Table of Contents

Certificate of Interested Persons and Corporate Disclosure

Statement.......................................................................................... C-1

Table of Citations.................................................................................. iii

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

Argument................................................................................................. 2

I........ A reasonable fact-finder could conclude that Doherty’s

2013 agreement was intended to and did interfere with

Title VII rights............................................................................. 3

A...... Charge-filing and cooperation with the EEOC and

FEPAs are “rights secured by” Title VII........................ 3

B. ... A reasonable person would interpret the 2013 agreement

to preclude charge-filing................................................... 6

C. ... The circumstances surrounding Doherty’s 2013 agreement indicate that the agreement was intended to, and did, interfere with Title VII rights.................. 13

II...... Doherty’s decision to revise the 2013 agreement in the midst

of this litigation does not render the EEOC’s claim moot.. 18

III..... The EEOC satisfied all preconditions to this suit under

§ 707(a)........................................................................................ 20

IV..... Section 707(a) provides a cause of action for a pattern or

practice of resistance to the full exercise of Title VII rights....................................................................................................... 27

V...... A reasonable fact-finder could conclude that Doherty acted

with the requisite intent........................................................... 31

Conclusion............................................................................................. 35

Certificate of Compliance

Certificate of Service

Table of Citations

Cases Page(s)

Beery v. Quest Diagnostics, Inc.,

953 F. Supp. 2d 531 (D.N.J. 2013)................................... 10, 11

Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53 (2006)................................................................................................................... 4.....................................................................................................................

EEOC v. Assoc. Dry Goods,

449 U.S. 590 (1981)................................................................... 25

EEOC v. Asplundh Tree Expert Co.,

340 F.3d 1256 (11th Cir. 2003)............................................... 24

EEOC v. Astra U.S.A., Inc.,

94 F.3d 738 (1st Cir. 1996)........................................................ 5

EEOC v. Cosmair, Inc.,

821 F.2d 1085 (5th Cir. 1987)................................................... 5

EEOC v. CVS Pharmacy, Inc.,

809 F.3d 335 (7th Cir. 2015)................................................... 21

EEOC v. Sundance Rehab. Corp.,

466 F.3d 490 (6th Cir. 2006)..................................................... 5

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002)..................................................................... 4

Gen. Tel. Co. of the NW, Inc. v. EEOC,

446 U.S. 318 (1980)................................................................... 30

Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991)....................................................................... 5

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

431 U.S. 324 (1977)................................................................... 28

Lorillard v. Pons,

434 U.S. 575 (1978)................................................................... 30

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015).......................................................... 4, 24

Parilla v. IAP Worldwide Servs., VI, Inc.,

368 F.3d 269 (3d Cir. 2004)..................................................... 10

Pettway v. Am. Cast Iron Pipe Co.,

411 F.2d 998 (5th Cir. 1969)..................................................... 5

Powell v. Thomas,

643 F.3d 1300 (11th Cir. 2011)............................................... 23

Reed v. Winn Dixie, Inc.,

677 F. App’x 607 (11th Cir. 2017)............................................ 4

Rollins v. TechSouth, Inc.,

833 F.2d 1525 (11th Cir. 1987)............................................... 16

Serrano v. Cintas Corp.,

699 F.3d 884 (6th Cir. 2012)............................................. 24, 29

Sheely v. MRI Radiology Network, P.A.,

505 F.3d 1173 (11th Cir. 2007)............................................... 19

United States v. Allegheny-Ludlum Indus., Inc.,

517 F.2d 826 (5th Cir. 1975)................................ 20, 21, 23, 24

United States v. Jacksonville Terminal,

451 F.2d 418 (5th Cir. 1972)................................................... 31

United States v. Masonry Contractors Ass’n of Memphis,

497 F.2d 871 (6th Cir. 1974)................................................... 24

United States v. Pirela Pirela,

809 F.3d 1195 (11th Cir. 2015)............................................... 22

Constitution, Statutes and Public Laws

U.S. Const., art. VI, cl. 2....................................................................... 6

42 U.S.C. § 1981a(a)(1)....................................................................... 31

42 U.S.C. § 1981a(c)............................................................................ 31

42 U.S.C. § 2000e-2............................................................................. 21

42 U.S.C. § 2000e-3............................................................................. 21

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

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

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

42 U.S.C. § 2000e-5(f)(1)..................................................................... 21

42 U.S.C. § 2000e-5(f)(2)..................................................................... 21

42 U.S.C. § 2000e-6(a).................................................................... 3, 13

42 U.S.C. § 2000e-6(e).................................................................. 20, 22

42 U.S.C. § 2000e-8(e).................................................................. 25, 26

N.J.S.A. 10:5-13...................................................................................... 6

N.Y. Exec. Law 297 ............................................................................... 6

Regulations

29 C.F.R. § 1601.7(a)............................................................................. 4

29 C.F.R. § 1601.10.............................................................................. 17

29 C.F.R. § 1601.27.............................................................................. 21

Introduction

Employees’ and applicants’ rights to file charges of discrimination and cooperate with the EEOC and FEPAs are essential to Title VII’s enforcement procedure. In its opening brief, the EEOC explained that summary judgment on its § 707(a) enforcement claim was improper because a reasonable person could interpret Doherty’s 2013 arbitration agreement (“2013 agreement”) to preclude charge-filing and/or cooperation. The record evidence includes the agreement itself, which required that all claims, “including but not limited to any claims of employment discrimination, harassment, and/or retaliation under Title VII,” be “submitted to and determined exclusively by binding arbitration.” Appendix volume (“Vol.”) I, District Court Docket No. (“R.”) 259-6 at 4 (emphasis added). It also includes witness testimony that Doherty informed individuals that the 2013 agreement required all claims to be submitted exclusively to Doherty. Vol.I, R.284-1 at 1-2. In granting summary judgment to Doherty, the EEOC argued, the district court overlooked this key evidence and failed to view it in the light most favorable to the EEOC as the nonmoving party.

The EEOC also explained that the district court properly rejected Doherty’s alternative arguments. Doherty’s revision of the 2013 agreement in reaction to this litigation did not moot the suit. According to settled circuit precedent, the EEOC satisfied all necessary presuit requirements under § 707(a), which provides the government with a broad cause of action that is not limited to challenging “unlawful employment practices.” And, finally, the EEOC adduced sufficient evidence to support a finding that Doherty acted with the requisite intent.

Doherty largely fails to respond directly to the EEOC’s arguments or to reconcile the district court’s decision with controlling summary judgment standards. Instead, Doherty presents a one-sided and incomplete version of the facts and governing law. Doherty also frequently mischaracterizes the EEOC’s arguments, and, confusingly, asserts disputes where none exist. Quite simply, Doherty has failed to identify any grounds for affirming summary judgment.

Argument

To establish a claim under § 707(a), the EEOC must: (1) identify a right secured by Title VII; (2) establish that the defendant engaged in conduct that did and was intended to resist the full exercise or enjoyment of that right; and (3) establish that the defendant’s conduct was not individualized or isolated, but instead constituted a pattern or practice of unlawful conduct. See 42 U.S.C. § 2000e-6(a). Here, the parties did not dispute whether Doherty’s use of the 2013 agreement constituted a “pattern or practice.” See Appellant’s Brief (“AtBr.”) 21. While Doherty does contest whether charge-filing is a Title VII right and whether its conduct was intended to and did interfere with Title VII rights, its arguments are without merit.

I. A reasonable fact-finder could conclude that Doherty’s 2013 agreement was intended to and did interfere with Title VII rights.

A. Charge-filing and cooperation with the EEOC and FEPAs are “rights secured by” Title VII.

Title VII makes it unlawful for an employer to “discriminate against any of his employees or applicants for employment … because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added.) See also 42 U.S.C. § 2000e-5(b), (e) (laying out the charge-filing process and the EEOC’s handling of charges).[1] The corresponding implementing regulations provide, without restriction, that “[a] charge that any person has engaged in or is engaging in an unlawful employment practice within the meaning of title VII … may be made by or on behalf of any person claiming to be aggrieved.” 29 C.F.R. § 1601.7(a).

Against this statutory and regulatory language, Doherty maintains that “the express language” of Title VII does not guarantee charge-filing rights. Appellee’s Brief (“AeBr.”) 20-21. While it is literally true that the words “guarantee” or “right to file a charge” do not appear in 42 U.S.C. §§ 2000e-3 or -5, Doherty’s argument is highly disingenuous. Certainly, the Supreme Court disagrees, as it has repeatedly recognized the importance of individuals’ charge-filing and cooperation rights as part of Title VII’s integrated enforcement scheme. AtBr.23-24 (citing Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1649-50 (2015); Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67 (2006); EEOC v. Waffle House, Inc., 534 U.S. 279, 296 n.11 (2002)); see also Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969) (same). For these reasons, the Court held that individuals retain their charge-filing rights notwithstanding mandatory arbitration. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27-28 (1991).

This is also why, in EEOC v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir. 1987), the Fifth Circuit characterized Title VII charge-filing as an individual’s “right” and held that waivers of charge-filing rights are void as against public policy. See AtBr.24. Doherty attempts to distinguish Cosmair (AeBr.20-21) because it involved an ADEA retaliation claim, but it offers neither reasoning nor legal support for why the subject-matter distinction should make a difference as to charge-filing rights. Cosmair itself drew no such distinction. 821 F.2d at 1089-90 (recognizing broadly that “enforcing a waiver of the right to file a charge could impede EEOC enforcement of the civil rights laws”). Nor, apparently, have courts addressing Title VII and the Americans with Disabilities Act, which follow Cosmair. See, e.g., EEOC v. Sundance Rehab. Corp., 466 F.3d 490, 499 (6th Cir. 2006); EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 744-45 & n.5 (1st Cir. 1996).

Doherty further argues that state legislatures have acted “in direct contravention of EEOC’s assertions” by providing the right to proceed directly to court without first filing a charge. AeBr.21. State legislatures are, of course, free to make state law, as New York and New Jersey did. See N.Y. Exec. Law 297; N.J.S.A. 10:5-13. But, as Doherty apparently misapprehends, they cannot legislate or override federal law, including Title VII. U.S. Const., art. VI, cl. 2.

B. A reasonable person would interpret the 2013 agreement to preclude charge-filing.

As the district court recognized, the central question here is whether Doherty’s 2013 arbitration agreement “can be interpreted to deprive applicants or employees of Defendant of their right to file a charge with the EEOC and FEPAs.” Vol.I, R.336 at 5. Both the EEOC and the district court also explained how interpreting the 2013 agreement further entailed determining “the intent a reasonable person would apprehend in considering the parties’ behavior.” AtBr.25-28; Vol.I, R.336 at 5. The parties appear to agree that the 2013 agreement should be interpreted according to the plain, ordinary meaning of the terms used, looking at the agreement as a whole. See AtBr.25; AeBr.30, 32-33.

Where the parties diverge is on that plain meaning. Doherty simply declares, based on various unremarkable contract interpretation standards, that the 2013 agreement was unambiguous. It also claims there was no evidence the parties to that agreement “intended to extend [its parameters] to proceedings before the EEOC and FEPAs.”[2] AeBr.30-33. Doherty is incorrect on both counts.

Based on the 2013 agreement’s plain meaning, a reasonable fact-finder could conclude that a reasonable person would interpret it to preclude charge-filing with the EEOC. See AtBr.29. The 2013 agreement provides that Doherty uses “binding arbitration to resolve any dispute, controversy or claim.” Vol.I, R.259-6 at 4 (emphasis added). This includes “any claims of employment discrimination, harassment, and/or retaliation under Title VII … which would otherwise require or allow resort to any court or other governmental dispute resolution forum.” Id. The agreement’s explicit reference to Title VII is unmistakable, as is its explicit exclusion of NLRA claims. See id. (excluding “claims arising under the National Labor Relations Act ….”). Finally, the great weight of statutory, Supreme Court, and other authority makes clear there can be no genuine dispute over whether the EEOC or a FEPA constitutes a “governmental dispute resolution forum” that “resolves” Title VII charges. AtBr.29-33.

The district court, however, concluded otherwise by selectively parsing out two particular terms. See Vol.I, R.336 at 6-8. It narrowly focused on the phrase “determined exclusively by binding arbitration,” ignoring that the full text of this provision requires that all claims “shall be submitted to and determined exclusively by binding arbitration.” Vol.I, R.259-13 (emphasis added). As the plain terms of this provision prohibit even the submission of a claim to any entity other than an arbitrator, a reasonable person would readily understand it to prohibit charge-filing, regardless of whether the charge ever reached a final “determination.” The court also interpreted the term “resolve” unduly narrowly, misconstruing the question as whether charge-filing or cooperation per se “resolve[s] disputes,” rather than whether the EEOC and the FEPAs are “governmental dispute resolution fora.” See AtBr.29-32.

Doherty asserts its officials understood the 2013 agreement’s use of the phrase “governmental dispute resolution forum” to refer to “a court or other forum that could provide a remedy,” not including the EEOC. AeBr.38. As explained above, however, the proper inquiry here is an objective one: how a reasonable person would interpret those terms. Given the EEOC’s well known and central role in resolving Title VII charges, see AtBr.29-33, a reasonable person could easily interpret Doherty’s reference to a “governmental dispute resolution forum” to include the EEOC (or a FEPA). The 2013 agreement’s explicit carve-out for NLRA claims further reinforces such an interpretation, as a reasonable person could readily compare the agreement’s express references to Title VII and the NLRA and conclude that EEOC and FEPA charges were precluded.

Doherty does not dispute the EEOC’s cited authority on this point, instead shifting the focus of its argument from the term “resolve” to “remedy.” See AeBr.38. Doherty’s attempt to change the subject is unavailing, however, for two reasons: first, the term “remedy” is entirely absent from the relevant parts of the 2013 agreement. See Vol.I, R.259-6 at 4. Second, the district court based its grant of summary judgment on its interpretation of the terms “resolution” and “determined” as referring to “resolving” disputes. Vol.I, R.336 at 6-7.

Doherty presents Parilla v. IAP Worldwide Services, VI, Inc., 368 F.3d 269 (3d Cir. 2004), as an example of a court finding that language requiring arbitration, instead of resolution by an administrative agency, did not preclude charge-filing. AeBr.34-35. As explained previously, the district court’s interpretation of “resolve” in the 2013 agreement superficially resembles the Third Circuit’s reasoning in Parilla. AtBr.35-36. However, the agreement in Parilla did not preclude charge-filing; Parilla is nonbinding authority on this Court; and, perhaps most importantly, Parilla is irreconcilable on this point with the substantial body of Supreme Court and other authority understanding the EEOC’s role in resolving discrimination claims. See AtBr.35-36.

Doherty’s argument based on an out-of-circuit district court decision, Beery v. Quest Diagnostics, Inc., 953 F. Supp. 2d 531 (D.N.J. 2013), fares no better. AeBr.35-36. Beery centered on the interpretation of the term “considered” in an arbitration agreement. 953 F. Supp. 2d at 543-44. Like “remedy,” the term “considered” is absent from Doherty’s 2013 agreement. Vol.I, R.259-6 at 4. And as in Parilla, the agreement in Beery did not state that all claims must be submitted exclusively to arbitration. Beery, 953 F. Supp. 2d at 543-44; Vol.I, R.259-6 at 4.

Furthermore, Beery concluded the agreement did not preclude charge-filing in part because of “[t]he parties’ course of conduct,” which, in the court’s view, suggested the parties understood the agreement not to preclude charge-filing. Beery, 953 F. Supp. 2d at 544. Unlike Doherty, the employer in Beery did not specifically tell individuals that its agreement precluded filing claims anywhere other than with the employer itself.[3] Id. at 543-44; cf. Vol.I, R.259-6 at 4 (Doherty’s 2013 agreement); Vol.I, R.284-1 at 2 (Potoreiko statement). In fact, Beery opined that “[a] claim by a plaintiff that an invalid or unclear contractual provision intimidated her from alerting the EEOC to unlawful employment practices might present a far different situation.” 953 F. Supp. 2d at 544 n.13.

Doherty also cites decisions addressing the enforceability of arbitration agreements that refer to “governmental dispute resolution forums,” or lack explicit notice that charge-filing is not precluded. AeBr.37-38. These are red herrings, as is Doherty’s argument that arbitration of Title VII claims is lawful generally. See AeBr.17-19; see also AeBr.22-23 (mischaracterizing EEOC’s position as requiring arbitration agreements to contain “carve-outs” explicitly referencing individuals’ charge-filing rights). The EEOC has not argued that Title VII claims are not subject to mandatory arbitration or that arbitration agreements must explain charge-filing rights. Moreover, the EEOC has never asked Doherty to abandon mandatory arbitration at any time, including during its initial attempt in 2014 to resolve this matter prior to litigation. See Vol.I, R.259-8 at 1-2.

Rather, the EEOC’s claim is that Doherty crafted and applied its 2013 agreement in such a manner as to unlawfully interfere with individuals’ charge-filing rights, regardless of the arbitrability of their claims.[4] Insofar as the evidence was sufficient to support a finding that a reasonable person would understand this agreement to interfere with charge-filing, summary judgment was inappropriate.

C. The circumstances surrounding Doherty’s 2013 agreement indicate that the agreement was intended to, and did, interfere with Title VII rights.

When Doherty implemented the 2013 agreement, it abandoned both its earlier arbitration agreement’s clear reference to arbitration displacing court actions and the employee handbook provision clearly stating that EEOC charge-filing was not prohibited. See AtBr.38-39. Unlike Doherty’s prior agreement, the 2013 agreement now expressly included Title VII claims, while exempting NLRA claims. Id. at 39. And most critically, the 2013 agreement required all covered claims to be “submitted to and determined exclusively by binding arbitration.” See AtBr.39-40.

The record reflects that Doherty specifically told individuals the 2013 agreement required all claims to be filed only with Doherty itself. AtBr.6, 43-44; Vol.I, R.284-1 at 2. And, in light of the general composition of Doherty’s workforce—most of which, it fairly may be presumed, lacked legal training—it was unlikely that Doherty’s employees and applicants would understand the 2013 agreement not to disturb their charge-filing rights. AtBr.42-43. Given all this evidence, a fact-finder could conclude that a reasonable person would interpret the 2013 agreement to preclude charge-filing, and that this was Doherty’s intent.

While not conceding that the 2013 agreement is ambiguous, Doherty also does not dispute that extrinsic evidence, such as the testimony of its own officials, is relevant to determining Doherty’s intent in adopting the agreement. AeBr.33-34. According to Doherty, if the agreement is ambiguous, a fact-finder could also consider “the circumstances surrounding the agreement.” AeBr.34. The EEOC agrees that extrinsic evidence is relevant here, including witness testimony about Doherty’s statements to its workforce, as well as evidence of the circumstances surrounding Doherty’s drafting and implementation of the 2013 agreement. See AtBr.6, 38-44. As explained previously, the extrinsic evidence, too, would readily permit a factfinder to conclude that Doherty understood and intended the 2013 agreement to preclude charge-filing.

Doherty also challenges the EEOC’s reliance on the company’s pre-2013 employee handbook, accusing the EEOC of misstating the record. AeBr.7-8. In its opening brief the EEOC stated that prior to 2013, Doherty’s employee handbook explicitly advised employees of their right to file charges of discrimination with the EEOC. AtBr.4 (citing Vol.I, R.259-11 at 11-12; Vol.I, R.259-13). As support, the EEOC cited the deposition testimony of Doherty’s proffered 30(b)(6) witness, Kathleen Coughlin, and exhibit 16 to the third volume of Coughlin’s 30(b)(6) deposition. See id. (citing Vol.I, R.259-11 at 11-12 (Coughlin deposition vol.III); Vol.I, R.259-13 (exhibit 16)).

At her deposition, when asked to describe exhibit 16, “Handbook Section Re: Arbitration of Employment Disputes,” Coughlin responded, “I was not sure the last time you asked. I do believe this is from the old handbook prior to my employment … it looks like it would have been from an old handbook.” Vol.I, R.259-11 at 11-12. Coughlin continued that the information in exhibit 16 had not been provided to any Doherty employee or applicant since 2013. Id.

Doherty now attempts to undermine this evidence by pointing to Coughlin’s later, contrary affidavit statement that exhibit 16 is a draft policy from 2015. AeBr.8 (citing Supp.App.Vol.I, R.281 at 23-24). Coughlin’s affidavit contains no explanation for her changed identification of the document. See Supp.App.Vol.I, R.281 at 23-24.

“The law in this circuit is that a party cannot give ‘clear answers to unambiguous questions’ in a deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction. When this occurs, the court may disregard the affidavit as a sham.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (internal citations omitted). Coughlin’s affidavit arguably fits the “sham” description, but, at a minimum, this Court’s precedent requires that Coughlin’s credibility be assessed by a trier of fact, not resolved in Doherty’s favor on summary judgment. See, e.g., id. (“If no inherent inconsistency exists, … any conflict or discrepancy between the two documents can be brought out at trial and considered by the trier of fact.” (internal citations omitted)).

Doherty further asserts that while the 2013 agreement was in effect some Doherty employees and applicants filed charges, and the company has never claimed the 2013 agreement prohibited charge-filing. AeBr.39. But the claimed violation of § 707(a) here is that Doherty used the 2013 agreement to deter charge-filing, not that it attempted to have EEOC charges dismissed based on the agreement, which it could not have done anyway. See 29 C.F.R. § 1601.10 (charges may be withdrawn only by the aggrieved party and with the consent of the Commission). Moreover, the 2013 agreement need not have been totally successful at deterring charge-filing to violate the statute. See AtBr.28.

Finally, Doherty offers several puzzling objections to the EEOC’s reliance on Henry Potoreiko’s testimony.[5] For example, Doherty complains, the EEOC has selectively chosen Potoreiko as the “only” example of a “reasonable” person, ignoring unidentified “other individuals.” AeBr.39. While Potoreiko is one such example, the EEOC also relies on his witness statement of what Doherty officials told him and his colleagues about the 2013 agreement—the content of which Doherty has not disputed. See AeBr.13, 39.

Doherty then asserts (AeBr.13) that Potoreiko did not claim the 2013 agreement prevented him from speaking with the EEOC. This is merely a rehashing of the company’s legal argument on summary judgment: that telling its employees all “claims” had to go through Doherty unambiguously meant they were still free to file charges and communicate with the EEOC. Doherty’s assertion is also inconsistent with Potoreiko’s statement of his own understanding of the agreement, as well as his account of what Doherty told him. Vol.I, R.284-1 at 1-2.

Finally, Doherty faults the EEOC for “ignoring” various irrelevancies about Potoreiko and his employment: that Potoreiko acknowledged Doherty’s 2015 revision of the 2013 agreement, and that he left Doherty’s employ after the 2015 revisions. AeBr.13. However, neither point has any relevance to what Doherty did in 2013. And whether Potoreiko actually had a Title VII claim (AeBr.13) is equally irrelevant to his testimony about what Doherty told its employees and how he understood that message.

II. Doherty’s decision to revise the 2013 agreement in the midst of this litigation does not render the EEOC’s claim moot.

The district court ruled that this case was not rendered moot by Doherty’s 2015 revision of its arbitration agreement. Vol.I, R.333; AtBr.13-15. As explained previously (AtBr.45-52), the court applied this Court’s governing standard from Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007), which asks whether (1) the challenged conduct was isolated or unintentional versus continuing and deliberate; (2) the defendant was motivated to stop the conduct by a genuine change of heart or in anticipation of litigation; and (3) the defendant acknowledged liability. The district court correctly concluded that Doherty failed to satisfy the Sheely standard. See AtBr.49-50. Additionally, the EEOC expressed concern that despite Doherty’s 2015 revision, there was no restriction on Doherty’s ability to reinstate the 2013 agreement, and individuals who interpreted the agreement to prohibit charge-filing were without a remedy. AtBr.51-52.

To this point, Doherty offers no response except to contend that the case is moot because “the alleged harm has been eliminated.” AeBr.54. This is factually incorrect and legally beside the point. Doherty offers no argument—as it cannot—that Sheely does not control the mootness question here. Based on the test in Sheely, this case is not moot.

III. The EEOC satisfied all preconditions to this suit under § 707(a).

Prior to summary judgment, the district court correctly held that the EEOC could bring this resistance action without an underlying discrimination charge, and without first attempting to resolve the matter through charge-based conciliation. Vol.I, R.32 at 2. The statutory language, legislative history, and legal precedent—in particular, United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 843 (5th Cir. 1975)—all support the court’s conclusion. AtBr.52-58.

Doherty and its amicus present a number of contrary arguments, all of which stem from the same fundamental misunderstanding of the relationship between §§ 706 and 707. As explained previously, pattern-or-practice-of-resistance actions under § 707(a) may originate in two ways: either pursuant to a charge of discrimination, or if the EEOC or Attorney General brings such a suit on its own initiative. AtBr.54-55. As 42 U.S.C. § 2000e-6(e) makes crystal-clear, in § 707 suits predicated on a charge, there can be no question that the full panoply of § 706 presuit procedures applies—a point the EEOC has never disputed. But where a § 707 suit is not predicated on a charge—for example, where, as here, it alleges a pattern or practice of resistance to rights secured by Title VII that is not itself discriminatory—§ 706’s presuit procedures are inapposite. Allegheny-Ludlum, 517 F.2d at 843.

With this framework in mind, the errors in Doherty’s and its amicus’s arguments come into sharp focus. For example, Doherty alleges that the EEOC violated its own regulation in bringing this suit without basing it on a filed charge. AeBr.40 (citing 29 C.F.R. § 1601.27); see also amicus brief (“AmBr.”) 16-18. The implementing regulation Doherty cites, 29 C.F.R. § 1601.27, is found under Part 1601, Subpart B: Procedure for the Prevention of Unlawful Employment Practices.[6] It is one in a series of regulations establishing the governing procedures when a charge of discrimination has been filed, mirroring the requirements set out by Congress in §§ 706(f)(1) and (2), 42 U.S.C. §§ 2000e-5(f)(1), (2). Nothing about this regulation applies to this § 707(a) pattern-or-practice-of-resistance case. Allegheny-Ludlum, 517 F.2d at 843. And while Doherty relies on EEOC v. CVS Pharmacy, Inc., 809 F.3d 335 (7th Cir. 2015), AeBr.41-43, that decision directly contravenes Allegheny-Ludlum, which controls in this circuit.

Doherty’s argument (AeBr.39) about § 707(e), 42 U.S.C. § 2000e-6(e), is similarly flawed. As explained previously, in 1972 Congress transferred to the EEOC the Attorney General’s authority to bring pattern-or-practice suits on his own initiative, as reflected in § 707(a). AtBr.54. It makes no sense to understand Congress as simultaneously undermining that very legislative choice by using § 707(e) to tie all EEOC suits to charge-filing. Rather, § 707(e) should be taken at face value, as giving the EEOC “authority to investigate and act on a charge of a pattern or practice of discrimination.” 42 U.S.C. § 2000e-6(e) (emphasis added). See United States v. Pirela Pirela, 809 F.3d 1195, 1201-02 (11th Cir. 2015) (“[N]othing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or absurd conclusion.”) (internal citations omitted). And every ostensibly contrary decision Doherty cites is a § 706 or § 707 discrimination case predicated on a charge. See AeBr.40-41.

Doherty and its amicus next challenge Allegheny-Ludlum itself, but these arguments fare no better. For example, Doherty asserts that Allegheny-Ludlum has been overruled “multiple times” by the Supreme Court, although it cannot identify even one such decision. AeBr.43-44. Doherty also challenges Allegheny-Ludlum’s discussion of § 707(a) as nonbinding dicta. Id. But the Allegheny-Ludlum Court explicitly “emphasize[d] that our disposition of the … intervention question is based primarily on what we find to be the correct construction of § 707 and its legislative history.” Allegheny-Ludlum, 517 F.2d at 844. This is by no means dicta. See, e.g., Powell v. Thomas, 643 F.3d 1300, 1304-05 (11th Cir. 2011) (“[D]icta is defined as those portions of an opinion that are ‘not necessary to deciding the case then before us,’ whereas holding is comprised both of the result of the case and ‘those portions of the opinion necessary to that result by which we are bound.’”) (citation omitted).

Amicus misleadingly asserts that Allegheny-Ludlum “expressly announced that it was not deciding whether EEOC must conciliate in § 707 cases.” AmBr.20. Amicus omits that Allegheny-Ludlum made this announcement only in the context of charge-based suits where the EEOC “seeks the assistance of the courts in order to enforce the mandates of Title VII on behalf of specific aggrieved parties, pursuant to § 706.”[7] 517 F.2d at 869 (emphasis added). Amicus also points to Allegheny-Ludlum’s recognition that the Sixth Circuit had “indicated that the Commission may have similar responsibilities in connection with ‘pattern or practice’ suits brought under § 707.” AmBr.20 (citing 517 F.2d at 869 (citing United States v. Masonry Contractors Ass’n of Memphis, 497 F.2d 871, 875-76 (6th Cir. 1974))). However, amicus again omits that Allegheny-Ludlum characterized this language from Masonry as dicta, 517 F.2d at 869—and that, in 2012, the Sixth Circuit affirmed that “§ 707 permits the EEOC to initiate suit without first receiving a charge filed by an aggrieved individual, as it must when initiating suit under § 706.” Serrano v. Cintas Corp., 699 F.3d 884, 896 (6th Cir. 2012).

Doherty also maintains that the EEOC “violated its own regulations” when it “made public” Doherty’s 2013 arbitration agreement. See AeBr.49-50. Doherty identifies no allegedly violated regulation, although it cites § 709(e) of Title VII (42 U.S.C. § 2000e-8(e)). AeBr.50. Section 709(e) makes it “unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information.” (Emphasis added.)

As the record reflects, the EEOC learned of Doherty’s 2013 agreement while performing a Rule 11 investigation in connection with a charge of discrimination filed against Doherty that was unrelated to its arbitration agreement. Vol.I, R.259-5. The EEOC discovered the 2013 agreement by performing a simple, public Google search. Vol.I, R.259-4 at 16. Doherty’s argument appears to be that the 2013 agreement could not be “publicly disclosed” prior to the EEOC’s initiating a proceeding in regard to the unrelated discrimination charge. AeBr.50.

Doherty is incorrect for two reasons. First, “public disclosure” does not include the EEOC’s use of information obtained during one investigation as part of another. See EEOC v. Assoc. Dry Goods, 449 U.S. 590, 604-05 (1981) (when investigative information is relevant to more than one charge, EEOC may “fully comply with [Title VII]” by placing the relevant information in multiple charge files). Second, insofar as Doherty means the “public disclosure” of the 2013 agreement via this suit, § 709(e) only bars disclosure of investigative information “prior to the institution of any proceeding … involving such information”—not during such a lawsuit. (Emphasis added.) Doherty identifies no contrary authority.[8]

Finally, Doherty posits that the “law of the case” doctrine requires the EEOC to “follow Section 706 procedures.” AeBr.51. As best we can tell, Doherty’s argument appears to be that the EEOC was obliged to follow § 706 procedures in this case because the agency first learned that Doherty’s arbitration agreement existed via a charge investigation. However, this case is unrelated to the investigation of that charge and did not use that charge, or any charge, as its jurisdictional basis. Vol.I, R.259-5. Because this is a § 707(a) resistance action brought without a predicate discrimination charge, § 706’s presuit procedures do not apply.

IV. Section 707(a) provides a cause of action for a pattern or practice of resistance to the full exercise of Title VII rights.

The district court properly concluded that § 707(a) provides a cause of action for a pattern or practice of “resistance” to an individual’s Title VII rights, separate and apart from the “unlawful employment practices” discussed in § 706. AtBr.58-62. This understanding of § 707(a) is supported by settled principles of statutory construction, Supreme Court precedent, and the particular interpretation courts have given to § 707(a). Id.

Doherty argues that the EEOC’s interpretation of § 707(a) is unconstitutionally vague because it reaches more conduct than “unlawful employment practices”—discrimination and retaliation—prohibited by other provisions of Title VII. See AeBr.52. Similarly, Doherty and amicus complain that this interpretation is unfair to employers. AeBr.53; AmBr.21-25. Both are incorrect.

As the district court correctly stated, “because Congress chose to use different language in the two sections [706 and 707(a)], it manifested different intent; namely, that a resistance claim is not limited to cases involving an unlawful employment practice.” Vol.I, R.32 at 9-10; see also AtBr.58-62. There is nothing unfairly vague or inconsistent about Congress’ use of the term “resistance” in § 707(a), which it repeated in several other parallel statutes. See AtBr.58-60 & n.7. Courts have understood “resistance to the full enjoyment of any of the rights secured by this subchapter” in § 707(a), by its plain terms, to reach efforts to stop or prevent an individual from exercising Title VII rights. See AtBr.61-62 (citing cases).

While Doherty contends that such an understanding of the statute “[i]gnor[es] the clear statutory, legal, and legislative intent,” AeBr.53, the company identifies no authority conflicting with this understanding of § 707(a). Amicus also maintains that § 707(a) actions are limited to “discrimination,” but, with only one exception, the authority it cites does not support its argument. See generally AmBr.8-12. For example, in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 329, 334-35 (1977), the employer was charged with resistance under § 707(a), but the resistance conduct at issue was “a pattern or practice of discriminating against minorities.” The Court had no reason to address the viability of a § 707(a) resistance claim not based on discriminatory conduct under § 706, as that question was not before it. Id. at 334-35. But see id. at 336 n.16 (stating that systemic racial discrimination or “repeatedly and regularly engag[ing] in acts prohibited by the statute” are examples of a “pattern or practice” of denial of rights, not the entire universe).

Amicus’s remaining authority mostly consists of string cites of passing references in Supreme Court dicta (AmBr.9), citations to dicta from § 706 cases in the courts of appeals (AmBr.10), and, in one case, an outright misrepresentation of a court’s language. Compare Serrano, 699 F.3d at 894 (“The Court in Teamsters then analogized the facts surrounding discrimination claims brought by the EEOC under § 707, which are limited to allegations of a pattern or practice of discrimination, to the facts in Franks v. Bowman Transportation Co. ….”) (internal citation omitted) (emphases added), with AmBr.10 (omitting Serrano’s qualifier “discrimination claims”). The only authority amicus cites actually supporting its interpretation of § 707(a) is the Seventh Circuit’s erroneous ruling in CVS, which is nonbinding on this Court and, as noted supra at 21-22, conflicts with Allegheny-Ludlum.

Similarly, amicus’s references to Title VII’s legislative history are highly selective. AmBr.10-11. When the Supreme Court reviewed the legislative history and, specifically, the 1972 amendments to Title VII, it emerged with a very different view from amicus’s assertion: “[t]he EEOC … has the authority to institute exactly the same actions that the Department of Justice does under pattern or practice.” Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318, 328 (1980) (internal quotation marks omitted, emphasis added). As the district court recognized, before 1972, § 707(a) litigation included pattern-or-practice-of-resistance cases against non-employer defendants like the Ku Klux Klan. See Vol.I, R.32 at 10 & n.7. Amicus offers no reason to presume Congress was ignorant of how courts were permitting the government to litigate § 707(a) claims when it amended the statute in 1972 and left § 707(a) intact. See Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.”).

Finally, amicus accuses the EEOC of attempting to avoid its conciliation obligations. AmBr.24. This accusation is baseless and nonsensical. Title VII indisputably requires the EEOC to engage in conciliation when a charge of discrimination is filed and results in a reasonable-cause determination, which is the case in the vast majority of EEOC suits. The EEOC cannot “opt out” of conciliation in cases when sues based on a charge of discrimination, and it cannot proceed under § 707 in any non-pattern-or-practice case. Nor would the EEOC have an incentive to do so, given that a jury trial and compensatory and punitive damages are only available under § 706, not § 707(a). See 4 2 U.S.C. § 1981a(a)(1), (c).

V. A reasonable fact-finder could conclude that Doherty acted with the requisite intent.

As explained previously, for § 707(a) purposes, “[t]he requisite intent may be inferred from the fact that the defendants persisted in the conduct after its [unlawful] implications had become known to them.” United States v. Jacksonville Terminal, 451 F.2d 418, 443 (5th Cir. 1972); AtBr.62-63. This is, and has always been, the EEOC’s position here: that Doherty persisted in using the 2013 agreement despite being aware that it would deter charge-filing and cooperation with the EEOC and FEPAs. AtBr.63-65. The effect was “not accidental.” Jacksonville Terminal, 451 F.2d at 443. According to Doherty (AeBr.24), the EEOC’s argument is that mere intent to use the 2013 agreement suffices to meet the standard, but this is untrue.[9]

The evidence that Doherty acted with the requisite intent includes the language of the 2013 agreement itself; Doherty’s elimination of the employee handbook provision explaining individuals’ charge-filing rights; and witness testimony, including Potoreiko’s unequivocal statement that he and his colleagues were advised that the 2013 agreement precluded their ability to present complaints to any entity other that Doherty. AtBr.64; Vol.I, R.284-1 at 2. In addition, a fact-finder would be entitled to consider how Coughlin’s proffered explanation for Doherty’s 2013 changes to its arbitration agreement does not explain why it altered the agreement language regarding Title VII and charge-filing. AtBr.64-65.

Doherty points to its management officials’ testimony that they never so intended, adding that the company maintains workplace posters regarding charge-filing rights. AeBr.24-26. But such evidence indicates, at most, the existence of a genuine dispute of material fact, which renders summary judgment inappropriate.

Doherty also apparently argues that because there is no evidence it used the 2013 agreement to “discriminate,” it did not intentionally violate the statute. See AeBr.25-26. Again, Doherty misunderstands § 707(a), which broadly addresses conduct interfering with individuals’ full enjoyment of their rights under Title VII, and is not limited to “adverse employment actions.” See AtBr.58-62. It provides a specific cause of action for the government, and only the government, to protect statutory rights by targeting broader “patterns or practices of resistance,” while providing only for such relief as may be necessary to safeguard those rights.

Along the same lines, Doherty contends that Jacksonville Terminal is distinguishable because it was a discrimination case; here, because discrimination was not at issue, Doherty ostensibly could not have known it was violating the statute. AeBr.25. This argument holds no water. Doherty apparently does not contest Jacksonville Terminal’s basic holding: an entity that persists in its conduct after becoming aware that its behavior is unlawful acts with the intent required under § 707(a). See AtBr.62-63. Here, the EEOC presented evidence that Doherty drafted and implemented its 2013 agreement knowingly and with the intent to interfere with its employees’ and applicants’ Title VII rights, and that it persisted in this conduct for nearly two years. This is plainly sufficient to satisfy the Jacksonville Terminal intent standard.

Finally, as explained supra at 12, the EEOC has not taken the position that Title VII requires arbitration agreements to contain an explicit “carve-out” for EEOC charges, or that NLRA precedent governs Title VII cases in this respect. Doherty’s discussion of the differences between the NLRA and Title VII (AeBr.22-24) appears to be yet another response to an argument the EEOC is not making. Title VII does give individuals rights to file charges and cooperate with the EEOC, which is why courts have consistently held that contract provisions restricting these rights are void as against public policy. AtBr.24; see supra at 5. It is also why the government is empowered to file suit under § 707(a) to ensure that “any person or group of persons” does not interfere with those rights.

Conclusion

The EEOC respectfully requests that this Court vacate the grant of summary judgment to Doherty and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

[1] The statute and regulations impose certain procedures and time limits on charge-filing, but these do not limit individuals’ charge-filing rights. For example, as this Court has observed, where requirements such as timely filing are not satisfied, the remedy is a defense to liability on the claim later filed in court. See, e.g., Reed v. Winn Dixie, Inc., 677 F. App’x 607, 610 (11th Cir. 2017).

[2] Curiously, Doherty contends that even if the agreement is ambiguous, the EEOC’s interpretation of the agreement is irrelevant and inadmissible “evidence” because the EEOC is not a party to it. AeBr.33-34. Of course, the EEOC’s interpretation is not evidence. Doherty’s suggestion that the EEOC—the plaintiff here—cannot offer argument on the proper interpretation of the 2013 agreement is nonsensical.

[3] See also infra at 32 (discussing intent).

[4] According to Doherty, the EEOC must show that Title VII contains a congressional mandate contrary to the Federal Arbitration Act (“FAA”) and violated by the 2013 agreement. AeBr.17-18. But a § 707(a) violation is entirely distinct from the mandates of the FAA, see 42 U.S.C. § 2000e-6(a), and the statutes are entirely consistent so long as the FAA is not interpreted to restrict Title VII charge-filing. Doherty identifies no authority for its novel proposition.

[5] In its opening brief the EEOC inadvertently misspelled Potoreiko’s surname as “Portoreiko.”

[6] Section 706 defines “unlawful employment practice” as discrimination or retaliation as set forth in 42 U.S.C. §§ 2000e-2, 3. See AtBr.58.

[7] Relatedly, Doherty compares this matter to the § 706-based conciliation-efforts issue presented in EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003), and maintains that there is a “split in the circuits about what constitutes good-faith conciliation.” AeBr.46-49 & n.4. Doherty is apparently unaware that Mach Mining announced a single, nationwide standard for conciliation efforts that displaced the standard in Asplundh. See 135 S. Ct. at 1651 n.1, 1655-56.

[8] Even assuming there were a § 709(e) violation, the penalty would not be dismissal of this suit. 42 U.S.C. § 2000e-8(e).

[9] Doherty asserts (AeBr.25-26) that the EEOC “relies on several cases in support of its position that intent is not necessary in a Title VII pattern or practice case,” but two of the three cases Doherty identifies do not even appear in the EEOC’s brief.