Appellant Brief in EEOC v Boeing

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................... iii

INTRODUCTION............................................................................................ 1

ARGUMENT................................................................................................... 4

A. The district court erred in dismissing the nineteen claimants................. 4

1. Geo’s arguments on appeal contradict its arguments below............... 4

2. Geo does not refute that Title VII neither implies a

“failure-to-conciliate” defense nor authorizes judicial review

of the sufficiency of EEOC’s pre-suit process........................................ 6

3. Title VII’s pre-suit requirements are not jurisdictional....................... 7

4. Although it erred in doing so, the court clearly reviewed the

sufficiency of EEOC’s process and found the agency conciliated

in bad faith............................................................................................ 10

5. Title VII does not bar EEOC from seeking relief for victims

identified during discovery.................................................................. 12

6. EEOC provided adequate notice of the scope of the charges,

which gave Geo a meaningful opportunity to conciliate.................... 20

7. If conciliation is reviewable, a deferential standard applies and

EEOC’s claims are not subject to dismissal........................................ 22

B. The court erred in limiting EEOC’s suit to acts within the 300 days

before the determination......................................................................... 23

1. The 300-day limit runs from the charge............................................. 23

2. EEOC may recover for post-determination acts................................. 26

TABLE OF CONTENTS (cont’d)

C. A jury should determine whether Geo subjected Sofia Hines to a

hostile work environment........................................................................ 28

CONCLUSION.............................................................................................. 32

CERTIFICATE OF COMPLIANCE............................................................. C-1

CERTIFICATE OF SERVICE...................................................................... C-2

STATUTORY ADDENDUM....................................................................... end

TABLE OF AUTHORITIES

Cases

Abeita v. Transamerica Mailings, Inc.,

159 F.2d 246 (6th Cir. 1998)................................................................... 31

Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253 (9th Cir. 2010)......... 26

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)........................................... 8

Best v. California Dep’t of Corr., 21 F. App’x 553 (9th Cir. 2001)........... 29

Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999)....................... 31

Costanich v. Dep’t of Soc. & Health Servs.,

627 F.3d 1101 (9th Cir. 2010)................................................................. 27

Cmty. House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007).......... 28

EEOC v. Agro Distrib., 555 F.3d 462 (5thCir. 2009).................................. 9

EEOC v. Alia, 842 F. Supp. 2d 1243 (E.D. Cal. 2012).................................. 9

EEOC v. American Nat’l Bank, 652 F.2d 1176 (4th Cir. 1981)............. 16, 17

EEOC v. American Nat’l Bank, 1979 WL 25 (E.D. Va. 1979).................... 17

EEOC v. Bruno’s Restaurant, 13 F.3d 285 (9th Cir. 1993).................... 7, 15

EEOC v. Carrols Corp., No. 98-1772, 2011 WL 817516,

(N.D.N.Y. March 2, 2011)....................................................................... 24

EEOC v. Caterpillar, 409 F.3d (7th Cir. 2005).......................................... 19

EEOC v. CRST, 670 F.3d 897 (8th Cir. 2012)............................................. 10

EEOC v. CRST, 679 F.3d 657 (8th Cir. 2012)............................ 12, 17, 18, 22

TABLE OF AUTHORITIES (cont’d)

EEOC v. Dial, 156 F. Supp. 2d 930 (N.D. Ill. 2001).................................... 11

EEOC v. Dillard’s, No. 08-1780, 2011 WL 2784516

(S.D. Cal. July 14, 2011)...................................................................... 19, 21

EEOC v. Freeman, No. 09-2573,

2011 WL 337339 (D. Md. Jan. 31, 2011)....................................... 23, 24

EEOC v. Jillian’s, 279 F. Supp.2d 974 (S.D. Ind. 2013)....................... 19, 21

EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963 (7th Cir. 1996).......... 18

EEOC v. Hearst, 553 F.2d 579 (9th Cir. 1977)..................................... 20, 25

EEOC v. Keco, 748 F.2d 1097 (6th Cir. 1984).............................................. 11

EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013)....................... 6, 12, 19

EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840 (9th Cir. 2005)........... 29

EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539 (W.D. Va. 2001)....... 24

EEOC v. Pierce Packing, 669 F.2d 605 (9th Cir. 1982)......................... 7, 10

EEOC v. Princeton Healthcare Sys., No.10-4126, 2012 WL 5185030

(D.N.J. Oct. 18, 2012).............................................................................. 24

EEOC v. Rhone-Poulenc, 876 F.2d 16 (3d Cir. 1989)............................ 15, 16

EEOC v. United Parcel Serv., 94 F.3d 314 (7th Cir. 1996)........................ 18

EEOC v. United Parcel Serv., 860 F.2d 372 (10th Cir. 1988)................... 16

EEOC v. Waffle House, 534 U.S. 279 (2002)............................................. 15

Foster v. Ruhrumpen, Inc., 365 F.3d 1191 (10th Cir. 2004)..................... 25

TABLE OF AUTHORITIES (cont’d)

Gen. Tel. Co. v. EEOC, 446 U.S. 318 (1980)............................. 13, 14, 15, 17

Harrell v. 20^th Century Ins. Co., 934 F.2d 203 (9th Cir. 1991)................ 26

Hipp v. Liberty Nat’l Life Ins., 252 F.3d 1208 (11th Cir. 2001)............... 27

Leeson v. Transamerica Disability Income Plan, 671 F.3d 969

(9th Cir. 2012)....................................................................................... 8, 9

Lucky Stores v. EEOC, 714 F.2d 911 (9th Cir. 1983)...................... 16, 21, 25

Marshall v. Sun Oil, 605 F.2d 1331 (5th Cir. 1979).................................... 17

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010)................................. 8

Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999)......................................... 27

Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012)....................... 16, 21

Statutes

42 U.S.C. § 2000e-2(a)(1)............................................................................ 29

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

42 U.S.C. § 2000e-5(b).................................................................................. 8

42 U.S.C. § 2000e-5(f)(1)............................................................................. 13

42 U.S.C. § 2000e-5(f)(3).............................................................................. 9

42 U.S.C. § 2000e-6(e) (§707)...................................................................... 5

TABLE OF AUTHORITIES (cont’d)

Rules

Fed. R. Civ. P. 12(b)(1).................................................................................... 7

Fed. R. Civ. P. 12(b)(6).................................................................................... 7

INTRODUCTION

In its opening brief, EEOC argued that because EEOC investigated, found cause, and conciliated, the district court erred in dismissing nineteen out of twenty-five women from EEOC’s suit alleging sex discrimination and retaliation at Geo’s side-by-side prisons in Florence, Arizona. EEOC argued that Title VII does not imply a “failure-to-conciliate” defense or provide for judicial review of the adequacy of the agency’s pre-suit efforts. In any event, EEOC argued, Title VII does not mandate that EEOC perform its pre-suit requirements on an individual basis when seeking relief for a class of aggrieved individuals, as the district court held. Rather, Title VII requires only that EEOC receive a charge, investigate, issue a determination as to the original charge and any violations ascertained during a reasonable investigation, and conciliate. EEOC satisfied those requirements here. If the agency’s pre-suit requirements are reviewable and fell short, EEOC argued, a stay rather than dismissal was the appropriate remedy.

Geo concedes many of EEOC’s key arguments, including the point that EEOC need not “separately identify” each potential claimant before filing suit. Resp.44. But at the same time, Geo contends it is significant that EEOC made no “individual” investigation, determination, or conciliation. There is an obvious incongruity between Geo’s two positions – that EEOC must conduct all administrative proceedings at an individualized level, yet need not convey that “individualized” information to the employer before filing suit. EEOC submits that Geo’s position does not make sense and, fundamentally, is at odds with longstanding precedent deferring to EEOC’s judgment on how best to investigate and conciliate a “class” case. Instead, as courts have recognized, as long as EEOC sets out the parameters of the class in its determination, as EEOC did here, it has satisfied the administrative prerequisites for a class lawsuit.

Geo does not refute EEOC’s argument that Title VII lacks a “failure-to-conciliate” defense to the merits or any provision authorizing judicial review of the adequacy of EEOC’s pre-suit process. Erroneously treating EEOC’s enforcement action as a compilation of twenty-five individual “claims,” Geo instead argues that EEOC’s failure to perform its pre-suit requirements as to nineteen of those women’s “claims” deprived the district court of jurisdiction over EEOC’s suit. This argument fails because Title VII’s text and recent Supreme Court precedent make clear that Title VII’s pre-suit requirements are conditions precedent, not jurisdictional requirements.

In any event, this is not a case in which EEOC filed suit without first having investigated, found cause or conciliated. To the contrary, it is undisputed that EEOC investigated Hancock’s charge alleging sex discrimination and retaliation, which revealed additional victims; issued a determination as to a “class” of female employees and referred to Geo’s Florence West and Central Arizona Correctional Facility (CACF) prisons; and offered to conciliate as to the class, which EEOC estimated to include at least nineteen women.

EEOC also argued that the district court erred in limiting the temporal scope of EEOC’s suit for the class to the 300 days prior to EEOC’s determination, rather than the charge, and in barring related post-determination acts. Geo’s response fails to cite any statutory language or circuit decision supporting the district court’s narrowing of the time frame for discrimination that may be challenged.

Finally, EEOC contended that a jury should determine whether Geo subjected Sofia Hines to a hostile work environment. Geo’s contrary argument cannot be reconciled with this Court’s precedent holding that gender-based harassment may be considered in assessing whether an individual has experienced unlawful sex discrimination, and with this Court’s holdings in other cases finding comparable conduct sufficient to warrant a jury’s consideration.

ARGUMENT

A. The district court erred in dismissing the nineteen claimants.

EEOC argued that the district court erred in dismissing the nineteen women because Title VII neither implies a “failure-to-conciliate” defense nor authorizes review of the sufficiency of EEOC’s pre-suit process. Geo responds that dismissal was appropriate because Title VII’s pre-suit requirements are jurisdictional and because EEOC failed to administer its pre-suit requirements as to each of the nineteen women’s “claims.”

Geo’s characterization of EEOC’s pre-suit requirements is incorrect. Neither Title VII, nor Supreme Court precedent, nor Ninth Circuit precedent require EEOC to identify each victim during its pre-suit process before seeking relief in a “class” suit where, as here, the scope of the lawsuit matches the scope of the investigation, cause determination, and conciliation.

1. Geo’s arguments on appeal contradict its arguments below.

As a preliminary matter, Geo criticizes EEOC for wasting this Court’s time with the “diversionary” issues of whether Title VII implies a failure-to-conciliate defense or authorizes judicial review of the adequacy of EEOC’s pre-suit processes. Resp.38. According to Geo, this appeal does not raise these issues because the court found EEOC failed to administer its pre-suit requirements as to each of the nineteen “claims” of the women, not that EEOC’s investigation was inadequate or that EEOC conciliated in bad faith. But this is not what Geo argued below. To the contrary, Geo argued that all of the class members should be dismissed because EEOC failed to investigate their individual claims and “failed to conciliate in good faith” by refusing to respond to Geo’s demands for more information about the class members. See R.86, pp.13-15. The district court’s order reflects that the court agreed with these arguments. See infra, at A.4. Accordingly, Geo’s argument that this appeal does not raise the issue of whether Title VII implies a failure-to-conciliate defense or authorizes review of the sufficiency of EEOC’s pre-suit process is both disingenuous and incorrect.^{^[1]}

Geo also criticizes EEOC for devoting time to the district court’s erroneous view that EEOC must perform its pre-suit requirements on an individual basis in §706 (42 U.S.C. § 2000e-5) cases but not in §707 (42 U.S.C. § 2000e-6) cases on the ground that compensatory damages are available under only §706. Resp.45-47. But Geo is the one who suggested below that §706 and §707 impose different pre-suit requirements. R.86, p.14 n.16. And, again, the district court’s opinion makes clear that it agreed that EEOC must conduct “individualized conciliation” “for section 706 claims” but not “section 707 claims.” ER105 (holding that availability of compensatory damages under §706 requires EEOC to conduct “individualized conciliation”).

2. Geo does not refute that Title VII neither implies a “failure-to-conciliate” defense nor authorizes judicial review of the sufficiency of EEOC’s pre-suit process.

Relying on the text of Title VII and EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013), petition for cert. filed, No.13-1019, EEOC argued that Title VII does not imply a “failure-to-conciliate” defense to the merits or permit judicial review of the adequacy of EEOC’s pre-suit efforts. Br.28-31. EEOC added that while some courts have held EEOC’s conciliation to a “good faith” standard, this standard appears nowhere in the statute and the courts have fundamentally disagreed on its application. Br.31-35.

Geo implicitly concedes these points, as Geo does not identify any language in Title VII providing for judicial review of the adequacy of EEOC’s conciliation efforts or any language implying a “failure-to-conciliate” defense (in “good faith” or otherwise). To the contrary, Geo frankly concedes that “the manner in which EEOC conducts its investigation, reasonable cause determination and attempted conciliation is generally left to EEOC’s discretion.” Resp.28. Geo also does not dispute that the “good faith” standard is a judicial construct lacking any consistent interpretation or application.

3. Title VII’s pre-suit requirements are not jurisdictional.

Faced with the absence of an express or implied defense in Title VII for EEOC’s alleged failure to conciliate in “good faith”—or any provision authorizing judicial review of the adequacy of EEOC’s pre-suit process—Geo instead argues that EEOC’s pre-suit requirements are jurisdictional, making it “plainly proper for the courts to review whether they have been met.” Resp.22-23.^{^[2]} Geo is incorrect.

To be sure, this Court in the past has characterized Title VII’s pre-suit requirements as “jurisdictional.” See EEOC v. Pierce Packing, 669 F.2d 605, 608 (9th Cir. 1982) (stating that an investigation, determination, and conciliation “are jurisdictional conditions precedent to suit”); EEOC v. Bruno’s Rest., 13 F.3d 285, 288 (9th Cir. 1993) (calling conciliation a “jurisdictional condition precedent”). Recent Supreme Court cases, however, have clarified the difference between jurisdictional rules and claim-processing rules. Specifically, in Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006), the Supreme Court held that a statutory requirement is considered jurisdictional only if Congress “clearly states that [it] count[s] as jurisdictional”; “[b]ut when Congress does not rank a statutory limitation . . . as jurisdictional, courts should treat the restriction as non-jurisdictional.” Applying this “bright line rule,” the Court held that Title VII’s employee numerosity provision is not jurisdictional. Id. at 516. The Supreme Court and this Court have consistently applied Arbaugh’s “bright-line rule” in determining whether statutory conditions are jurisdictional. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-63 (2010) (applying Arbaugh and holding that Copyright Act’s registration requirement is a precondition to suit, not a jurisdictional requirement); Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 979 (9th Cir. 2012) (applying Arbaugh and Reed and holding that ERISA’s “participant status” requirement is not jurisdictional).

Here, Congress did not “clearly state” that EEOC’s investigation, determination, and conciliation requirements are jurisdictional. To the contrary, these requirements are contained in 42 U.S.C. § 2000e-5(b), while the provision granting subject matter jurisdiction to the courts is contained in 42 U.S.C. § 2000e-5(f)(3). Application of Arbaugh’s “bright line rule” therefore compels the conclusion that EEOC’s pre-suit requirements are conditions precedent. See, e.g., EEOC v. Agro Distrib., 555 F.3d 462, 468-69 (5th Cir. 2009) (applying Arbaugh and holding that “EEOC’s conciliation requirement is a precondition to suit but not a jurisdictional prerequisite”); EEOC v. Alia Corp., 842 F. Supp. 2d 1243, 1254 (E.D. Ca. 2012) (holding that Pierce Packing’s holding was “fatally undermined” by Arbaugh and Reed Elsevier). In EEOC’s view, Pierce Packing and Bruno’s did not hold to the contrary, as neither case squarely addressed whether Title VII’s pre-suit requirements are jurisdictional. In any event, intervening Supreme Court precedent has made clear that these requirements are statutory prerequisites to suit, not jurisdictional requirements. See Leeson, 671 F.3d at 979 (noting that “drive-by jurisdictional rulings lack precedential force” and holding that Arbaugh and its progeny required overruling prior precedent suggesting that participant status in ERISA cases is jurisdictional).

Thus, Geo’s assertion that Title VII’s requirements are jurisdictional is incorrect. But even if Geo were correct, dismissal of the nineteen women was still erroneous. This is not a case in which EEOC filed suit without having done any investigation, issuing a determination, or conciliating. Cf. Pierce Packing, 669 F.2d at 608 (affirming dismissal of EEOC’s suit where EEOC had not investigated, found cause, or conciliated at all). Rather, Geo acknowledges these steps occurred. Resp.4-9. Thus, regardless of whether Title VII’s requirements are jurisdictional requirements or statutory prerequisites to suit, EEOC fulfilled its pre-suit requirements.

4. Although it erred in doing so, the court clearly reviewed the sufficiency of EEOC’s process and found the agency conciliated in bad faith.

Geo strenuously argues as to the nineteen women that the district court did not hold EEOC’s investigation and cause findings were insufficient or that EEOC conciliated in bad faith. Resp.29-37,48. But that is exactly what the district court did. Rather than hold that no investigation transpired or that EEOC failed to issue a determination prior to suit, the court held EEOC had not “‘reasonably investigated the class allegations’” because EEOC had “not identified” the women until after filing suit. ER97-98 (quoting EEOC v. CRST, 670 F.3d 897, 916 (8th Cir. 2012)). Similarly, rather than hold that no conciliation occurred as to the class, the court held that the conciliation was not “‘meaningful’” because EEOC failed to put Geo on “‘notice of the scope of the charges against [it].’” ER98 (citation omitted). While the court did not use the term “good faith” in the pages it specifically devoted to dismissing the nineteen women (ER96-99), the court’s discussion of the nineteen women immediately followed the court’s review of the standard for “good faith” conciliation (ER94-96)—suggesting that the district court itself viewed EEOC’s conciliation as lacking good faith because EEOC did not identify the nineteen women until after filing suit.

In any event, other courts have correctly recognized that a challenge to EEOC’s investigation, cause finding, and conciliation as to a “class” is a challenge to the sufficiency of EEOC’s pre-suit process because it is, fundamentally, a challenge to the agency’s judgment about how to fulfill its administrative duties most effectively. For instance, in EEOC v. Keco, 748 F.2d 1097, 1099 (6th Cir. 1984), the district court agreed with the employer that EEOC’s suit should be dismissed because “EEOC did not investigate, find reasonable cause on, or conciliate the claims of discrimination against women as a class.” On appeal, however, the Sixth Circuit reversed, holding that the district court had erred by “inquir[ing] into the sufficiency of the Commission’s investigation” and cause finding. Id. at 1100 (emphasis added). Similarly, in EEOC v. Dial, 156 F. Supp. 2d 930, 938-39 (N.D. Ill. 2001), a §707 case, the employer argued that EEOC failed to satisfy its pre-suit requirements because the agency did not identify victims of harassment until discovery; the court rejected that argument, holding that EEOC’s determination was not judicially reviewable and that EEOC had conciliated in good faith. Thus, a challenge to EEOC’s failure to identify victims until discovery constitutes a challenge to the sufficiency of EEOC’s pre-suit process.

Geo’s argument that the court did not review the sufficiency of EEOC’s pre-suit process or find EEOC conciliated in bad faith is simply an attempt to distance this appeal from Mach Mining. That attempt fails. As in this case, in Mach Mining the EEOC sued on behalf of a “class” of women after receiving just a single charge of sex discrimination. 738 F.3d at 173. Like Geo, Mach Mining “sought dismissal of EEOC’s suit on the ground that the agency failed to engage in good-faith conciliation.” Id. at 172. On appeal, however, the Seventh Circuit held that Title VII does not imply a “failure-to-conciliate” defense and that even if EEOC’s conciliation efforts were reviewable, Title VII does not authorize dismissal on the merits. Id. at 174-83. Thus, Geo’s attempt to distinguish the posture of this case from that of Mach Mining is unavailing.

5. Title VII does not bar EEOC from seeking relief for victims identified during discovery.

Relying on EEOC v. CRST, 679 F.3d 657 (8thCir. 2012), and a handful of district court decisions, Geo contends that Title VII bars EEOC from seeking relief for individuals identified during discovery. Resp.28-38. This argument fails. Geo seeks to ground its individualized view of §706 in the statute, asserting repeatedly that §706 permits EEOC to bring suit “not on behalf of a ‘class’” but “on behalf of one or more ‘allegedly aggrieved persons.’” Resp.45; see also Resp.18,20-21,46 (same). Geo utterly mischaracterizes the statute.

Section 706(f)(1) actually states, quite broadly, that EEOC may “bring a civil action against any respondent” if EEOC is unable to obtain an acceptable conciliation agreement. 42 U.S.C. §2000e-5(f)(1). Section 706(f)(1) contains no language stating that an EEOC suit is “on behalf” of individuals. Geo also fails to accurately characterize the statutory reference to “person or persons aggrieved.” While Geo represents that §706(f)(1) permits EEOC to bring suit “on behalf of a ‘person or persons aggrieved,’” Resp.20, §706(f)(1) actually uses that language only in reference to the right of such individuals to intervene in an existing EEOC action. Indeed, the “person or persons aggrieved” language reveals that Congress understood that when EEOC brings suit under §706, the agency is not simply acting “on behalf” of individuals, as Congress gave aggrieved their own right of intervention. See Gen. Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (recognizing that the independent right of an individual to sue or intervene in EEOC’s action “suggests EEOC is not merely a proxy for the victims of discrimination” and that EEOC’s suits “should not be considered representative actions subject to Rule 23”).

Nor does judicial precedent support Geo’s argument that EEOC may seek relief for only those individuals identified before suit. EEOC argued in its opening brief that Supreme Court precedent, this Court’s precedent, and six circuits have permitted EEOC to seek relief for a class without investigating, finding cause, and conciliating on an individual basis. Br.38-44. Geo does not respond to these cases. Most significantly, Geo fails to respond to EEOC’s argument that requiring EEOC to identify each individual during the administrative process prior to seeking relief under §706 for a “class” of victims conflicts with General Telephone, 446 U.S. 318. Br.38-39. Rather than respond to this point, Geo instead argues that §706 “nowhere makes any provision for unnamed ‘class’ litigation as that concept is commonly understood under . . . Rule 23.” Resp.44-45. But the Supreme Court long ago rejected this argument in General Telephone, where the Court held that EEOC did not have to seek Rule 23 certification prior to filing suit for a group of aggrieved individuals; rather, the Court said, “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.

Underlying Geo’s individualized view of EEOC’s role when it brings suit under §706 is Geo’s contention that “[i]n a Section 706 action, EEOC stands in the shoes of the aggrieved persons.” Resp.46. What General Telephone clarified, though, is that EEOC’s authority is not tied to the particular individuals that comprise its class. As the Court put it, “the EEOC is not merely a proxy for the victims of discrimination.” Gen. Tel., 446 U.S. at 326. The Supreme Court later reaffirmed this principle in EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002), stating again that “the EEOC does not stand in the employee’s shoes.” Geo does not explain the stark discrepancy between its characterization of EEOC’s role and the Supreme Court’s characterization of that role.

Geo also fails to respond to EEOC’s argument that the district court’s dismissal of the nineteen women conflicts with this Court’s statement in Bruno’s Restaurant, 13 F.3d 285, that “‘in a class action suit, [t]he EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant.’” Id. at 289 (quoting EEOC v. Rhone-Poulenc, 876 F.2d 16 (3d Cir. 1986)) (emphasis added). Although Geo cites Bruno’s for the proposition that EEOC’s pre-suit conditions are jurisdictional, Resp.23, Geo never explains how Bruno’s can be reconciled with a rule barring EEOC from seeking relief for individuals who were not individually identified during EEOC’s pre-suit process.

Geo also fails to cite, much less address, Lucky Stores v. EEOC, 714 F.2d 911 (9th Cir. 1983). EEOC cited Lucky Stores for the proposition that EEOC does not have to investigate, find cause, and conciliate on an individual basis prior to filing suit under §706 because this Court held in Lucky Stores that the employer had received adequate notice of EEOC’s suit seeking relief for victims at three warehouses although EEOC’s investigation and cause determination referred to only one successor warehouse. Br.41-42. Geo’s argument that Title VII bars EEOC from seeking relief for victims identified during discovery simply cannot be reconciled with Lucky Stores, since that decision makes clear that EEOC had not investigated as to the two other warehouses prior to filing suit, meaning EEOC had not identified all victims prior to suit.

Similarly, Geo fails to address EEOC’s argument that the majority of circuits to address the issue have permitted EEOC to seek relief for a class without conducting individualized investigations, determinations, or conciliations. Br.42-43 (citing, inter alia, Serrano & EEOC v. Cintas, 699 F.3d 884 (6th Cir. 2012); EEOC v. UPS, 860 F.2d 372, 374 (10th Cir. 1988); Rhone-Poulenc, 876 F.2d at 17; EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984); EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1185-86 (4th Cir. 1981); Marshall v. Sun Oil, 605 F.2d 1331 (5th Cir. 1979)). Geo does not distinguish these cases or attack their reasoning; it simply ignores them. But these cases make clear that EEOC need not investigate, find cause, or conciliate each individual prior to seeking relief for a class. Nor does Title VII—as Geo phrases it—bar EEOC from seeking relief for individuals identified through discovery. See, e.g., Am. Nat’l Bank, 652 F.2d 1176 (reversing district court decision, 1979 WL 25, at *83 (E.D. Va. 1979), that barred EEOC from seeking relief for 51 claimants identified only in discovery).

Rather than address the precedent cited by EEOC, Geo argues that CRST, 679 F.3d 657, excerpts from Seventh Circuit decisions, and a handful of district court opinions support its view that “EEOC may NOT pursue in litigation aggrieved party claims” the agency learns of during discovery. Resp.28-29,35-37. Geo’s argument, and its repeated reference to the “claims” of the nineteen women, again reflects a fundamental misunderstanding of the nature of EEOC’s authority under §706. The nineteen women never intervened in this action; rather, EEOC is the plaintiff, and EEOC has just two claims: sex discrimination and retaliation. See Gen. Tel., 446 U.S. at 324 (EEOC may sue “in its own name” under §706 to secure relief “for a group of aggrieved individuals) (emphasis added). EEOC also explained that the extra-statutory requirement imposed by the Eighth Circuit in CRST finds no support in Title VII or judicial precedent, as the CRST dissent recognized. See Br.45. Moreover, the Eighth Circuit’s ruling was animated by its concern that “it was unclear whether [EEOC’s] . . . lawsuit involved two, twenty, or two thousand [victims],” whereas Geo was fully aware of the scope of EEOC’s class during the administrative process. CRST, 679 F.3d at 669 (internal quotation marks and citation omitted).

Geo’s reliance on EEOC v. Harvey L. Walner & Associates, 91 F.3d 963 (7th Cir. 1996), is misplaced, as the Seventh Circuit’s affirmance of summary judgment as to EEOC’s class claim in that case hinged upon the absence of any valid charge. Geo’s reliance on EEOC v. United Parcel Services, 94 F.3d 314, 318 (7th Cir. 1996), is similarly misplaced, as the passage that Geo quotes was dicta; the issue on appeal had nothing to with whether EEOC may seek relief for individuals identified after discovery in a §706 class case. If anything, United Parcel Service supports EEOC’s view of the statute, as the Seventh Circuit observed that “because the EEOC represents the public interest . . . it need not obtain class certification to bring relief on behalf of a class of unidentified individuals.” Id. at 318 (citing Gen, Tel., 446 U.S. 318) (emphasis added). In any event, Geo fails to address the more recent and more apposite cases decided by the Seventh Circuit: EEOC v. Caterpillar, 409 F.3d 831 (7th Cir. 2005), which held in a class case that Title VII does not permit judicial review of the adequacy of EEOC’s investigation or determination, and Mach Mining, 738 F.3d 171, which again held in a class case that Title VII does not imply a “failure-to-conciliate” defense or authorize review of the sufficiency of EEOC’s conciliation.

Geo cites EEOC v. Dillard’s Inc., 2011 WL 2784516 (S.D. Cal. July 14, 2011), and EEOC v. Jillian’s, 279 F. Supp.2d 974 (S.D. Ind. 2013), as holding that EEOC may not seek relief for individuals identified during discovery. Resp.28. Geo’s citation of these cases is misleading. Neither decision barred EEOC from seeking judicial relief for individuals unknown to EEOC during its investigation. Rather, these decisions simply limited EEOC’s lawsuit to the same geographic scope as EEOC’s preceding investigation and conciliation efforts, a factor not at issue here. See Dillard’s, 2011 WL 2784516, at *6-8 (permitting local class without having identified every class member); Jillian’s, 279 F. Supp. 2d at 979-80, 982-83 (same). Thus, contrary to Geo’s suggestion, Dillard’s and Jillian’s actually permitted EEOC to do what the district court prohibited EEOC from doing below: to utilize discovery to identify additional victims of the same kind of discrimination, in the same geographic region, that EEOC investigated, found cause, and conciliated.

Finally, limiting EEOC’s suits to only those individuals identified during the investigation would reward employers who “hide the ball.” See Br.36. Such a rule gives employers an incentive to withhold victim names during the agency’s investigation knowing EEOC could not seek relief for victims subsequently identified in litigation. See, e.g., CRST, 679 F.3d at 695 (Murphy J., dissenting) (requiring EEOC to “complete its presuit duties for each individual alleged victim . . . when pursuing a class claim” rewards employers “for withholding information from the Commission”).

6. EEOC provided notice of the scope of the charges, which gave Geo a meaningful opportunity to conciliate.

Geo contends that the scope of EEOC’s suit is limited by the scope of EEOC’s investigation, determination, and conciliation. Resp.26-27 (citing EEOC v. Hearst Corp., 553 F.2d 579, 580 (9th Cir 1977)). EEOC agrees. But EEOC’s lawsuit did not exceed the scope of the agency’s investigation, determination, and conciliation. Rather, EEOC’s investigation of Hancock’s charge alleging sex discrimination and retaliation at Florence West revealed additional victims; EEOC’s determination found cause as to “a class of female employees” and adopted ACRD’s determination, which referred to Florence West and the sex-offenders unit (in CACF); and EEOC conciliated as to the class claims for sex discrimination and retaliation. Exactly matching the scope of its pre-suit process, EEOC’s lawsuit alleged sex discrimination and retaliation at Florence West and CACF and sought relief for a “class of female employees.” ER439. Geo therefore cannot credibly contend it was surprised by either the claims or the geographic scope of EEOC’s suit. Cf. Dillard’s, 2011 WL 2784516, at *6-8 (scope of EEOC’s pre-litigation efforts insufficient to put employer on notice of nationwide claims but was sufficient as to El Centro store); Jillian’s, 279 F. Supp. 2d at 983 (EEOC’s determination to a “class of similarly-situated male employees and applicants” provided insufficient notice of nationwide class but sufficient notice as to a “local class”)). To the contrary, the notice Geo received more than satisfied Title VII’s notice requirement. See Lucky Stores, 714 F.2d at 912-13 (notice as to successor warehouse sufficed where EEOC sought relief for two other warehouses); Cintas, 699 F.3d at 904 (holding notice and conciliation sufficient where determination found cause as to “females as a class” and EEOC conciliated as to the class).

Given the notice Geo had of the claims under investigation and EEOC’s determination, Geo’s assertion that it lacked any “meaningful opportunity to conciliate” is therefore baseless. Resp.27. Geo knew exactly what kinds of discrimination were at stake (sex discrimination and retaliation); knew exactly where the violations occurred (Geo’s side-by-side prisons in Florence, AZ), and knew the class included at least nineteen women. Cf. CRST, 679 F.3d at 676 (faulting EEOC for failing to give any idea of the class size during conciliation). The determination even named three harassers, and ACRD produced the entire non-privileged investigative file.

It is even more difficult to countenance Geo’s argument that it lacked a meaningful opportunity to conciliate given Geo’s concession that EEOC need not “separately identify every person whose claims were actually investigated.” Resp.44. Evidently, Geo is no longer arguing that EEOC must provide the names of victims during conciliation. Presumably, Geo is also abandoning its argument that EEOC must also provide details about each victim’s allegations and emotional damages. It is unclear, then, what additional notice Geo needed in order to engage in “meaningful” conciliation.

7. If conciliation is reviewable, a deferential standard applies and EEOC’s claims are not subject to dismissal.

EEOC argued in the alternative that even if conciliation is reviewable under a “good faith” standard, a deferential standard applies; EEOC conciliated in “good faith”; and, at most, the statute permits a stay for additional conciliation—not dismissal on the merits. Br.49-54. Geo insists that the dismissal of the nineteen claimants was appropriate because EEOC failed “entirely” to fulfill its statutory pre-requisites. Resp.48. As discussed above, Geo’s characterization of this case as one in which EEOC failed to conduct its pre-suit steps fails on the record and the law. Geo otherwise makes no substantive response to EEOC’s arguments that a deferential standard would apply to the agency’s actions and that Title VII nowhere provides for dismissal of an EEOC action for inadequate pre-suit processes. See Br.51-52.

B. The court erred in limiting EEOC’s suit to acts within the

300 days before the determination.

1. The 300-day limit runs from the charge.

Geo does not dispute that if the 300-day limitation period runs from the charge, the hostile work environment claim as to Roach and Wilcox would be timely. Citing three unpublished and one published district court opinions—all from outside this Circuit—Geo insists that the district court held correctly that the operative date for the 3oo-day limitation period was the determination, not the individual charge. Resp.52-53. As is evident from Geo’s reliance on only these four decisions, neither Title VII nor any circuit decision supports the district court’s holding. And, as EEOC pointed out, EEOC v. Freeman, No. 09-2573, 2011 WL 337339, at *1-2 (D. Md. Jan. 31, 2011), is on appeal, No. 13-2365 (4th Cir.), and EEOC v. Princeton Healthcare Sys., No.13-2365, 2012 WL 5185030 (D.N.J. Oct. 18, 2012), has no final, appealable order. Br.56. EEOC also could not appeal EEOC v. Carrols Corp., 2011 WL 817516, No. 98-1772 (N.D.N.Y. March 2, 2011), which Geo also cites, because it was resolved by a consent decree.

In any event, Geo does not respond to EEOC’s argument that even if they were correctly decided, Princeton Healthcare and Freeman are inapposite because they involved new claims ascertained during an investigation while EEOC’s suit here added only new claimants. See Freeman, 2011 WL 337339, at *1-2 (holding that 300-day period for EEOC’s criminal check claim ran from letter formally notifying employer of expanded investigation, not from filing of charge alleging that the credit check policy was discriminatory); Princeton Healthcare, 2012 WL 5185030 at *5 (limitations period for EEOC’s disability claim ran from EEOC’s formal notice because the charge alleged sex discrimination). As the Sixth Circuit recognized in a context similar to this case, “the only difference between the EEOC’s later charge and Ms. [Hancock’s] initial charge is the number of persons victimized.” Keco, 748 F.2d at 1101. Geo also fails to respond to EEOC’s argument that EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539, 547 (W.D. Va. 2001), is of little help, as the district court relied on a Fourth Circuit case concerning the backpay provision of §706(g). See Br.56.

Geo cites Foster v. Ruhrumpen, Inc., 365 F.3d 1191, 1197 (10th Cir. 2004), a “piggyback” case, Resp.52, but it is unclear how Geo’s argument here sheds any light on whether the 300-day limitation period runs from the charge or the determination; the “piggyback” rule applies in private actions to allow non-filing individuals to recover, whereas the issue here is whether the limitations period in an EEOC action for discrimination uncovered during an investigation begins from the charge or EEOC’s notice to an employer of the uncovered violations. See Br.58-59 (explaining inapplicability of “piggyback” case to EEOC actions).

Next, Geo argues that this Court’s observation in Hearst, 553 F.2d 579, that EEOC had formally notified the defendant of claims EEOC ascertained during the investigation mandates starting the 300-day limitation from the determination. Resp.54. Geo reads too much into Hearst, which made this observation in passing while holding that EEOC could sue for the claims it discovered during the investigation. Moreover, this Court’s precedent weighs against running the limitations period from the determination; in Lucky Stores, 714 F.2d 911, this Court permitted EEOC to seek relief for discriminatory practices occurring before 1978 at two warehouses based on a single charge filed in 1979 at a third, successor, warehouse.

Finally, Geo seems to concede EEOC’s argument (Br.58) that Geo had knowledge of EEOC’s expanded violation before the determination. See Resp.53 (asserting determination provided first “formal” notice of the class claims). Thus, even if the limitations period runs from an employer’s notice of claims discovered during an investigation, the case should be remanded to the district court to determine when Geo first received actual notice and whether Roach and Wilcox experienced an act of harassment during the 300 days prior to that notice.

2. EEOC may recover for post-determination acts.

Geo contends that EEOC waived any challenge to the court’s ruling that EEOC cannot recover for post-determination acts. Resp.54-55. This argument fails. While a party’s failure to raise an issue or argument before the district court generally precludes raising the issue on appeal, “this general rule does not apply when the district court nevertheless addressed the merits of the issue not explicitly raised by the party.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8 (9th Cir. 2010) (internal quotes and citation omitted); see Harrell v. 20^th Century Ins. Co., 934 F.2d 203, 205 n.1 (9th Cir. 1991) (plaintiffs’ “failure to address the statute of limitation issues in their response to the motion to dismiss” did not preclude plaintiffs from raising the issue on appeal because the defendant raised and briefed the limitations issue).

Here, the district court clearly considered Geo’s argument that EEOC cannot recover for post-determination acts. Specifically, the court stated that the “final timeliness issue the Court addresses” was Geo’s argument that post-determination acts cannot be considered. ER35. After noting, correctly, that EEOC had failed to respond to Geo’s argument, the district court stated that Hipp v. Liberty Nat’l Life Ins., 252 F.3d 1208 (11th Cir. 2001)—which refused to extend the private action “piggyback” rule to post-charge acts—was “persuasive,” and the court held that EEOC could not recover for post-determination acts. ER35-36. Because the district court ruled on the timeliness of post-determination acts, the cases Geo cites at page 55 are inapposite. Cf. Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (“As a general rule, we do not consider an issue not passed upon below.’”) (emphasis added and citation and quotation marks omitted); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (refusing to consider an issue first raised in an appellate reply brief where the issue was neither raised below nor considered by the district court).

Furthermore, this Court may consider an issue raised for the first time on appeal where it involves a purely legal question and the opposing party would not be prejudiced. See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1053 (9th Cir. 2007). Here, the question of whether EEOC can recover for post-determination acts when suing on behalf of a group of aggrieved individuals presents a pure legal question. Consideration of this question does not prejudice Geo because Geo raised the issue below and had a chance to respond to EEOC’s argument on appeal, and because post-determination acts are more recent, negating any concern about their becoming stale.

C. A jury should determine whether Geo subjected Sofia Hines

to a hostile work environment.

EEOC argued that a reasonable jury could find that Geo subjected Sofia Hines to a hostile work environment, making summary judgment inappropriate. Br.61-65. Specifically, EEOC argued that the court erred in discounting some conduct as not “of a sexual nature” and other conduct as “not even directed at Hines,” and by crediting Hilsden’s testimony that he only accidentally touched Hines over her testimony that he intentionally spanked her. Br.63. Geo disagrees with these points, but Geo’s arguments are unpersuasive.

Geo insists that the court properly found that harassment must be “of a sexual nature” in order to be actionable. Geo’s argument lacks textual support and conflicts with this Court’s precedent. Title VII does not prohibit harassment that is “sexual in nature.” Rather, 42 U.S.C. § 2000e-2(a)(1) makes it an unlawful employment practice to “discriminate against any individual with respect to [her] . . . . terms, [or] conditions . . . . of employment[] because of such individual’s . . . sex.”

In accordance with Title VII’s text, this Court has recognized that “it is clear that [ ] harassing conduct or language need not be sexual in nature in order to state a hostile work environment claim under Title VII.” Best v. California Dep’t of Corr., 21 F. App’x 553, 556 (9th Cir. 2001). Rather, “the harassment [need only] be based on the victim’s gender.” Id. Contrary to Geo’s contention, neither Best nor EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 845 (9th Cir. 2005), can be distinguished as involving “gender” instead of “sex” discrimination. Resp.55, n.12. Title VII prohibits only sex discrimination; gender discrimination is simply another way to describe sex discrimination. See generally Best, 21 F. App’x at 556 (holding that plaintiff failed to show her mistreatment was “based on her sex” because nothing about the harassment suggested she “was harassed due to her gender”). Accordingly, the district court erred in holding EEOC’s evidence insufficient on the ground that no “reasonable jury could find that all these incidents were of a sexual nature.” ER64.

Next, Geo accuses EEOC of “grossly misstat[ing] the District Court’s ruling” by asserting that the court credited Hilsden’s testimony over Hines’ testimony. Resp.56-57. EEOC’s two-sentence argument on this point was that the court erred, on summary judgment, in crediting Hilsden’s statement that he accidentally touched Hines over her testimony that he intentionally spanked her, as credibility determinations should be resolved at trial. Br.63. While the district court did state that “even assuming Hilsden touched Hines intentionally” the harassment was not actionable, it is clear from the court’s discussion in the preceding paragraph and the court’s statement that “a reasonable person would not find accidental touching to be sexual harassment” that the court credited Hilsden’s testimony over Hines’. And Geo has no response to EEOC’s argument that a jury could find that being intentionally spanked in front of inmates and cadets by a co-worker with the power to “run the yard” for the day was a deeply offensive and humiliating act to a reasonable woman. Br.63.

Geo also disputes that a jury could find the harassment pervasive based on Hines’ testimony that Hilsden was “always talking dirty.” Resp.58. According to Geo, this statement is simply too “vague and conclusory.” Geo significantly downplays Hines’ testimony and what a reasonable jury could conclude from it. Hines testified at page 72 of her deposition that Hilsden was “always talking dirty, always trying to pick up somebody,” and that he talked dirty to her. ER295. When asked “what did he say?”, Hines responded, “H[ilsden] would comment things like . . . [when] I was eating a bag of . . . mixed salty nuts” and offered him some, Hilsden responded, “‘No thank you. I have my own nuts.’ Comments like those . . . .” ER296 (emphasis added). At page 76 of her deposition, Hines repeated that Hilsden “always, always talked dirty. That’s his whole conversation to people,” and she described his use of hand gestures when talking about his girlfriends. ER299. Accordingly, a jury would be entitled to find that Hilsden’s comments were pervasive, and a jury could easily grasp the jist of his comments based on Hines’ recollection of the salty-nuts and girlfriend comments. That Hines testified that she did not remember any other examples of Hilsden talking dirty, ER299, did not justify granting summary judgment. See Abeita v. Transamerica Mailings, Inc., 159 F.2d 246, 252 (6th Cir. 1998) (holding that plaintiff’s ability to recall only a few specific instances of sexually inappropriate comments “goes to the weight of the testimony, a matter for the finder of facts,” where the plaintiff testified that the comments were commonplace, ongoing, and continual).

Accordingly, the district court erred when—in reliance only on a Fifth Circuit case and an unpublished district court case from Kansas—it concluded that no reasonable jury could find that Hines was subjected to a hostile work environment. ER65. Rather, as EEOC argued, Br.64-65, the conduct alleged here suffices under this Court’s precedent to warrant a jury’s consideration. See also Burrell v. Star Nursery, Inc., 170 F.3d 951, 953 (9th Cir. 1999) (reversing summary judgment where supervisor made “comments that contained sexual references[,]” said he wanted to “take a trip to the mountains with her[,]” and commented about her looks and how “‘well built’ she was.”).

CONCLUSION

EEOC requests reversal of the district court’s orders and remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

/s/Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Attorney

Equal Employment Opportunity Commission

Office of General Counsel

131 M St., NE

Washington, D.C. 20507

(202) 663-4724

June 18, 2014

^{^[1]} Geo also insists that this appeal does not raise the issue of whether Title VII implies a “failure-to-conciliate” defense or authorizes review of the sufficiency of EEOC’s pre-suit process because EEOC did not (and could not) appeal the stay for additional conciliation as to five women. Resp.39-43. This argument is a red herring, as EEOC never suggested it was appealing that ruling.

^{^[2]}Tellingly, Geo presents its jurisdictional argument for the first time on appeal. Geo did not file a Rule 12(b)(1) motion to dismiss for a lack of jurisdiction. Rather, Geo filed a Rule 12(b)(6) motion to dismiss for failure to state a claim, arguing that EEOC conciliated in bad faith because EEOC refused to identify the class members or provide evidence showing they suffered emotional distress. R.10, pp.8-13 (in Case No. 10-1995). After the court denied that motion (R.21), Geo filed a motion for partial summary judgment for Plaintiffs’ “failure to exhaust administrative remedies,” correctly characterizing Title VII’s requirements as “statutory prerequisites to filing suit.” R.86, p.11.