner consistent with the Seventh Amendment, see ROA.9402-03, and the Commission submits that the district court should be allowed to develop a case management plan that accords with the Seventh Amendment.

II. The Commission satisfied its obligation under Title VII to investigate the charge against Bass Pro and attempt to resolve the charge informally through conciliation.

Bass Pro seems to acknowledge that the steps the Commission took at the administrative stage were sufficient to support a “pattern or practice claim.” AtBr.19. Accordingly, if this Court were to rule that the Commission may use the pattern-or-practice framework when it brings suit under §706, it would moot Bass Pro’s arguments about the administrative prerequisites. Only if this Court rules against the Commission and the Commission later seeks to prove individualized, McDonnell Douglas-type claims under §706 would Bass Pro’s argument be relevant. The Commission submits that it is premature to address this issue now. However, in the event the Court does wish to rule on the issue at this stage, the Commission addresses Bass Pro’s arguments.

In Title VII, Congress provided “an integrated, multistep enforcement procedure culminating in the EEOC’s authority to bring a civil action in a federal court.” Occidental, 432 U.S. at 359. This integrated procedure begins with the filing of a charge of discrimination, followed by notice to the employer of the charge, the Commission’s investigation of the charge and determination as to whether there is reasonable cause to believe it is true, and then, if such reasonable cause is found, the Commission’s attempt to resolve the charge informally through conciliation. Id. at 359-60; 42 U.S.C. §2000e-5(b) (setting out administrative process).

Conciliation is “a key component of the statutory scheme.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015). It “is ‘the preferred means of achieving the objectives of Title VII,’ and is one of the ‘most essential functions’ of the EEOC,” EEOC v. Agro Distrib., LLC, 555 F.3d 462, 468 (5th Cir. 2009) (citations omitted), abrogated on other grounds by Mach Mining, 135 S. Ct. at 1655-56. Moreover, conciliation is the only prerequisite to a Commission suit contained within §706(f)(1). See 42 U.S.C. §2000e-5(f)(1) (“If . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action.”).

In the district court, Bass Pro moved for summary judgment in part on the ground that the Commission had failed to expend sufficient efforts on conciliation. In its opening brief on appeal, Bass Pro only hints at a conciliation argument. AtBr.56, 58, 60. By failing to develop this argument, the Commission submits Bass Pro has waived this issue on appeal. See, e.g., Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (“Failure adequately to brief an issue on appeal constitutes waiver of that argument.”).

Bass Pro presumably has backed away from its conciliation argument because the Supreme Court’s recent decision in Mach Mining forecloses such an argument. In Mach Mining, like this case, the Commission alleged a pattern or practice of hiring discrimination and brought suit under §706 and §707. See EEOC v. Mach Mining, LLC, No.3:11-cv-879, Complaint, at 2 (S.D. Ill Sept. 27, 2011). The employer complained conciliation was insufficient and the Supreme Court granted certiorari to consider “whether and to what extent such an attempt to conciliate is subject to judicial consideration.” Mach Mining, 135 S. Ct. at 1651.

Mach Mining held that judicial review of the Commission’s conciliation efforts is “barebones,” limited to verifying (1) that the Commission has informed the employer about the specific allegation, including “what the employer has done and which employees (or what class of employees) have suffered as a result,” and (2) that the Commission has “tr[ied] to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” Id. at 1655-56. “Such limited review,” the Court held, “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process.” Id. at 1653.

The Court rejected the expansive review advocated by the employer in Mach Mining—what the Court characterized as a “deep dive into the conciliation process.” Id.; see also id. (“[T]he appropriate scope of review enforces the statute’s requirements as just described. . . but goes no further.”). In particular, as Bass Pro did here, Mach Mining sought to require the Commission to “[a]ttempt conciliation with each defendant regarding every claim and claimant” and “identify the particular individuals for whom it seeks such relief.” Brief for Petitioner, Mach Mining, LLC v. EEOC, U.S. Supreme Court No.13-1019, 2014 WL 4380090, at 37, 39, 40 (filed Sept. 4, 2014). The Court rejected Mach Mining’s invitation; the Court held that the substantial discretion Title VII vests in the Commission was “at odds with Mach Mining’s bargaining checklist” approach, concluding that “[f]or a court to assess any of those choices—as Mach Mining urges and many courts have done—is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far.” Mach Mining, 135 S. Ct. at 1654-55 (citation omitted).

Conciliation in this case satisfied Mach Mining. In its Letter of Determination, the Commission informed Bass Pro of the class of alleged victims. ROA.6123-27. The Commission discussed the matter with Bass Pro over eleven months and provided Bass Pro with ample opportunity to resolve the charge informally. See supra, at 4-5. On appeal, Bass Pro makes no argument that the Commission’s conciliation efforts failed to satisfy Mach Mining. See AtBr.56-66. Accordingly, the district court’s ruling on conciliation should be affirmed.

In its brief to this Court, Bass Pro shifts its focus to challenging the Commission’s investigation. In essence, Bass Pro is arguing that even though the Commission need not identify or focus on particular individuals at the conciliation stage, it must do so earlier in the administrative process—namely, at the investigatory stage. Divorcing conciliation from its precursor administrative steps makes little sense, however, and is at odds with the “integrated, multistep enforcement procedure” that courts describe. See Occidental, 432 U.S. at 359. Indeed, the whole point of the investigation is to determine if there is a basis for the charge and the “reasonable cause . . . determination issued as a result of the investigation is designed to notify the employer of the EEOC’s findings and to provide a basis for later conciliation proceedings.” EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (citing EEOC v. Chesapeake & Ohio Ry., 577 F.2d 229 (4th Cir. 1978)), abrogated on other grounds by Mach Mining, 135 S. Ct. at 1655-56. See also Marshall v. Sun Oil Co. (Del.), 605 F.2d 1331, 1335, 1336 n.2 (5th Cir. 1979) (recognizing that the Commission “must of course investigate the allegations of terminated employees; otherwise conciliation would not be meaningful”), abrogated on other grounds by Mach Mining, 135 S. Ct. at 1655-56. Indeed, the central case on which Bass Pro relies—EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012)—highlighted that the investigation serves to get the parties to conciliation. See id. at 676 (“Absent an investigation and reasonable cause determination apprising the employer of the charges lodged against it, the employer has no meaningful opportunity to conciliate.”).[7]

In any event, nothing in the statute dictates how the Commission should conduct its investigations, such as by focusing on particular individuals, rather than on a class. Section 706 requires the Commission to “make an investigation of [a] charge” to determine whether there is “reasonable cause” to believe that the employer violated the statute as claimed. 42 U.S.C. §2000e-5(b). If the Commission finds such reasonable cause, the Commission must attempt to resolve the matter through “informal methods” such as conciliation. Id. If the Commission ultimately files suit, the suit is tried de novo. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (the Commission “cannot adjudicate claims or impose administrative sanctions. . . . [R]esponsibility for enforcement of Title VII is vested with federal courts.”). Any shortcomings in the investigation thus do not affect court proceedings.

In this case, the Commission’s investigation uncovered statistical and anecdotal evidence that Bass Pro has engaged in nationwide discrimination against African-American and Hispanic applicants and employees. It is undisputed that the Commission identified the nature of the alleged discrimination and class of potential victims to Bass Pro. ROA.6123-27. The Commission also identified, during the investigation, approximately 100 specific individuals who allegedly were victims of the discrimination. See supra, at 4-5.[8] The factual premise of Bass Pro’s core argument thus lacks record support. See AtBr.60 (asserting that the Commission did not investigate “a single aggrieved individual”).

To require that the Commission do more, or that it structure its investigation differently, would be to impose an extra-statutory requirement that the Supreme Court recently condemned. See Mach Mining, 135 S. Ct. at 1654-55 (courts should not impose extra procedural requirements).

This Court also has condemned prescribing how the Commission must investigate a charge. In Newsome v. EEOC, this Court stated that Title VII “does not prescribe the manner” by which the Commission investigates, and “the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.” 301 F.3d 227, 231 (5th Cir. 2002) (per curiam).

Moreover, it is well-settled that courts will not review the sufficiency of the Commission’s investigation because that 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.” Keco, 748 F.2d at 1100; see also Keco, 748 F.2d at 1100 (recognizing “courts have precluded use of [a sufficiency] objection as a basis for dismissing a charge of discrimination made by the EEOC”) (citing EEOC v. St. Anne’s Hosp., 664 F.2d 128 (7th Cir. 1981); EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1976); EEOC v. Chicago Miniature Lamp Works, 526 F. Supp. 974 (N.D. Ill. 1981)). “The courts in these cases rejected this objection because the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.” Id.; see also EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005) (holding Commission investigation “not judicially reviewable”).

Bass Pro has argued that the investigation issue it raises is not a question of sufficiency, but of whether an investigation happened “at all.” See Bass Pro petition for interlocutory appeal, at 16. The Commission submits that this is really a matter of semantics. Plainly an investigation occurred: the Commission identified the class of potential victims and assembled other evidence in its investigation. See supra, at 4-5. Bass Pro admits on appeal that the Commission “investigated Bass Pro’s employment practices, including its hiring processes, for over three years,” and that such investigation involved review of thousands of pages of documents, at least five on-site visits, and numerous witness interviews. AtBr.2. Thus the issue is not whether an investigation occurred, but how the Commission conducted it—an issue that goes to sufficiency.

Furthermore, as noted above, Bass Pro seems to concede the adequacy of the investigation the Commission undertook here for a lawsuit that subsequently proceeds under the pattern-or-practice proof framework. Even without this concession, ample precedent confirms as much. In Sun Oil, for example, this Court held that the government may proceed with a discrimination suit under the Teamsters framework without “first determin[ing] the exact extent of each [individual] violation, [and] then separately document[ing] all . . . of the individual cases for the discriminating employer.” [9] 605 F.2d at 1334; see also Sun Oil, 605 F.2d at 1334 (rejecting individualized-investigation requirement as an “inflexible requirement[] unsupported by the statute).” 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.

Additionally, the Supreme Court’s decision in General Telephone—a §706 case subsequently litigated under the Teamsters framework—indicates no individualized-investigation 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 individually 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.

Every other court of appeals to consider the issue in the context of a case later proved under the pattern-or-practice framework has reached the same conclusion. See, e.g., Cintas, 699 F.3d at 904-05 (Commission’s investigation and conciliation on a class-wide basis was adequate in §706 pattern-or-practice case); Am. Nat’l Bank, 652 F.2d at 1185-86 (same). Even the Eighth Circuit’s decision in CRST, the only appellate decision on which Bass Pro relies, deemed it “[n]otab[le]” that “the EEOC did not allege . . . ‘a pattern or practice’ of . . . discrimination, and expressed “no view” on whether its holding would apply to pattern-or-practice cases. CRST, 679 F.3d at 676 n.13 (emphasis in original).

As discussed above, Bass Pro seems to confine its administrative prerequisites argument to something that may or may not occur later in this litigation—namely, a scenario in which the Commission seeks to prove some individualized discrimination under McDonnell Douglas if this Court were to hold that the Commission cannot use Teamsters in a case brought under §706. Assuming that hypothetical scenario does occur, Bass Pro’s argument regarding the investigation is contrary not only to the statute, but also to circuit authority addressing the issue.

The courts of appeals have held that the Commission need not name specific class members at the administrative stage as long as it identifies the parameters of the class. See, e.g., Walner, 91 F.3d at 968 (noting “EEOC’s ability to challenge discrimination affecting unidentified members of a known class”); EEOC v. United Parcel Serv., 860 F.2d 372, 374 (10th Cir. 1988) (Commission 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 the Commission 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)); St. Louis-S.F. Ry., 743 F.2d at743-44 (holding in §706 case that the Commission could pursue classwide relief although it had identified only the charging party); cf. Caterpillar, 409 F.3d at 832-33 (court would not review the Commission’s investigation to determine whether it investigated as to the class).

Bass Pro argues that CRST held otherwise, but that case invoked the “general rule” the Commission cites here—that “‘the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.’” CRST, 679 F.3d at 674 (quoting Keco, 748 F.2d at 1100). The CRST court departed from that general rule only because the Commission had not conveyed to the employer at the administrative stage the parameters of the class for which it subsequently was seeking relief. See CRST, 679 F.3d at 676. Here Bass Pro does not dispute that the Commission outlined the scope of the class for which it seeks relief. Even under CRST, then, Bass Pro’s argument fails. And any effort to read CRST more broadly (i.e. as authorizing extensive scrutiny into the administrative process) poses another problem for Bass Pro, for it would place CRST firmly at odds with the subsequent ruling of the Supreme Court in Mach Mining.[10]

Bass Pro seems to make one additional argument in support of its contention that the Commission must identify individuals: it highlights the general discrimination prohibition in §703, which prohibits hiring discrimination against “any individual.” AtBr.57. Aside from the fact that the investigation requirement exists in §706(b), not §703, it is hard to understand how §703 might require individualized investigations in a case brought under §706 but not §707. Section 703 is the basis for any discrimination claim, including a discrimination claim the government brings under §707. It therefore provides no basis for defining the contours of an investigation in the way Bass Pro seeks.

Conclusion

For the foregoing reasons, the Commission requests that this Court affirm the district court’s order.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN Associate General Counsel

s/ James M. Tucker

JAMES M. TUCKER

GAIL S. COLEMAN

Attorneys

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

[1] In this brief the Commission refers to defendants Bass Pro Shops Outdoor World, LLC, and Tracker Marine Retail, LLC, collectively as “Bass Pro.”

[2] The district court referred to Cintas as the “Serrano” decision. See ROA.9385.

[3] In 1972, Congress also transferred to the Commission the Attorney General’s authority under §707. The Attorney General’s enforcement authority had been limited to actions alleging pattern-or-practice discrimination. With the transfer, the Commission is also authorized under §707 of Title VII to bring a civil action “[w]henever [the Commission] has reasonable cause to believe that any person or persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by” Title VII. 42 U.S.C. §2000e-6(a).

[4] Teamsters and Franks took the central lesson of McDonnell Douglas—the seminal case on proving discrimination against an individual through indirect evidence—and applied it to the systemic discrimination context to create appropriate burdens of proof. Other proof models may be appropriate when the Commission brings suit under §706. For example, actions alleging disparate impact, sex harassment, or failure to make religious accommodations have different proof requirements, and cases with direct evidence of intentional discrimination do not use the McDonnell Douglas model. See, e.g., Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002) (McDonnell Douglas “does not apply in every employment discrimination case”).

[5] Bass Pro’s assertion that §707 requires the Commission to follow the §706 procedures in “all” pattern-or-practice cases, AtBr.29-30, implicitly attacks the validity of this long and authoritative line of precedent. In any event, it is at odds with the statutory language. Section 707(e) does refer to using the procedures of §706, but only where a charge alleging a pattern or practice of discrimination was filed. See 42 U.S.C. §2000e-6(e) (“[T]he Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination . . . [a]ll such actions shall be conducted in accordance with the procedures set forth in [§706].”). Section 707 does not require a charge, however, which the courts cited above long have recognized. Amici curiae supporting Bass Pro repeat this error, further alleging that the Commission has informed other courts that cases filed under §§706 or 707 “share the same prerequisites.” Brief of amici curiae Retail Litigation Center, Inc., and Chamber of Commerce of the United States, at 14 & n.2. Amici fail to mention, however, that the cited passage from a Commission appellate brief is addressing actions where a charge was filed, not actions under §707(a) where no charge was filed.

[6] Bass Pro cites Castano v. American Tobacco Co., 84 F.3d 734, 737-38, 746-48 (5th Cir. 1996), but 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.” None of these factors (including Rule 23 issues) are present here.

[7] CRST faulted the Commission’s conciliation, but that case is no longer good law, for that court engaged in a “deep dive” review of conciliation that Mach Mining now prohibits.

[8] The district court misunderstood a Commission attorney to say it had not identified any individuals, when the attorney was addressing the fact that the Commission had not identified all class members. ROA.9706, 7706-07. The record is clear that the Commission did identify specific individuals at the investigatory stage.

[9] Sun Oil involved a claim under the Age Discrimination in Employment Act, which contains a conciliation requirement similar to Title VII. See 29 U.S.C. §626(d)(2).

[10] Bass Pro also identified several district court decisions, see AtBr.58 & n.23, but they do not support for Bass Pro’s position. In one, EEOC v. Original Honeybaked Ham Co., 918 F. Supp. 2d 1171, 1178-80 (D. Colo. 2013), the court actually rejected the Eighth Circuit’s approach in CRST—and, therefore, Bass Pro’s identical argument here—and permitted the Commission to litigate where it did not individually identify all potential class members prior to suit. Bass Pro’s other cited decisions are no more helpful to it, as several reviewed the administrative process in a manner subsequently prohibited by Mach Mining. See EEOC v. Bloomberg L.P., 967 F. Supp. 2d 802, 813-16 (S.D.N.Y. 2013) (dismissing suit for failing to satisfy requirements subsequently rejected in Mach Mining); EEOC v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, 1038 (D. Ariz. 2013) (examining specific details of the Commission’s conciliation proposals that the Commission could not seek damages for individual class members who had not been specifically identified in conciliation). Others involved the question of whether particular individuals were outside the scope of the class the Commission had defined—a question not at issue here. See EEOC v. Target Corp., No. 02-C-146, 2007 WL 1461298, at *3 (E.D. Wis. May 16, 2007) (summary judgment as to one individual appropriate because he was outside the class of possible victims); EEOC v. Dillard’s Inc., No. 08-CV-1780, 2011 WL 2784516, Order, at *8 (S.D. Cal. July 14, 2011) (notice provided during conciliation focused on single location and was insufficient to inform employer that class of potential victims was nationwide). Finally, Ariz. ex rel. Goddard & EEOC v. Geo Group, Inc., No. 10-1995, 2012 WL 8667598, at *10-*11 (D. Ariz. Apr. 17, 2012), is on appeal to the Ninth Circuit (No.13-16292).