No

TABLE OF CONTENTS

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

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

Argument

1. En banc review of the §706 issue is not warranted............................ 2

2. En banc review of the complaint issue is not warranted..................... 9

Conclusion...................................................................................................... 10

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

CASES

Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007) .............................................. 9

Camreta v. Greene, 131 S.Ct. 2020 (2011) ...................................................... 6

Catlett v. Mo. Hwy. & Transp. Comm’n, 828 F.2d 1260 (8th Cir. 1987) ........ 10

EEOC v. Am. Nat’l Bank, 652 F.2d 1176 (4th Cir. 1981) ................................ 6

EEOC v. Dinuba Med. Clinic, 222 F.3d 580 (9^th Cir. 2000) ............................. 8

EEOC v. Gen. Tel. Co., 885 F.2d 575 (9th Cir. 1989) ..................................... 6

EEOC v. Int’l Profit Assocs., 2007 WL 844555 (N.D. Ill. 2007)........................ 4

EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir. 1980)............. 6, 7

EEOC v. St. Louis-S.F. Ry., 743 F.2d 739 (10th Cir. 1984) ............................. 7

EEOC v. Turtle Creek Mansion, 1995 WL 478833 (N.D. Tex. 1995),

aff’d 82 F.3d 414 (5^th Cir. 1996) ................................................................... 6

EEOC v. Waffle House, 534 U.S. 279 (2002).................................................... 8

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) ...................................... 2

Gen. Tel. Co. v. EEOC, 446 U.S. 318 (1980) ........................................... 1, 4, 5

In re Bemis Co., 279 F.3d 419 (7^th Cir. 2002) .................................................. 8

Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977)......................................... 2

Jefferson v. Ingersoll Int'l, 195 F.3d 894 (7th Cir. 1999) .................................. 7

Lorillard v. Pons, 434 U.S. 575 (1978) ............................................................ 8

McDonnell Douglas v. Green, 411 U.S. 792 (1973) ......................................... 2

U.S. v. Allegheny-Ludlum Indus., 517 F.2d 826 (5th Cir. 1975) ................... 4, 5

U.S. v. City of Yonkers, 592 F. Supp. 570 (S.D.N.Y. 1984) ............................. 4

U.S. v. Fresno Unified Sch. Dist., 592 F.2d 1088 (9th Cir. 1979) ..................... 4

U.S. v. O’Brien, 130 S.Ct. 2169 (2010) ............................................................ 8

STATUTES, RULES and LEGISLATIVE HISTORY

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

42 U.S.C. §2000e-5 (section 706)................................................... passim

42 U.S.C. §2000e-5(a) ........................................................................... 3

42 U.S.C. §2000e-5(f)(1)..................................................................... 3, 4

42 U.S.C. §2000e-6 (section 707)................................................... passim

42 U.S.C. §2000e-6(b) .......................................................................... 4

42 U.S.C. §1981a ........................................................................................... 8

F.R.A.P. 35(b)(1).............................................................................................. 2

6 Cir. I.O.P. 35(a) ........................................................................................... 2

Pub. L. No. 102-166, 105 Stat. 1071 ............................................................... 8

S. Rep. No. 92-415 (1971) ............................................................................... 3

118 Cong. Rec. 4081-82 (1972) ....................................................................... 5

INTRODUCTION

The primary issue Cintas raises in its petition is whether EEOC may use the bifurcated-trial proof framework when it brings suit pursuant to §706 of Title VII. The panel concluded that nothing in the language of §706 limits EEOC’s ability to invoke whatever proof framework best fits the “facts of the case.” Op. at 10-11. The statutory language, legislative history, and controlling precedent all fully support the panel’s holding. Cintas argues that the panel erred, but in so doing Cintas omits discussion of critical authority. In particular, Cintas argues that the statute’s “plain language” is critical to resolution of the issue, Pet. at 2, 4, but nowhere does Cintas quote or accurately characterize the plain language of §706. Cintas argues that the panel “ignor[ed] Congressional intent,” Pet. at 5, but Cintas fails to cite to key legislative history. Cintas contends that no appellate court until the panel had confronted the issue, Pet. at 2, but it ignores or downplays relevant appellate decisions. More striking is Cintas’ decision neither to discuss nor even to cite to the seminal Supreme Court ruling addressing the breadth of EEOC’s authority under §706 -- General Telephone Co. v. EEOC, 446 U.S. 318 (1980).

Cintas states en banc review is needed for a second reason: it argues that EEOC’s complaint “could not possibly have put any party on notice” that EEOC sought to prove Cintas engaged in a pattern or practice of discrimination. Pet. at 13-14. The panel examined the record, however, and forcefully rejected Cintas’ asserted lack of notice. Op. at 16 (“we are deeply suspicious” of Cintas’ argument that “it had no idea that the EEOC intended to proceed on a theory of … pattern-or-practice discrimination”); op. at 17 n.3 (“it strains credulity that Cintas was blind-sided” by EEOC’s intended proof framework).

Because the panel decision is correct, because Cintas has cited no conflicting court of appeals decision, and because of the factual context of this case, en banc review is not warranted. See 6 Cir. I.O.P. 35(a) (en banc review is “extraordinary procedure” intended to bring to Court’s attention “a precedent-setting error”); F.R.A.P. 35(b)(1) (conflict with authoritative decisions of other courts of appeals may make question “of exceptional importance”).

ARGUMENT

1. En banc review of the §706 issue is not warranted.

Central to the panel’s holding that when EEOC brings suit under §706 it can invoke the bifurcated-trial proof framework was its explication of that framework. Op. at 6-11 (citing Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977)). The panel explained that Teamsters was based upon the general principle of McDonnell Douglas v. Green, 411 U.S. 792 (1973), 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.’” Op. at 11 (quoting Teamsters, 431 U.S. at 358).

Cintas’ petition does not focus on the development of the McDonnell Douglas-Franks-Teamsters proof frameworks, but instead seeks to focus on Title VII itself. As the panel held, however, nothing in the statutory language of §706 reveals an intent to limit EEOC to a particular method of proof. Section 706(f)(1) broadly authorizes EEOC to bring a civil action. 42 U.S.C. §2000e-5(f)(1) (EEOC “may bring a civil action against any respondent … named in the charge”); see also 42 U.S.C. §2000e-5(a) (EEOC “is empowered ... to prevent any person from engaging in any unlawful employment practice”). This broad language is consistent with Congress’ wish to address in the 1972 Amendments what it deemed “a major flaw in the operation of Title VII,” the lack of litigation authority for EEOC. S. Rep. No. 92-415, at 4 (1971). Congress therefore amended Title VII to provide EEOC “‘with effective power to enforce title VII.’” Id. at 28.

Cintas suggests the §706 language is limiting, but Cintas mischaracterizes the statutory text. Cintas’ petition states that §706 only “authorizes the EEOC to sue on behalf of a ‘person or persons aggrieved’ by an unlawful employment practice.” Pet. at 5. Cintas then argues that EEOC must use the McDonnell Douglas framework when it brings suit “on behalf of” individuals under §706. Pet. at 5-6. In fact, §706 contains no language stating that an EEOC suit is “on behalf” of individuals. Nor does Cintas accurately characterize the reference to “person or persons aggrieved” in §706(f)(1), for that language refers to the right of such individuals to intervene in an EEOC action, not to EEOC’s authority to bring suit. 42 U.S.C. § 2000e-5(f)(1). Indeed, the right of intervention indicates Congress understood EEOC does not simply act on individuals’ behalf when it brings suit under §706, but “it acts also to vindicate the public interest in preventing employment discrimination.” Gen Tel., 446 U.S. at 326.

Cintas argues that the panel decision “renders §707 superfluous and meaningless.” Pet. at 6-7. Cintas is incorrect, for there are important differences between §§706 and 707. First, as the panel observed, unlike §706, “§707 permits the EEOC to initiate suit without first receiving a charge.” Op. at 12-13 (citing EEOC v. Int'l Profit Assocs., 2007 WL 844555 (N.D. Ill. 2007)). Cintas criticizes the panel for this observation, and for its reliance on only “a single … district court case.” Pet. at 7. The panel’s decision to cite to one case does not undermine what is, in fact, a non-controversial observation. The Supreme Court, courts of appeals, and district courts all recognize that §707 does not require a charge. See Gen. Tel., 446 U.S. at 327-28; U.S. v. Allegheny-Ludlum Indus., 517 F.2d 826, 843 (5th Cir. 1975); U.S. v. Fresno Unified Sch. Dist., 592 F.2d 1088, 1096 n.5 (9th Cir. 1979); U.S. v. City of Yonkers, 592 F. Supp. 570, 586-87 (S.D.N.Y. 1984).

The panel’s understanding of §707 is consistent with Congress’ intent “to provide the government with a swift and effective weapon to vindicate the broad public interest in eliminating unlawful practices.” Allegheny, 517 F.2d at 843. To that end, §707 differs from §706 in other important ways and so is not superfluous. First, §707(b) allows the Government to request that its case be heard in the first instance by a three judge panel that shall “cause the case to be in every way expedited.” 42 U.S.C. §2000e-6(b). Second, whereas 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. Allegheny, 517 F.2d at 842-44.

The history of the 1972 Amendments also confirms that Congress intended that EEOC could use the pattern-or-practice framework in a §706 action. The bill’s floor managers stated that §706 would allow EEOC to bring “exactly the same actions that the Department of Justice does under pattern and practice.” 118 Cong. Rec. 4081 (1972); see id. at 4082 (if EEOC “proceeds by suit [under §706], then it can proceed by class suit. If it proceeds by class suit, it is … doing exactly what the Department of Justice does in pattern and practice suits”) (quoted in Gen. Tel., 446 U.S. at 328). Cintas’ petition never addresses this explicit history.

Cintas also does not cite to General Telephone, the critical Supreme Court case. In General Telephone, as here, the defendant challenged EEOC’s ability to use the Teamsters framework, arguing that EEOC could not use that framework because it had brought suit under §706. 446 U.S. at 322. The defendant argued that EEOC must be certified as a class representative to use Teamsters in §706 cases, but the Supreme Court rejected that argument: “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. The Court plainly knew that this authority meant that EEOC could invoke the Teamsters framework because the Court explicitly noted that EEOC had sought to prove its case using this model: “Here ... EEOC moved to try initially the issue of liability, not to avoid proving individual claims, but merely to postpone such proof.” Id. at 333. And EEOC, still proceeding under §706, went on to try the case using the Teamsters framework after remand. See EEOC v. Gen. Tel. Co., 885 F.2d 575, 577, 584 (9^th Cir. 1989).

Cintas asserts that “[n]o Circuit Court had confronted the issue” until the panel decision. Pet. at 2. Even if it were true that no court of appeals had confronted the issue, any lack of appellate rulings would weigh against en banc review, rather than in favor.[1] In any event, Cintas’ assertion is incorrect: after the Supreme Court ruling, several appellate courts (in addition to the Ninth Circuit after remand in General Telephone) recognized that EEOC may invoke the Teamsters framework in a §706 action. EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444, 1446-49 (6th Cir. 1980); EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1184, 1187-88 (4th Cir. 1981) (noting EEOC’s “broad enforcement powers” under §706, and holding EEOC proved a “pattern or practice of discrimination” under Teamsters); EEOC v. Turtle Creek Mansion, 1995 WL 478833, *1, *10 (N.D. Tex. 1995) (§706 case in which “applicable model of proof” is set forth in Teamsters), aff’d 82 F.3d 414 (5^th Cir. 1996).[2]

The panel concluded that “Monarch stands as at least one example” of the Sixth Circuit applying Teamsters in a §706 case. Op. at 12. Cintas argues that this Court should disregard Monarch because the opinion’s language “was dicta.” Pet. at 9 n.8. EEOC submits that the Monarch ruling was not dicta. Monarch was a discrimination case EEOC brought under §706 and sought to prove in bifurcated proceedings. 737 F.2d at 1446-47. The district court instead conducted a single trial, and granted relief only for two charging parties, not to a class of women. Id. On appeal, EEOC challenged the refusal to allow it to prove its claim under Teamsters. This Court held that the district court had erred by failing to conduct a bifurcated trial, and it ordered the case remanded, with instructions to conduct a trial using the Teamsters paradigm. Id. at 1449, 1453. This Court also explained why it believed Teamsters should apply in §706 EEOC suits: “Although ... the Supreme Court … was discussing the proper procedure … to follow in a [§]707 pattern-or-practice suit, it adopted this procedural framework from Franks which dealt with class actions under [§]706.” Id. at 1449 n.3. Because Monarch had challenged whether the Teamsters model was appropriate in a §706 EEOC action, it was necessary to resolve that issue and this Court’s ruling therefore was not dicta.

Cintas downplays Monarch’s import because it predated the 1991 Civil Rights Act, which authorized damages and jury trials for §706 actions, and argues that the Act thus shows Congress’ “clear intention” that Teamsters be unavailable to EEOC under §706. Pet. at 6 (citing 42 U.S.C. §1981a), 9 n.8. The 1991 Act left §706(f) unchanged, however, and so did not upend Monarch, or General Telephone. Indeed, the Supreme Court and courts of appeals have since reaffirmed General Telephone. See EEOC v. Waffle House, 534 U.S. 279, 288 (2002) (“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.”)[3]; In re Bemis Co., 279 F.3d 419, 421-22 (7^th 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 (9^th Cir. 2000) (same).[4]

2. En banc review of the complaint issue is not warranted.

Cintas argues that EEOC’s First Amended Complaint “could not possibly have put any party on notice” that EEOC sought to prove “Cintas engaged in a ‘pattern or practice’ of discrimination.” Pet. at 13-14. The record in this case belies Cintas’ assertion. EEOC filed the complaint on August 20, 2009. The very next day, August 21, 2009, Cintas filed a brief referencing “the pattern or practice claim that is being pursued by … EEOC.” R.653 at 1; see also id. at 2 (“EEOC has … raised a claim that Cintas engaged in a pattern or practice of discriminatory hiring”). It is therefore difficult to comprehend Cintas’ claim that it lacked notice. See also op. at 16, 17 n.3. Cintas also attacks the panel for “ignor[ing]” Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007), but Cintas never cited Twombly to the panel, and did not argue that EEOC pled insufficient facts. Op. at 17 (Cintas “has not challenged the specificity of the EEOC’s factual allegations of discrimination”). Nor has Cintas addressed the panel’s point that “the appropriate remedy” for a Twombly challenge at this stage of proceedings “would be to grant the EEOC leave to amend the complaint to provide a more detailed factual basis.” Id.

Cintas argues en banc review is needed because EEOC now may “assert a massive claim involving more than 1300 individuals.” Pet. at 13-14. Cintas asserts that if EEOC were to use Teamsters, Cintas’ financial exposure would increase dramatically. Pet. at 1, 12 (referring to “potentially massive” lawsuit with “compensatory and punitive damage claims asserted on behalf of more than 1000 applicants”). Cintas’ contention is profoundly misleading, and has no basis in the record. Cintas made 427 hires in total during the relevant time period and, of those hires, EEOC’s expert calculated that Cintas hired “94 fewer women than would have been expected.” A-642. Another, less conservative availability measure would lead to a shortfall figure of around 125 women. A-634-42. The shortfall, not the total number of female applicants Cintas rejected, governs the measure of relief for which Cintas may be liable, and EEOC has never argued otherwise. Catlett v. Mo. Hwy. & Transp. Comm’n, 828 F.2d 1260, 1267 (8th Cir. 1987).[5]

CONCLUSION

This Court should deny the petition for rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ s/ Jennifer S. Goldstein

General Counsel JENNIFER S. GOLDSTEIN

Attorney

CAROLYN L. WHEELER EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

CERTIFICATE OF COMPLIANCE

I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and is ten pages, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

s/ Jennifer S. Goldstein

CERTIFICATE OF SERVICE

I hereby certify that on December 14, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system.

s/ Jennifer S. Goldstein

[1] Cintas cites to two non-final district court decisions, and to one in which the district court judge admittedly was opining on an issue not needed to resolve the case, to argue that the issue is one of exceptional importance. Pet. at 8 & n.7. As noted, the Federal Rules highlight appellate decisions, not district court decisions, presumably because “‘[a] decision of a federal district court judge is not binding precedent.’” Camreta v. Greene, 131 S.Ct. 2020, 2033 n.7 (2011).

[2] See also EEOC v. St. Louis-S.F. Ry., 743 F.2d 739, 743-44 (10th Cir. 1984) (General Telephone clarified that Congress intended to give EEOC “broad enforcement powers” under §706; EEOC therefore may seek class-wide relief when it brings suit under §706); Jefferson v. Ingersoll Int'l, 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”).

[3] Waffle House’s observation is correct, for Congress’ decision to leave §706(f) untouched indicates that it intended no alteration to the General Telephone holding. See U.S. v. O’Brien, 130 S.Ct. 2169, 2178 (2010) (Congress does not enact substantive changes sub silentio); Lorillard v. Pons, 434 U.S. 575, 580 (1978) (Congress adopts judicial interpretation of a statutory section when it re-enacts a statute without changing the section).

[4] Cintas’ argument also stands in tension with one of the 1991 Act’s key purposes, providing the “additional remedies … needed to deter … intentional discrimination in the workplace.” Pub. L. No. 102-166, 105 Stat. 1071 §2(1). Nowhere does Congress indicate that these additional remedies would be unavailable to EEOC when it challenges a broad pattern or practice of discrimination.

[5] Cintas’ assertion about the class-size implications of using Teamsters versus McDonnell Douglas is also misleading because the proof method EEOC uses should not alter an employer’s potential financial liability. To be sure, there may be practical implications to using one proof method or another. This case posed particular challenges when, after its Teamsters ruling, the district court refused to extend discovery and require that Cintas provide job applications with identifying information. Thousands of applications had a “REDACTED” sticker placed over the applicant’s last name, address, and phone number. R.759 at 4-5. That EEOC elected to limit its claim to 13 individuals is a reflection of these discovery rulings.