TABLE OF CONTENTS

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

STATEMENT OF JURISDICTION........................................................... 1

STATEMENT OF THE ISSUE................................................................... 2

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings.............................. 3

2. Statement of Facts.............................................................................. 5

a. The administrative proceedings......................................... 5

b. The LOD and private action............................................. 16

c. The EEOC litigation........................................................... 17

3. The Magistrate’s Report, Recommendation, and Order............. 22

4. The District Court’s Decision.......................................................... 26

STANDARD OF REVIEW......................................................................... 27

SUMMARY OF ARGUMENT................................................................... 27

ARGUMENT

The district court erred in dismissing this Title VII

enforcement action based on the magistrate’s conclusion

that the Commission failed to prove that it did

a pre-suit “nationwide investigation” of charges

alleging a pattern or practice of sex discrimination

in pay and promotion....................................................................... 31

A. Title VII does not provide for judicial review of the sufficiency of EEOC’s pre-suit investigation................................................... 32

B. The magistrate erred in reviewing the sufficiency of the Commission’s investigation....................................................... 40

1. While purporting to examine the existence and/or scope of the investigation, the magistrate actually considered its “sufficiency.”.......................................................................... 41

2. There is no standard for deciding whether

a “nationwide investigation” occurred........................ 45

3. The magistrate improperly defined the word “investigation” in cases under federal anti-discrimination law..................................................................................................... 47

4. The other sentence fragments quoted by

the magistrate do not advance the magistrate’s conclusion that the Commission failed to satisfy

its duty to investigate......................................................... 53

5. The Commission satisfied this Title VII’s

pre-suit requirement........................................................... 59

C. The magistrate erred in dismissing this enforcement action because the Commission refused to waive the deliberative process privilege............................................................................................ 64

D. Even if the magistrate had properly concluded that the investigation was flawed, the enforcement action should not have been dismissed................................................................................ 69

CONCLUSION........................................................................................... 74

CERTIFICATE OF COMPLIANCE ....................................................... 75

ADDENDUM

Magistrate’s Report, Recommendation, and Order

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974).......................................................................... 37, 39

A. Michael’s Piano v. FTC,

18 F.3d 138 (2d Cir. 1994).................................................................... 66

Baba v. Japan Travel Bureau Int’l,

165 F.R.D. 398 (S.D.N.Y. 1996),

aff’d, 111 F.3d 2 (2d Cir. 1997)............................................................. 50

Brown v. Puget Sound Electrical App. & Training Trust,

732 F.2d 726 (9th Cir. 1984)................................................................ 55

EEOC v. Albertson’s,

2008 WL 4877046 (D. Colo. Nov. 12, 2008)....................................... 69

EEOC v. Asplundh Tree Expert Co.,

340 F.3d 1256 (11th Cir. 2003)...................................................... 37, 72

EEOC v. Bloomberg L.P.,

967 F.Supp.2d 802 (S.D.N.Y. 2013)............................ 23, 26, 43-44, 71

EEOC v. BNSF Railway Co.,

2014 WL 1571278 (D. Kan. April 18, 2014)....................................... 67

EEOC v. BOK Financial Corp.,

2014 WL 504074 (D.N.M Jan. 28, 2014)............................................ 36

EEOC v. California Psychiatric Transitions,

725 F.Supp.2d 1100 (E.D. Cal. 2010).................................................. 36

EEOC v. Caterpillar,

409 F.3d 831 (7th Cir. 2005)........................................ 35-37, 44, 53-54

EEOC v. Chicago Miniature Lamp Works,

526 F.Supp. 974 (N.D. Ill. 1981).......................................................... 38

EEOC v. Commercial Office Products,

486 U.S. 107 (1988)............................................................................... 51

EEOC v. Continental Airlines,

395 F.Supp.2d 738 (N.D. Ill. 2005)................................................ 66-67

EEOC v. CRST Van Expedited,

679 F.3d 657 (8th Cir. 2012) ........................... 22-23, 35, 43-44, 71-72

EEOC v. Dillon Companies,

310 F.3d 1271 (10th Cir. 2002)............................................................ 57

EEOC v. General Electric Co.,

532 F.2d 359 (4th Cir. 1975) .......................................................... 38-39

EEOC v. Grane Healthcare,

2014 WL 896820 (W.D. Pa. March 6, 2014) ...................................... 35

EEOC v. Hibbing Taconite,

266 F.R.D. 260 (D. Minn. 2009)........................................................... 36

EEOC v. JBS LLC,

940 F.Supp.2d 949 (D. Nev. 2013)....................................................... 36

EEOC v. JBS USA,

2013 WL 5812478 (D. Colo. Oct. 29, 2013).................................. 66, 69

EEOC v. Jillian’s of Indianapolis,

279 F.Supp.2d 974 (S.D. Ind. 2003)........................................ 23, 43-44

EEOC v. Keco Industries,

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

EEOC v. Kronos,

694 F.3d 351 (3d Cir. 2012)................................................................. 57

EEOC v. Mach Mining, LLC,

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

cert. granted, 134 S.Ct. 2872 (2014)......................................... 37,72-73

EEOC v. Michael Construction Co.,

706 F.2d 244 (8th Cir. 1983).............................................. 24-25, 54, 56

EEOC v. NCL America,

536 F.Supp.2d 1216 (D. Haw. 2008)................................................... 38

EEOC v. N.Y. News,

1985 WL 2158 (S.D.N.Y. July 26, 1985)............................................. 35

EEOC v. Philip Services Corp.,

635 F.3d 164 (5th Cir. 2011)............................................................... 36

EEOC v. Pierce Packing Co.,

669 F.2d 605 (9th Cir. 1982)................................... 24-25, 41-42, 55-56

EEOC v. Prudential Federal Saving & Loan Ass’n,

763 F.2d 1166 (10th Cir. 1985)............................................................ 72

EEOC v. Sears, Roebuck & Co.,

650 F.2d 14 (2d Cir. 1981)............................................................... 71-73

EEOC v. Shell Oil Co.,

466 U.S. 54 (1984)..................................................................... 34, 51, 57

EEOC v. Superior Temporary Services,

56 F.3d 441 (2d Cir. 1995).................................................................... 57

EEOC v. Swissport Fueling,

916 F.Supp.2d 1005 (D. Ariz. 2013).............................................. 36, 56

EEOC v. UPS,

587 F.3d 136 (2d Cir. 2009).................................................................. 57

Georator v. EEOC,

592 F.2d 765 (4th Cir. 1979).............................................. 36-37, 39, 72

Gibson v. Missouri Pacific Railroad,

579 F.2d 890 (5th Cir. 1978) .............................................................. 39

Groves v. Department of Corrections,

811 N.W.2d 563 (Mich. App. 2011) .............................................. 24, 48

Hankins v. Lyght,

441 F.3d 96 (2d Cir. 2006).................................................................... 55

In re City of New York,

607 F.3d 923 (2d Cir. 2010)................................................................. 68

In re Grand Jury Subpoena Dated July 6, 2005,

510 F.3d 180 (2d Cir. 2007).................................................................. 27

In re Sealed Case,

121 F.3d 729 (D.C. Cir. 1997)............................................................... 68

In re WorldCom, Inc. Securities Litigation,

346 F.Supp.2d 628 (S.D.N.Y. 2004)......................................... 24, 48-49

Jock v. Sterling Jewelers,

646 F.3d 113 (2d Cir. 2011).................................................................. 17

Martini v. Federal National Mortgage Ass’n,

178 F.3d 1336 (D.C. Cir. 1999)............................................................ 55

Marriott International Resorts v. United States,

437 F.3d 1302 (Fed. Cir. 2006)............................................................ 68

MCI LLC v. Rutgers Casualty Insurance Co.,

2007 WL 4258190 (S.D.N.Y. Dec. 4, 2007)............................. 24, 48-49

National Council of La Raza v. Dep’t of Justice,

411 F.3d 350 (2d Cir. 2005).................................................................. 66

National Wildlife Federation v. U.S. Forest Service,

861 F.2d 1114 (9th Cir. 1988).............................................................. 66

Newsome v. EEOC,

301 F.3d 227 (5th Cir. 2002)........................................................... 34-35

North Haven Board of Education v. Bell,

456 U.S. 512 (1982)............................................................................... 53

Occidental Life Insurance Co. v. EEOC,

432 U.S. 355 (1977)......................................................................... 33-34

Price Trucking Corp. v. Norampac Industries,

748 F.3d 75 (2d Cir. 2014).................................................................... 27

Rabin v. Flynn,

725 F.3d 628 (7th Cir. 2013)................................................................ 48

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997).......................................................................... 49-50

Serrano & EEOC v. Cintas Corp.,

699 F.3d 884 (6th Cir. 2012).................................................... 35-37, 44

Sims v. Trus Joist MacMillan,

22 F.3d 1059 (11th Cir. 1994).............................................................. 55

Tigue v. U.S. Department of Justice,

312 F.3d 70 (2d Cir. 2002)............................................................... 65-66

United States v. Farley,

11 F.3d 1385 (7th Cir. 1993).................................................... 65-66, 68

United States v. Madrid,

713 F.3d 1251 (10th Cir. 2013)............................................................ 48

United States v. Mead Corp.,

533 U.S. 218 (2001).......................................................................... 51-52

University of Pennsylvania v. EEOC,

493 U.S. 182 (1990)......................................................................... 34, 63

Walker v. UPS,

240 F.3d 1268 (10th Cir. 2001)............................................................ 55

Statutes, Regulations, and Rules

28 U.S.C. §1291(a)........................................................................................ 2

28 U.S.C. §1331............................................................................................. 2

28 U.S.C. §1345............................................................................................. 2

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

42 U.S.C. §2000e-2................................................................................ 32

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

42 U.S.C. §2000e-5(c)............................................................................ 54

42 U.S.C. §2000e-5(e)............................................................................ 52

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

42 U.S.C. §2000e-12(a).................................................................... 51-52

Americans with Disabilities Act, 42 U.S.C. §§12101 et seq.

42 U.S.C. §12117.................................................................................... 52

Americans with Disabilities Act Amendments Act,

Pub. L. No.110-325, 122 Stat. 3553 (2008)........................................ 52

Genetic Information Nondiscrimination Act of 2008,

Pub. L. No.10-233, 233 Stat. 881 (2008),

codified at 42 U.S.C. §§2000ff et seq.................................................... 52

42 U.S.C. §2000ff-6........................................................................... 52

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

___________________________

No. 14-1782

___________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

STERLING JEWELERS, INC.,

Defendant-Appellee.

___________________________________________

On Appeal from the United States District Court

for the Western District of New York

The Honorable Richard J. Arcara, District Judge

________________________________________________________

BRIEF OF

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS APPELLANT

________________________________________________________

STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission brought this enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., challenging an alleged nationwide pattern or practice of gender-based pay and promotion discrimination at Sterling Jewelers. District court docket number (“Doc.”)1. The district court had jurisdiction under 28 U.S.C. §§1331 and 1345 and 42 U.S.C. §2000e-5(f). On March 10, 2014, the district court adopted the magistrate’s Report, Recommendation, and Order (App-74(v1)) and granted Defendant’s motion for partial summary judgment, dismissing the claim alleging nationwide sex discrimination. See App.94(v1). Judgment was entered on March 11, 2014, dismissing the action with prejudice. App-96(v1). The Commission filed a timely notice of appeal, Fed.R.App.P.4(a)(1)(B), on May 12, 2014. App-97(v1). This Court has jurisdiction under 28 U.S.C. §1291(a).

STATEMENT OF THE ISSUE

Under Title VII, the Commission may bring suit challenging alleged unlawful employment discrimination once the agency has satisfied certain pre-suit administrative requirements, including a requirement to “investigate” the underlying charge(s) of discrimination. See 42 U.S.C. §§2000e-5(b), 2000e-5(f)(1). Courts generally hold that “the nature and extent of an EEOC [administrative] investigation into a discrimination claim [are] matter[s] within the discretion of that agency.” See, e.g., EEOC v. Keco Indus., 748 F.2d 1097, 1100 (6th Cir. 1984).

In this case, the magistrate acknowledged that the Commission did at least some investigation; it is undisputed that the other pre-suit requirements were satisfied and the employer knew that the Commission was pursuing nationwide claims of gender-based pay and promotion discrimination. Under these circumstances, did the district court err in dismissing the Commission’s Title VII enforcement action, over five years after suit was filed, on the ground that the Commission failed to investigate the claims of nationwide discrimination?

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from a judgment of the United States District Court for the Western District of New York dismissing the Commission’s Title VII enforcement action for failure to do a “nationwide investigation” before filing suit. Between 2005 and 2007, the Commission received and investigated nineteen charges against Sterling Jewelers, including several charges that expressly complained of a company-wide pattern or practice of gender-based discrimination in pay and/or promotion. App-74. During 2007 and 2008, the Commission participated in lengthy mediation sessions between the employer and the charging parties, during which expert statistical analyses, as well as other evidence, were exchanged and discussed. The Commission issued a reasonable cause determination in January 2008. In September 2008, the Commission sued Sterling, alleging that because of their sex, Sterling pays female retail sales employees less than similarly-situated male employees and denies female employees promotional opportunities for which they are qualified. Doc.1. In September 2013, Sterling moved for partial summary judgment seeking, inter alia, dismissal of the claim alleging a nationwide pattern or practice of sex discrimination. Doc.336; see Docs.356-61(exhibits). The Commission opposed the motion. Doc.362; see Docs.363-65 (exhibits). On January 2, 2014, following oral argument (App-193(v2): transcript), the magistrate issued a Report, Recommendation, and Order (“Recommendation”), recommending that Sterling’s motion be granted. App-74(v1). On February 7, the Commission filed objections to the Recommendation (Doc.385), and Sterling responded (Doc.388). On March 10, following oral argument (App-241(v1)), the district court adopted the magistrate’s Recommendation and ordered that the “action [be] dismissed with prejudice.” Doc.395 & related docket entry notation. Judgment was entered on March 11, 2014. App-96(v1).

2. Statement of Facts

a. The administrative proceedings.

Sterling Jewelers is the largest specialty fine jewelry company in the United States, by sales and number of stores. Headquartered in Akron, Ohio, the company operates a number of jewelry store chains, including Belden Jewelers, JB Robinson Jewelers, Marks & Morgan, Kay Jewelers, and Jared—the Galleria of Jewelry. http://www.sterlingjewelers.com. Evidence uncovered in the investigation indicates that all Sterling chains use the same forms and training materials, as well as largely identical job descriptions, and are covered by the same pay, promotion, and non-discrimination policies. See, e.g., App-1051-70 (v4)((job descriptions), App-1072-75 (v4) (compensation guidelines), App-1077-79 (v4)(career path, promotion/ transfer policy); App-1241-51 (v4)(EEO and communication policies, handbook excerpts); App-1307-08 (v4)(sexual harassment conduct code), App-1320-23 (v4)(ethics policy); App-1233(v4) (T.I.P. policy).

Although some work is seasonal, most Sterling employees work as part-time or full-time sales associates. They are paid by a combination of wages, commissions, and bonuses. See, e.g., App-1390 (v4)(Boyle); App-1775 (v5)(King); see also App-3636-37 (v8)(commission structure).

Sterling managers have substantial discretion to set pay rates. Many of the charging parties complained that employees often do not know whether they are being paid fairly because Sterling strictly prohibits employees from discussing their pay rates. App-1390 (v4)(Boyle); App-1775 (v5)(King); App-1597 (v5)(Follett); App-2078 (v6)(McConnell); App-2452 (v6)(Morse); App-2472 (v6)(Pagan); App-2973(v7) (Scroggins); App-3163 (v7)(Smith).

In addition, despite the size of the company, until 2007, Sterling employees interested in advancement were encouraged to advise their supervisors of their interest, but there was no way to register that interest officially. Various charging parties complained that employees were selected for promotion through the “tap-on-the-shoulder” method. App-1596 (v5)(Follett); App-2078 (v6)(McConnell); App-2452 (v6)(Morse); App-2973(v7)(Scroggins); App-3112-13 (v7)(Shahmirzadi); App-3134 (v7)(Shiver). In 2007, the company announced a “new process” for “expressing interest in promotional opportunities ... in the future.” App-1104 (v4)(announcement). The announcement specified that employees desiring advancement should complete a form on the Sterling intranet providing personal data and expressing interest in specific types of jobs. But, the announcement stressed, employees were “not posting for a specific job, rather, for an opportunity to be considered for promotion in the future.” Id. Because the company does not post vacancies, employees who complete the form may still not know what, if any, positions Sterling is seeking to fill even in their own stores. Cf. App-3112 (v7)(Shahmirzadi); App-3134 (v7)(Shiver).

Between 2005 and 2007, the Commission received nineteen sworn charges from current and former Sterling employees from across the country, including New York, Florida, California, Colorado, Texas, Missouri, Nevada, Massachusetts, and Indiana. See, e.g., App-1024(v4) (Jock: N.Y.); App-1680 (v5)(House: Cal.); App-2018--20 (v5)(Maddox: Colo., Texas); App-2027 (v6)(McConnell: Ind.); App-2471 (v6)(Pagan: Mo.); App-2844 (v7)(Rodrigues: Mass.); App-3111 (v7)(Shahmirzadi: Nev.); App-3451 (v8)(Wolf: Fla.). The women complained that they and “all similarly-situated women” at their chain and Sterling generally experienced gender-based discrimination in pay, promotion, or both. Sixteen women complained that the company engaged in a “continuing policy” or “pattern or practice” of sex discrimination. App-1390 (v4) (Boyle); App-1515-17 (v5)(Davies); App-1597 (v5)(Follett); App-1680 (v5)(House); App-1774-76 (v5)(King); App-2020 (v5)(Maddox); App-2452 (v6)(Morse); App-2472 (v6)(Pagan); App-2550 (v7)(Reed); App-2720 (v7)(Rhodes); App-2845 (v7)(Rodrigues); App-2973 (v7)(Scroggins); App-3112 (v7)(Shahmirzadi); App-3134 (v7)(Shiver); App-3163 (v7)(Smith); App-3220 (v8)(Souto-Coons); App-3452 (v8)(Wolf); see, e.g., App-3211(v7)( (noting Smith’s charge was “designated class”). At least six attested that they believed the complained-of practice occurred company-wide. App-2452 (v5)(Morse); App-2472 (v6)(Pagan); App-2720-21 (v7)(Rhodes); App-2973 (v7)(Scroggins); App-3134 (v7)(Shiver); App-3163-64 (v7)(Smith).

Laryssa Jock filed the first charge, without an attorney, with EEOC’s Buffalo office, in May 2005. App-1018 (v4)(charge); see also id. at 1019 (Notice and Request for Information). She complained that she and her “female coworkers” were paid less than similarly-situated male sales associates at a Belden Jewelers in Massena, New York. See also App-1024-25 (v4)(amended charge, alleging discrimination against her and “female employees of Sterling Jewelers” at her store and others).

Shortly after Jock filed her charge, five women filed charges with EEOC’s Tampa office, also alleging sex discrimination in pay and/or promotion. See App-1389-91 (v4)(Boyle); App-1774-76 (v5)(King); App-2548-50 (v7)(Reed); App-3220 (v8)(Souto-Coons); App-3451-53(v8)(Wolf). However, no other women from New York State filed charges until the following year. After investigating Jock’s individual charge, the Buffalo Office issued a notice of right to sue in September 2005. App-1014(v4).

In December 2005, Jock, now represented by counsel, requested reconsideration. The request noted that counsel was representing various women in Florida who were also complaining of gender discrimination in pay and/or promotion. App-1180-82(v4). Alerted to a possible pattern, the Commission responded by reinstating Jock’s charge and reassigning the investigation from Jennifer Carlo to David Ging. App-1012 (v4)(12/9/2005 Ging letter, Intent to Reconsider). Although an investigator in Florida had already begun investigating the Florida charges, those charges were also transferred to Ging. App-315(v2)(letter); see also App-1622-26 (v5)(Follett’s charge was initially investigated by another investigator before being transferred to Ging). As later charges were filed, they were also transferred to Buffalo and assigned to Ging.[1]

In 2005 and 2006, the Commission issued a number of requests for information (“RFI”) that were consistent with a nationwide investigation. For example, the Commission requested copies of Sterling’s company-wide pay, promotion, and anti-discrimination policies; company-wide job descriptions for sales associates and various management positions; information concerning the relationship between and among Sterling and its subsidiaries; the total number of Sterling employees nationwide; and copies of Sterling’s EEO-1 forms. See, e.g., App-1364-66 (v4)(Jock RFI); App-3544-46, 3626-29 (v8) (response to Wolf, Boyle, King, Souto-Coons & Reed RFIs, including 2004 company-wide EEO-1 report).

In addition, on October 2, 2006, the Commission asked Sterling to “identify any computerized or machine-readable files ... containing data on personnel activities,” such as dates of application and hire, employment history, training, work assignments, amounts of pay, and promotions, for Sterling and/or any of its sub-parts since January 1, 2004. See App-2896-97(v7). That autumn, however, Sterling and the charging parties had begun “working toward a private mediation” of the charges, including “an exchange of information suitable for that purpose.” See, e.g., App-950 (v3)(10/19/2006 letter from C.Janice to D.Ging). To facilitate the proposed mediation, Sterling requested, and the Commission agreed, to “defer” the October 2 information request. See id.

On December 5, 2006, in an effort to continue the investigation, the Commission renewed its request that Sterling identify its “computerized or machine-readable [personnel-related] files.” App-952-54(v3)(DExBB). Rather than comply with this request directly, Sterling sent Ging a letter, noting that the company had “invited” EEOC to participate in the mediation process. App-956-57 (v3)(12/27/2006 letter). The company also stated that it had agreed to produce “the relevant data” to the charging parties as part of the mediation process and, so, had asked them to “coordinate the production of relevant information with the EEOC.” Id. (thanking EEOC “in advance for [its] anticipated cooperation”).

Thereafter, the Commission did not subpoena any of the information that Sterling had failed to supply directly. However, the charging parties supplied the Commission with substantial “relevant information,” and although the Commission was not a party to the mediation sessions, the then-Regional Attorney of EEOC’s New York District Office, Elizabeth Grossman, participated in the mediation process.

The mediations are an unusual feature of the administrative process in this case. The parties made two main attempts to resolve the case before EEOC issued notices of right to sue. The first attempt took place in June through early October 2007, was governed by the Mediation and Confidentiality Agreement, along with several addenda, and ultimately proved unsuccessful. See App-3655-62(v8);(see also App-3682 (v8)(scheduling first mediation session); App-3683 (v8)(scheduling later sessions). The second attempt, an “early neutral evaluation” (“ENE”) agreed-to after the first mediation failed, took place in January and February 2008, was governed by the Fourth Addendum, an exhibit, and the Rules of Engagement, and also ultimately proved unsuccessful. See App-3663-74(v8).

The details of what transpired during the sessions are, of course, confidential, but the agreements spell out the general contours of the process. Initially, the two sides agreed to exchange documents and other materials in advance of the formal mediation; the materials would include expert analyses of pay and promotion data, using information supplied by Sterling. See App-3657-58(v8). In addition, Sterling agreed that if the mediation were unsuccessful — which it was — Sterling would promptly provide Ging with “the data produced in the mediation” (App-3660 (v8)(Addendum)) and EEOC could place all documents received from Sterling, except electronic data and statistical analyses, in its investigative files. App-3662(v8) (3d Addendum); see also App-3661(v8) (2d Addendum) (agreeing that EEOC’s “internal work product concerning its review of Sterling data” would be “protected from disclosure” by the deliberative process privilege and/or other privileges); App-3677-36(v8) (1/30-31/2007 emails between EEOC and Sterling, noting, e.g., that materials produced pre-mediation would become part of EEOC’s investigative files).

On October 11, 2007, the parties entered into an agreement regarding the ENE. That agreement provides that each side would “present experts to support their respective positions” to a mutually agreed-upon Neutral who would evaluate each side’s statistical issues and analyses. The Neutral would then evaluate the “legal sufficiency and persuasiveness of the [respective experts’] methodologies.” Fourth Addendum ¶3(a)-(b), App-3663(v8).

The parties also agreed that Grossman could “discuss her impressions, the data and documentation produced by Sterling” with Ging “and other EEOC personnel.” App-3664(v8) ¶5; cf. App-3651-52 (v8)(Lanier deposition, noting that an EEOC in-house expert also attended the ENE). In addition, EEOC would participate in any subsequent settlement negotiations and would be bound by any agreements the parties reached. App-3664 ¶6. Moreover, if it found cause on any charge, EEOC would “not have to conciliate any probable cause determination, conciliation having been undertaken through the Process.” Id. ¶7. At the same time, Sterling would not have to provide “additional information or documentation relating to the charges,” and the Commission would refrain from filing suit as long as the parties remained “engaged in the Process.” Id. ¶¶6, 8-9; id. at 3666(v8) (12/13/2007 Exhibit to 4th Addendum at 16(v)).

In November 2007, Ging sent letters to each side noting that the mediation had failed and that Sterling had agreed that Grossman would provide him with over 3000 documents, exchanged during the mediation, along with the tables and notes prepared by charging parties’ expert, Dr. Lanier. App-959-61 (v3)(undated letters). While acknowledging that the Commission would not send additional requests for information, Ging encouraged each party to submit any other information that the party “wished to be considered.” Id. Accepting Ging’s invitation, in November 2007, charging parties supplied a letter detailing the alleged discrimination, along with a stack of documents, including affidavits from numerous witnesses in various locales. App-App-1027, 1040-58 (v4)(11/30/2007 email, letter, and documents). As noted above, one of the exhibits consisted of Dr. Lanier’s numerous annotated tables. App-1111-58(4). The tables suggested that female employees as a group were promoted more slowly and earned less than similarly-situated male employees. See, e.g., App-1122-34(v4).

Sterling opted not to provide any additional information. Once reasonable cause was found, however, the company expressed disappointment that, in its view, the Commission “failed to consider the immense volume of evidence produced by Sterling.” App-980(v3) (1/14/2008 letter).

b. The LOD and private action

On January 3, 2008, the Commission issued a letter of determination (“LOD”) on all of the charges. App-998-1000(v4). Signed by Elizabeth Cadle, then-director of EEOC’s Buffalo office, the LOD found reasonable cause to believe that Sterling “subjected Charging Parties and a class of female employees with retail sales responsibilities nationwide to a pattern or practice of sex discrimination in regards to promotion and compensation,” in violation of Title VII and the Equal Pay Act. App-1000(v4). According to the LOD, “statistical analyses of pay and promotion data provided by [Sterling] reveal[ed] that [the company] promoted male employees at a statistically significant, higher rate than similarly-situated female employees and ... compensated male employees at a statistically-significant, higher rate than similarly-situated female employees.” In addition, “[w]itness testimony further corroborate[d] the allegations.” Id. Then, noting that, after finding cause, EEOC normally engages in conciliation, the LOD invited the parties “to join ... in a collective effort toward a just resolution of the matter.” Id.

On March 17, 2008, at charging parties’ request (App-973-74(v4) (3/6/2006 letter)), the Commission issued each charging party a notice of right to sue. See, e.g., App-971 (v4)(Jock’s notice). In June, charging parties brought a class arbitration with AAA, alleging pay and promotion discrimination. Following an appeal to this Court, the arbitration action remains pending. See Jock v. Sterling Jewelers, 646 F.3d 113, 115-18 (2d Cir. 2011) (discussing arbitration).

c. The EEOC litigation

On September 23, 2008, the Commission brought suit in the Western District of New York, alleging a pattern or practice of gender-based pay and promotion discrimination in violation of Title VII. The complaint includes claims under both disparate treatment and disparate impact theories. App-56. Two years later, the charging parties intervened in the EEOC action for the limited purpose of inclusion in the confidentiality order. Doc.139.

In November 2011, during a hearing before the magistrate on a proposed case management order, Sterling’s counsel observed that “the EEOC [had] conducted a nationwide administrative investigation.” App-132-33(v2). Objecting to the Commission’s insistence on a provision reserving the right to move to amend the complaint after discovery closed, counsel stated that it was “time for the EEOC to tell [Sterling] what the claims [were]” since the case had been pending since 2008, Sterling had produced thousands of documents, and the Commission had conducted a “nationwide administrative investigation.” Id.

Nevertheless, Sterling also took the position that it was entitled to do extensive discovery, including lengthy depositions of EEOC investigators, several years into the litigation, in order to “nail down” what the company characterized as the “scope of the [administrative] investigation.” App-170 (v2)(6/26/2013 hearing transcript at 12); cf. id. at 11-12 (magistrate: LOD is not persuasive evidence of scope of investigation). Absent such extensive discovery, the company argued, trying to challenge the investigation would be like “fighting with one hand tied behind [its] back.” Id. at 14.

In December 2011, over objections, Sterling deposed Investigator Jennifer Carlo, named by EEOC as a Rule 30(b)(6) witness, concerning the EEOC’s investigation. See App.665 (v3)(deposition). Carlo had reviewed all nineteen investigative files before her deposition, but her only previous involvement in the case was her 2005 investigation of Jock’s charge. In response to questions testing her memory of the files, Carlo repeatedly stated that the best answer would be in the files, but Sterling would not let her consult them.[2] When Sterling asked “what was reviewed [in reaching EEOC’s determination] above and beyond the charges, the position statements, and the charging parties’ counsel’s submissions,” Carlo answered: “the best source to give you an accurate answer would be in the files more than in my memory but whatever we have in the files.” App-888(v3) (emphasis added). Citing the deliberative process privilege, Carlo refused to answer questions concerning the preparation of the LOD, including what was relied on and by whom and whether the Commission had independently “validated” Dr. Lanier’s statistical tables. See, e.g., App-850 (v3) (“validated”), App-887 (“relied upon”).

In May 2013, over objections, the company deposed Investigator David Ging, who had largely deferred action on the case during the 2007-08 mediations and had had no involvement at all with it since suit was filed in 2008. Cf. App-628-29 (v3)(could not recall doing any investigation after LOD issued). Ging knew that he had investigated “all of the charges as class charges.” Id at 567 (“All means all.”). But despite having reviewed the files before his deposition, Ging had little memory of exactly what he had done during the investigation so long before. App-632 (v3)(“I don’t really recall much about my investigation, what I did or didn’t do”); id. at App-505 (3)(“I have no memory because [that particular incident] happened in 2006,” and “there may be no notes” because “I’m notoriously bad at keeping notes”).

In addition, Ging invoked the deliberative process privilege to certain questions, including whether he had verified the accuracy of Dr. Lanier’s tables (App-598(v3)); “who was involved” in the decision “to conduct a nationwide investigation” (App-627-28(v3)); what “statistical analysis” or “witness testimony” was referenced in the LOD (App-628-29(v3)); and what facts he had discovered that supported allegations in the complaint (App-635(v3)). When Sterling complained that the Commission, invoking privilege, refused to provide the company with supposedly relevant information, the magistrate responded that the Commission could not later cite previously undisclosed information to argue that the investigation was “greater” in scope than the documents reflect. See App-170(v2) (6/26/2013 hearing transcript at 10-12).

At the close of fact discovery, in September 2013, Sterling moved for “partial” summary judgment, arguing that the Commission had failed to conduct a “nationwide investigation” of the charges. In opposing the motion, the Commission argued that the administrative process is essentially unreviewable but even if it were reviewable, the Commission had satisfied its duty to investigate. It was undisputed that the charges alleged company-wide discrimination; the LOD found reasonable cause to believe that the allegations of nationwide discrimination were true; the company had notice of the nationwide scope of the claims; and the duty to conciliate was satisfied.

3. The Magistrate’s Report, Recommendation, and Order

In a Report, Recommendation, and Order (“Recommendation”) in January 2014, the magistrate recommended that Sterling’s motion be granted. Initially, the magistrate noted that five investigators had investigated the nineteen charges from across the country; that the Commission participated in the mediations; and that the LOD, citing statistical support, states that EEOC’s investigation indicated that Sterling subjected female retail sales employees nationwide to a pattern or practice of sex discrimination in pay and promotion. App-74-76 (v1)(Recommendation at 1-3).

Then, while acknowledging that courts “should not examine the sufficiency of the EEOC pre-suit investigation,” the magistrate stated that it could “examine whether the investigation occurred at all” as well as “the scope of that investigation” since the EEOC may challenge only those violations that it uncovers “during the course of its investigation.” Id. at 6 (citing EEOC v. CRST Van Expedited, 679 F.3d 657, 674 (8th Cir. 2012) (emphasis in CRST). “Courts have limited the EEOC’s complaint where it exceeds the scope of the investigation.” Id. (citation omitted). As examples of this principle, the magistrate cited EEOC v. Bloomberg, 967 F.Supp.2d 802, 813-14 (S.D.N.Y. 2013), and EEOC v. Jillian’s of Indianapolis, 279 F.Supp.2d 974, 980, 983 (S.D. Ind. 2003). App-79-80(v1)(Recommendation at 6-7).

Then, applying that principle to this case, the magistrate found no “triable issue of fact” as to whether the EEOC conducted a pre-suit “nationwide investigation” of Sterling’s employment practices. App-80(v1)(Recommendation at 7). Agreeing with Sterling, the magistrate concluded that the Commission failed to prove that any investigator did such an investigation. See 1-83(v1)(id. at 10).

The magistrate noted that Ging has little memory of what he did in the investigation. App-82(v1)(Recommendation at 9). And, the magistrate continued, EEOC could not rely on Ging’s testimony that he had investigated the charges as “class” charges since Ging did not specify whether he meant a “local,” “regional,” or “nationwide class.” App-82-83(v1)(id. at 9-10).

The magistrate disagreed with EEOC that Title VII commits the investigation, like conciliation, to the agency’s discretion and is not judicially reviewable. App-87-88(v1)(Recommendation at 14-15). The magistrate stated that “‘[T]he word “investigation” connotes a “thorough” or “searching inquiry.’” Id. (“ordinary or natural meaning”) (citing In re WorldCom, Inc. Sec. Litig., 346 F.Supp.2d 628, 678 (S.D.N.Y. 2004)); see also id. (citing MCI LLC v. Rutgers Casualty Ins. Co., 2007 WL 4258190, *6 (S.D.N.Y. Dec.4, 2007) (“‘inquire into a matter systematically’; ‘observe or study by close examination and systematic inquiry’”).

Further, the magistrate stated, the Commission may not simply gather information from others without independent analysis. App-89(v1)(Recommendation at 16) (citing Groves v. Dep’t of Corrections, 811 N.W.2d 563, 570 (Mich. App. 2011), and Rutgers Casualty, 2007 WL 4258190, at *7). And, the investigation must be “genuine”, which means that EEOC “cannot defer to the opinions of [the parties]” but must determine for itself “whether the charge has a factual basis.” App-88-89 (v1)(citing EEOC v. Pierce Pkg. Co., 669 F.2d 605, 609 (9th Cir. 1982); EEOC v. Michael Constr. Co., 706 F.2d 244, 252-53 (8th Cir. 1983) (emphasis and alterations added by magistrate).

The magistrate discounted EEOC’s concern that Sterling did not cooperate in the investigation. But for the parties’ agreement that Sterling need not provide additional information after the mediation, the magistrate stated, EEOC could have subpoenaed what it needed. App-83(v1)(Recommendation at 10). Moreover, the magistrate stated, despite being warned that asserting the deliberative process privilege might affect EEOC’s ability to prove that it did a nationwide investigation, the Commission repeatedly cited privilege to avoid answering Sterling’s inquiries into the LOD. App-85-87. In the magistrate’s view, the “only nationwide data” identified by EEOC was Dr. Lanier’s statistical analysis. But, the magistrate noted, EEOC had invoked the privilege to prevent Ging from answering whether “this was the analysis referred to” in the LOD and whether EEOC “took any steps to verify” that analysis. App-87-98. “Absent such proof,” the magistrate concluded, “there [was] no evidence that its investigation was nationwide.” App-90.

Finally, the magistrate stated, without relevant citation, while accusing Sterling of “diverting attention from the merits of EEOC’s allegations and Sterling’s defenses thereto,” the Commission “ignore[d] the fact that the absence of a nationwide pre-suit investigation is a defense to the EEOC’s nationwide pattern-or-practice claim.” App-90(v1)(original emphasis). And having failed once “to conduct a pre-suit investigation and to provide discovery as to the scope of that investigation,” EEOC should not be allowed to try again. “‘[W]here as here EEOC completely abdicate[d] its role in the administrative process, the appropriate remedy is to bar the EEOC from seeking relief ... and dismiss the EEOC’s Complaint.’” App-90-91 (v1)(citing Bloomberg, 967 F.Supp.2d at 816).

4. The District Court’s Decision

The district court rejected EEOC’s objections to the magistrate’s Recommendation and, for the reasons stated in the Recommendation, adopted the Recommendation, granted Sterling’s motion, and dismissed the case with prejudice. App-94.

STANDARD OF REVIEW

The district court’s interpretation of Title VII as permitting the dismissal of an otherwise meritorious enforcement action based on EEOC’s purported failure to do a nationwide administrative investigation is a legal issue that this Court reviews de novo. See Price Trucking Corp. v. Norampac Indus., 748 F.3d 75, 79 (2d Cir. 2014) (CERCLA interpretation). Review of a grant of summary judgment is also de novo. See id. The Court reviews rulings on the work-product privilege for abuse of discretion, determining whether the ruling rests on a legal error, rests on clearly erroneous factual findings, or, though not necessarily the product of either error, “cannot be located within the range of permissible decisions.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007).

SUMMARY OF ARGUMENT

The district court erred in dismissing this potentially meritorious Title VII action alleging that Sterling engaged in a nationwide pattern or practice of sex discrimination in pay and promotion. The court based its decision on the magistrate’s conclusion — issued over five years into the litigation — that EEOC failed adequately to investigate the nineteen charges before filing suit. There is simply no precedent for this ruling.

Title VII requires EEOC to satisfy certain pre-suit administrative requirements. The agency must investigate the underlying charge(s) to determine whether there is reasonable cause to believe that the allegations in the charge(s) are true. Where, as here, EEOC finds cause, it must issue an LOD stating those findings, notify the employer, and attempt to resolve the claims through conciliation.

Here, the magistrate and Sterling agreed that EEOC satisfied all of the pre-suit requirements except the investigation. Moreover, just two years before moving for summary judgment, Sterling itself stated in open court that EEOC had “conducted a nationwide administrative investigation.” Nevertheless, the magistrate concluded that EEOC “completely abdicated” its pre-suit administrative duties because, in the magistrate’s opinion, the investigation was infirm.

But courts agree that “the nature and extent” of an EEOC investigation are matters “within [EEOC’s] discretion,” and it is “error” for a district court to inquire into the “sufficiency” of the investigation. In part, this is because an investigation, even if it leads to a finding of reasonable cause, has no “determinative consequences” for an employer or charging party. A cause determination is not binding on either party; adjudication is the exclusive function of the courts where trial is de novo. Moreover, allowing an employer such as Sterling to do extensive discovery into the investigation and then challenge its sufficiency even years after suit is filed diverts the court and the Commission from the real purpose of the litigation — to determine if the employer violated Title VII.

The magistrate gave two reasons for recommending dismissal of the case. Both are flawed. First, the magistrate concluded that although it did investigate the nineteen charges, EEOC did not prove that it did a “nationwide investigation.” The proof failed, the magistrate explained, because EEOC (properly) invoked the deliberative process privilege to prevent its investigators from answering whether they “verified” or “validated” the statistical analysis in the investigative files and whether that analysis was the one referenced in the LOD. But having acknowledged that EEOC did investigate the charges, the magistrate’s insistence on proof of a “nationwide investigation” simply end-runs the ban on reviewing the sufficiency of the investigation. Furthermore, nothing requires EEOC to verify or validate a statistical analysis during the investigation — let alone prove that it did so. Nor was EEOC required to identify the statistical evidence referenced in the LOD but if it were required, that fact could easily be inferred from the fact that the investigative files contained only one statistical analysis.

Second, the magistrate improperly defined the word “investigation” as a “thorough” or “searching inquiry” and then faulted EEOC for doing something else. But that definition is ill-suited to Title VII. Indeed, if it had to “searchingly” investigate the 90,000+ charges it receives annually, EEOC would be buried under a mountain of unprocessed charges. Rather, as the agency charged with enforcing Title VII, EEOC has defined an “appropriate investigation” as one where the field office has enough evidence to determine whether the statute has or has not been violated. That definition is entitled to deference. It corresponds neatly with the purpose of an investigation — to determine whether there is reasonable cause to believe the allegations in the charge are true. And Congress has implicitly endorsed it. The magistrate did not deny that the LOD was adequately supported by the evidence.

In short, it was error to dismiss this potentially meritorious enforcement action based on the magistrate’s faulty conclusion that the Commission failed to prove that it adequately investigated the nineteen charges before filing suit. The judgment should be reversed.

ARGUMENT

The district court erred in dismissing this Title VII enforcement action based on the magistrate’s conclusion that the Commission failed to prove that it did a pre-suit “nationwide investigation” of charges alleging a pattern or practice of sex discrimination in pay and promotion.

The district court erred in dismissing this Title VII enforcement action based on the magistrate’s conclusion that the Commission failed to prove that it did a “nationwide” administrative investigation before filing suit. It is well-settled that courts do not evaluate the sufficiency of an EEOC administrative investigation, yet, despite statements to the contrary, that is effectively what the magistrate did here — evidence showed that the Commission did investigate, but, in the magistrate’s judgment, it was not enough. Moreover, it is undisputed that the other pre-suit requirements, including conciliation, were satisfied; Sterling had ample notice of the nationwide scope of the claims, from the charges and the LOD as well as the lengthy mediations; and just two years before moving for summary judgment, Sterling told the magistrate that the Commission had “conducted a nationwide administrative investigation.” Furthermore, even if the investigation were inadequate — which it was not — there is simply no authority for holding that a faulty administrative investigation, standing alone, is a complete defense to liability for an otherwise meritorious Title VII discrimination suit.

A. Title VII does not provide for judicial review of the sufficiency of EEOC’s pre-suit investigation.

Title VII authorizes the Commission to sue private employers such as Sterling to remedy unlawful employment practices, including sex-based discrimination in pay and promotion (42 U.S.C. §§2000e-2, 2000e-5(f)(1)), once the Commission satisfies certain administrative requirements. These requirements, which apply whether or not the Commission decides to sue, are set out in section 706(b) of Title VII, 42 U.S.C. §2000e-5(b) (requirements apply “whenever a charge is filed”).

The process begins with the filing of a charge. Upon receiving the charge, the Commission must serve notice on the employer, “make an investigation” of the charge, and determine whether “reasonable cause” exists to “believe the charge is true.” Id. §2000e-5(b). If it does find cause, the Commission issues a cause determination, notifies the employer, and “endeavor[s] to eliminate any such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion.” If the matter is not resolved in conciliation, the Commission “may bring a civil action” against the alleged discriminator. 42 U.S.C. §2000e-5(f)(1); see also Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977) (EEOC’s duties include investigating and attempting to settle disputes as well as conducting litigation).

This case concerns only one of these pre-suit requirements — the investigation. Over five years into the litigation, the magistrate agreed with Sterling that the Commission failed to satisfy its administrative duty to investigate.

But the Commission does not investigate in the abstract. As the Supreme Court stated, the pre-suit requirements constitute an “integrated, multi-step enforcement procedure” (Occidental, 432 U.S. at 329 (emphasis added)), so it is odd to extract and segregate out this one requirement — investigation — from all the others. Indeed, the “purpose” of an investigation is “to determine whether there is reason to believe [that the allegations in the charge] are true” — the next step in the procedure. EEOC v. Shell Oil Co., 466 U.S. 54, 71 (1984); accord Univ. of Pa. v. EEOC, 493 U.S. 182, 190 (1990); EEOC v. Keco Indus., 748 F.2d 1097, 1100 (6th Cir. 1984). If the agency finds no such reasonable cause, the Commission is directed to dismiss the charge and issue the charging party a notice of right to sue. If it does find cause, the Commission issues an LOD and initiates conciliation. Either way, the proceedings move to the next step in the administrative process. Here, Sterling concedes that the other requirements, including notice and conciliation, were satisfied.

While an “investigation” is required, Title VII does not define the word or “prescribe the manner” for doing one. See Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002). Nor does the statute provide for judicial review of the sufficiency of the agency’s investigation, set out a standard for assessing its sufficiency, or suggest a remedy for a faulty investigation since no prejudice has resulted. Accordingly, courts agree that the “nature and extent of an EEOC investigation into a discrimination claim is a matter within the [agency’s] discretion.” Keco, 748 F.2d at 1100; see CRST, 679 F.3d at 674 (quoting Keco); Newsome, 301 F.3d at 231 (same); EEOC v. Caterpillar, 409 F.3d 831, 832-33 (7th Cir. 2005) (refusing to review the scope of EEOC’s investigation and strongly suggesting that it is “not a justiciable issue”).

In addition, as the magistrate here acknowledged, courts addressing the issue agree that it is “error” for a district court to “inquire into the sufficiency of the Commission’s investigation.” Keco, 748 F.2d at 1100; EEOC v. N.Y. News, 1985 WL 2158, *1 (S.D.N.Y. July 26, 1985) (same, adding that “EEOC has full authority to investigate and to decide whether reasonable cause exists”); see also EEOC v. Grane Healthcare, 2014 WL 896820, *13-*14 (W.D.Pa. March 6, 2014) (inquiring into the sufficiency of the investigation “would propel the court into the domain which Congress has set aside exclusively for the administrative agency”)(citation omitted).

Stated differently, courts “have no business limiting the suit to claims that the court finds to be supported by the evidence obtained in a Commission’s investigation.” Caterpillar, 409 F.3d at 832-33; see also, e.g. Serrano & EEOC v. Cintas Corp., 699 F.3d 884, 904 (6th Cir. 2012) (citing Keco); EEOC v. BOK Fin. Corp., 2014 WL 504074, *1 (D.N.M Jan. 28, 2014) (adequacy of investigation is “non-justiciable”); EEOC v. JBS LLC, 940 F.Supp.2d 949, 964 (D.Nev. 2013) (court will not review sufficiency); EEOC v. Hibbing Taconite, 266 F.R.D. 260, 272-73 (D.Minn. 2009)(not “substance” of investigation). To the extent they review the process at all, courts normally find that the requirement is satisfied if the Commission does “some” investigation; “[w]hether the [agency] could or should do more is within the discretion of the EEOC.” EEOC v. Cal. Psych. Transitions, 725 F.Supp.2d 1100, 1112-14 (E.D.Cal. 2010); accord EEOC v. Swissport Fueling, 916 F.Supp.2d 1005, 1041 (D.Ariz. 2013).

There are several reasons for this deferential approach. First, as noted above, the purpose of the investigation is to determine whether there is a basis for the charge, so assessing that process would require the court to decide whether the investigation did or did not allow the Commission to make that determination. This would require the court to review the cause (or no-cause) finding. But where, as here, the employer had ample notice of the scope of the claims, the “existence of probable cause to sue is generally and in this instance not judicially reviewable.” See Caterpillar, 409 F.3d at 832; Georator v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) (stating “court will not determine whether substantial evidence supported the Commission’s pre-adjudication finding of reasonable cause”).

And, in any event, it is the duty to conciliate, not investigate, that, as one court put it, lies “at the heart of Title VII.” EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1260 (11th Cir. 2003)); cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (noting Congress’s intent that “cooperation and voluntary compliance” be the preferred means of achieving Title VII’s objectives). Rather than inquire into the sufficiency of the investigation, therefore, courts should instead determine whether the language in the LOD and proposed conciliation agreement (if any) gave the employer sufficient notice of the claims EEOC intends to litigate. See Cintas, 699 F.3d at 904 (court should determine whether EEOC’s efforts to conciliate asserted claims placed employer on notice of “the prospect of suit”); see also EEOC v. Mach Min., 738 F.3d 171, 184 (7th Cir. 2013) (stating that review of administrative procedures is “satisfied” if “EEOC had pled on the face of its complaint that it has complied with all procedures required under Title VII and the relevant documents are facially sufficient”), cert. granted, 134 S.Ct. 2872 (2014).

Second, and relatedly, allowing courts to delve into the sufficiency of the investigation or look behind the cause finding would distract the courts and parties — as it did here — from the “‘main purpose of the litigation: to determine whether [the defendant] has violated Title VII.’” Keco, 748 F.2d at 1100 (citing EEOC v. Chicago Miniature Lamp Works, 526 F.Supp. 974, 975 (N.D. Ill. 1981)); accord, e.g., EEOC v. NCL Am., 536 F.Supp.2d 1216, 1221 (D.Haw. 2008). It would also “turn every Title VII suit into a two-step action”: first to litigate the question of whether EEOC had a reasonable basis for its cause finding, and if so, only then to litigate the merits of the action. Keco, 748 F.2d at 1100 (citing Chicago Miniature, 526 F.Supp. at 975); see also EEOC v. Gen’l Elec. Co., 532 F.2d 359, 370 n.31 (4th Cir. 1975) (courts should not “test the factual basis for Commission action” since “the [substantial] potential for delay and diversion” does not “outweigh” the “limited benefit” to be gained from doing so).

Finally, and importantly, scrutinizing the investigation closely is at odds with a statutory scheme that does not confer that administrative step with “determinative consequences” for either the charging party or the employer. Georator, 592 F.2d at 768-69; see also Gibson v. Missouri Pac. R.R., 579 F.2d 890, 891 (5th Cir. 1978)(“nothing done or omitted by EEOC” during an investigation affects a party’s rights). This is because “Title VII does not provide the Commission with direct powers of enforcement. The Commission cannot adjudicate claims or impose administrative sanctions. Rather, final responsibility for enforcement of Title VII is vested with federal courts.” Gardner-Denver, 415 U.S. at 44; see also Gen’l Elec., 532 F.2d at 370 (“Adjudication is the exclusive function of the courts under the Act.”). Accordingly, even if the investigation results in a finding of reasonable cause, that finding is not judicially enforceable. Rather, the process simply moves on to conciliation. If conciliation fails, the Commission (or the charging party) may bring an enforcement action in federal district court, but the proceedings there would be de novo. See, e.g., Georator, 592 F.2d at 767.

Thus, if an employer like Sterling believes that the LOD lacks a sufficient evidentiary basis, the employer can raise that concern with the Commission. EEOC regulations contemplate that the Commission may, in appropriate circumstances, reconsider a cause determination. See 29 C.F.R. §1601.21(b). And if the Commission then brings a lawsuit that is lacking in merit, the employer has the usual remedies including summary judgment on the merits and, in appropriate cases, attorney fees or Rule 11 sanctions. But there is simply no legal authority for what the magistrate did here: allow the employer to engage in extensive discovery into the investigation (despite counsel’s comment that the Commission had conducted a “nationwide administrative investigation”); divorce the investigation from its purpose and all other aspects of the administrative process — satisfaction of which is not disputed; and then dismiss an otherwise meritorious enforcement action based solely on perceived inadequacies in the investigation.

B. The magistrate erred in reviewing the sufficiency of the Commission’s investigation.

While the magistrate here acknowledged that it should not review the sufficiency of the Commission’s investigation, it concluded that it nevertheless could and should determine whether the Commission had conducted an appropriate investigation. See App-79-80(v1)(Recommendation at 6-7). However, the magistrate’s analysis in making this determination for the most part boils down to a review of the sufficiency of the investigation.

1. While purporting to examine the existence and/or scope of the investigation, the magistrate actually considered its “sufficiency.”

The magistrate noted that courts may determine “whether an investigation occurred at all” and may assess “the scope of the investigation.” App-79(v1)(Recommendation at 6). Accordingly, the magistrate indicated that it would examine whether the Commission investigated and, if so, whether the scope of the investigation was sufficient, given the claims alleged in the lawsuit. App-79-80(v1).

On the first point, the magistrate did not flesh out how it would determine whether any investigation occurred “at all.” An example of a case where there was no investigation — or cause finding or conciliation — is Pierce Packing, 669 F.2d 605. There, the Commission piggy-backed on a Labor Department investigation and then entered into a pre-determination agreement with the employer. Later, after an “on-site compliance review,” the Commission wrote to the employer, identifying new incidents of perceived discrimination and seeking a new or supplemental agreement. When the employer rejected some proposed changes, the Commission sued, alleging new unlawful employment practices as well as breach of the settlement agreement. Id. at 607. The court of appeals affirmed the dismissal of the suit (on jurisdictional grounds) for failure to investigate, find cause, and conciliate, reasoning that the Commission was attempting to “use the [earlier] agreement as a springboard to [later] court enforcement.” 660 F.2d at 608 .

This case is nothing like Pierce Packing. Not only does Sterling admit that all of the other administrative requirements were satisfied, but the magistrate acknowledged that the Commission investigated nineteen charges from around the country. App-74(v1)(Recommendation at 1). And while the magistrate found Ging’s testimony —that he investigated all of the charges as “class” charges — to be ambiguous since he did not specify whether he meant “local,” “regional,” or “nationwide” classes (App-82-83), at a minimum, that evidence indicates that he investigated the nineteen charges from around the country as local or regional class charges. Thus, even if nothing else had happened, under the magistrate’s own assessment, an investigation occurred. The magistrate simply deemed it insufficient. The sufficiency of the investigation should not be reviewed.

Turning to “scope,” the magistrate cited three examples of cases addressing the “scope of the investigation.” App-79-80(v1) (Recommendation at 6-7) (citing CRST, Jillian’s, and a 2013 decision in Bloomberg). The scope cases focus on notice and conciliation. According to those courts, the charge, LOD, and conciliation proposal as well as the investigation in those cases did not forecast the claims the Commission sought to pursue in court. Thus, in CRST and Jillian’s, the courts determined that the Commission investigated, found cause, and conciliated a handful of individual charges and then attempted to pursue broader claims in court. See CRST, 679 F.3d at 676-78 (investigated three charges, attempted to seek relief for all other potential victims it discovered in litigation); Jillian’s, 279 F.Supp.2d at 979-82 (investigated males in one city based on four individual charges, but, after some discovery, attempted to amend the complaint to address a nationwide class). Conversely, in a 2013 decision, the court in Bloomberg concluded that the Commission conciliated and brought class claims but then attempted to litigate individual claims for relief. 967 F.Supp.2d at 813-14. In all three cases, this perceived mismatch raised concern that the employer lacked notice of its full potential exposure and a fair opportunity to settle the claims out of court.

This case is nothing like CRST, Jillian’s, or Bloomberg. Here, there is no question that Sterling knew that the Commission was pursuing nationwide claims: the charges, LOD, and mediation/ conciliation all addressed nationwide discrimination. Moreover, Sterling had ample opportunity to resolve the case out of court during the year-long mediation/conciliation. There were no surprises. Cf. Cintas, 699 F.3d at 904 (employer had notice EEOC was investigating class-wide instances of discrimination because LOD stated as much). Thus, even assuming Jillian’s is still good law after Caterpillar (a later Seventh Circuit case holding that the investigation is not reviewable), those cases do not support the ruling in this case. Nothing there suggests that where, as here, the employer had ample notice and opportunity to conciliate the full scope of the case, an imperfect investigation, by itself, would justify dismissing an otherwise meritorious Title VII enforcement action.

2. There is no standard for deciding whether a

“nationwide investigation” occurred.

The magistrate reasoned that it should determine more than just whether “an investigation occurred”; rather, the magistrate should determine whether the Commission did what the magistrate considered to be a “nationwide investigation.” See App-80(v1). As noted above, Title VII contains no standards by which an appropriate investigation can be measured; that is doubly true for a “nationwide investigation,” a term that does not even appear in the statute. This strongly suggests that it is matter within the Commission’s discretion.

Here, while concluding that, as a matter of law, the Commission failed to prove that it did a “nationwide investigation,” the magistrate never identified the standard it was using to determine that the investigation was infirm. If, as the magistrate acknowledged, the nineteen charges from around the country were investigated as a group of at least “local” or “regional” class charges, that alone might well have allowed the Commission to find reasonable cause to believe that the allegations of nationwide discrimination were true.

However, the magistrate may have assumed that a “nationwide investigation” requires statistical evidence. If so, the Commission satisfied that requirement. Dr. Lanier’s nationwide statistical analyses were in the investigative files. And, during the mediation, the Commission also had access to Sterling’s expert analyses as well as both parties’ arguments for and against the respective analyses.

Nevertheless, the magistrate reasoned, the Commission could not prove that “its investigation was nationwide” because there was no evidence that the “statistical analyses” mentioned in the LOD were in fact Dr. Lanier’s analyses or that the Commission “validated” or “verified” those analyses. App-89-90(v1)(Recommendation at 16-17). But the fact that the only “statistical analyses” in the files were Dr. Lanier’s raises a strong inference that they are what the LOD was referring to. This inference is strengthened by Carlo’s testimony that in reaching the cause determination, the Commission reviewed “whatever we have in the files.” App-888(v3). Moreover, the magistrate pointed to no authority, nor is there any, for its assumption that the Commission must “verify” or “validate” the analyses, let alone prove that it did so, for its actions to count as an investigation. In essence, therefore, the magistrate simply concluded that the Commission had not done enough to satisfy the magistrate’s own interpretation of what a “nationwide investigation” should entail. That was a review of the sufficiency of the investigation, not its existence.

3. The magistrate improperly defined the word “investigation” in cases under federal anti-discrimination law.

While providing no standards for an adequate “nationwide investigation,” the magistrate did offer its own definition of the word “investigation.” App-88(v1)(Recommendation at 15). The magistrate rejected the Commission’s argument that the absence of any statutory definition of the word confirms that Congress intended that it be “a matter within the discretion of the [Commission].” Rather, the magistrate opined, the word should be given what, in the magistrate’s view, was its “ordinary and natural meaning.” According to the magistrate, the word “investigation” “connotes a ‘thorough’ or ‘searching inquiry.’” App-88-89(v1) (or “‘to observe or study by close examination and systematic inquiry’”). And, the magistrate added, the inquiry must be proactive, involving “independent analysis.” App-89-90(v1). To support that definition, the magistrate quoted sentence fragments, taken out of context, from disparate sources, unrelated to federal discrimination law, including a discussion of the due diligence standard for a securities underwriter (In re WorldCom, 346 F.Supp.2d at 678); an insurance company’s response to untimely notice of a claim (Rutgers Casualty, 2007 WL 4258190, *6); and the application of a state constitutional provision to a public contract bidding process (Groves, 811 N.W.2d at 570). There are several problems with this approach.

The definition simply end-runs the ban on reviewing the sufficiency of an investigation. A court cannot determine whether an “inquiry” was “thorough” or “searching” without assessing the sufficiency of the efforts.

Moreover, there is no one-size-fits-all understanding of the word “investigation” to mean a proactive exhaustive inquiry. An “investigatory stop,” for example, is by definition “brief” and “minimally intrusive.” See, e.g., Rabin v. Flynn, 725 F.3d 628, 637 (7th Cir. 2013); U.S. v. Madrid, 713 F.3d 1251, 1257 (10th Cir. 2013) (“brief and nonintrusive”).

Furthermore, in cobbling this definition together, the magistrate failed to consider the factors that the Supreme Court has identified as relevant to interpreting Title VII. According to the Court, “[t]he plainness or ambiguity of statutory language” should be determined by reference not only to the language itself, but also to “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997).

Here, had the magistrate considered “context,” it would have recognized that the disputed word concerns an administrative investigation having no determinative consequences, not an underwriter’s investigation that, if flawed, could be the basis for a Securities Act violation against the underwriter (In re WorldCom, 346 F.Supp.2d 628), or an insurance agency’s investigation that would determine the company’s liability for prejudgment interest (Rutgers Casualty, 2007 WL 4258190). Unlike those other entities, the Commission investigates solely to determine whether there is or is not reasonable cause to believe that Title VII or another federal anti-discrimination statute has been violated. This context shows that Congress delegated to the Commission (the expert on reasonable cause determinations), not to courts or the employer, the authority to control the investigation and other aspects of the administrative process.

Similarly, had the magistrate considered the broader context, it would have recognized that the Commission does not need to conduct a proactive, “thorough” or “searching inquiry” into all 90,000+ charges it receives annually. For example, where an independent contractor files a charge, an exhaustive investigation into the merits of her allegations would be pointless since independent contractors are not covered by Title VII. Cf. Baba v. Japan Travel Bureau Int’l, 165 F.R.D. 398, 399 & n.2 (S.D.N.Y. 1996), aff’d, 111 F.3d 2 (2d Cir. 1997). Given the agency’s resources, any such requirement would quickly bury the Commission under a mountain of unprocessed charges.

Thus, however suitable the magistrate’s definition of “investigation” may be in other contexts, it does not apply to Title VII or the other laws the Commission enforces. Rather, in this context, since 1995, pursuant to its authority to interpret and enforce federal anti-discrimination laws, the Commission has determined that the “investigation to be made in each case” should simply “be appropriate to the particular charge, taking into account the EEOC’s resources.” See Priority Charge Handling Procedures (“PCHP”), §II.D)(1) INVESTIGATION, included in the Appendix at App-3691-96(v8).[3] An “appropriate investigation” is “one where the field office determines that a statute has been violated or that there is sufficient information to conclude that further investigation is not likely to result in a [reasonable cause] finding.” See App-2696. To that end, investigations should involve “only that amount of evidence needed to make an informed decision” on the merits of the charge. Id. No less. No more.

Unlike the magistrate’s definition, this definition corresponds neatly with the purpose of an investigation — to determine whether there is reasonable cause to believe the statute had been violated. See, e.g., Shell Oil, 466 U.S. at 71. As a reasonable interpretation of laws the Commission enforces, it is entitled to deference. See EEOC v. Commercial Office Prods., 486 U.S. 107, 115 (1988) (“EEOC’s interpretation of ambiguous language [in Title VII] need only be reasonable to be entitled to deference”); cf. U.S. v. Mead Corp., 533 U.S. 218, 227 (2001) (“[A]gencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered.”); 42 U.S.C. §2000e-12(a) (authorizing EEOC to “issue, amend, or rescind suitable procedural regulations”).

Moreover, in the years since the Commission adopted the PCHP, Congress has enacted three pieces of legislation addressing employment discrimination: the Lilly Ledbetter Fair Pay Act, Pub. L. No.111-2, 123 Stat. 5 (2009) (amending §706 of Title VII); the Americans with Disabilities Act Amendments Act (“ADAAA”), Pub. L. No.110-325, 122 Stat. 3553 (2008) (amending the Americans with Disabilities Act (“ADA”)); and the Genetic Information Nondiscrimination Act of 2008 (“GINA”), Pub. L. No.10-233, 233 Stat. 881 (2008). Both the ADA and GINA incorporate by reference Title VII’s charge-processing requirements (42 U.S.C. §12117 (“ADA”), 42 U.S.C. §2000ff-6 (GINA)), without altering the Commission’s interpretation of those requirements; see also Lilly Ledbetter, Pub.L.111-2 §3 (adding new subsections to 42 U.S.C. §2000e-5(e) without otherwise changing §2000e-5). Where an agency’s interpretation of a statute has been brought to Congress’s attention, and Congress has not sought to alter that interpretation although it has amended the statute in other respects, “then presumably the legislative intent has been correctly discerned.” See N.Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535 (1982).[4]

Thus, the magistrate was mistaken in defining the word “investigation” in a vacuum, without considering the purpose or context of the statutory requirement, and then deciding that the Commission’s investigation was flawed because it failed to match that definition. In fact, to find that the Commission failed to satisfy its duty to investigate, the magistrate would have to determine that the investigation was not “appropriate to the particular charge[s]” because it did not allow the Commission to determine whether there was reasonable cause to believe the statute had been violated. But the magistrate did not find the LOD to be deficient. As noted above, where the employer had ample notice of the scope of the claims, the “existence of probable cause to sue is generally and in this instance not judicially reviewable.” See Caterpillar, 409 F.3d at 832.

4. The other sentence fragments quoted by the magistrate do not advance the magistrate’s conclusion that the Commission failed to satisfy its duty to investigate.

Without attempting to tie these descriptors to the “ordinary or natural meaning” of the word, the magistrate also opined that when doing an investigation, the Commission “‘cannot defer to the opinions of [the parties]’” but must “‘determine for itself,’” “‘independent[ly],’” whether “‘the charge has a factual basis.’” App-88-89(v1)(Recommendation at 15-16) (citing, e.g., Pierce Packing and Michael).[5] As noted above, the Commission has satisfied its duty to investigate when it has obtained enough information, by whatever means the agency deems appropriate, to determine whether there is reasonable cause to determine whether the allegations in the charge are true. The scattered sentence fragments from Title VII cases, to the extent they are relevant at all, are not to the contrary.[6]

Pierce Packing, discussed above, holds that the Commission cannot “leapfrog” the pre-suit administrative requirements to challenge alleged new violations of Title VII merely because some of the challenged incidents also allegedly violate an earlier pre-determination “settlement” (not “conciliation”) agreement. Since the Commission there had never investigated, issued an LOD, or attempted conciliation, the Court concluded that it lacked jurisdiction over the claim. The Court reasoned that because the suit was “to cure alleged unlawful employment practices,” the “mandates of Title VII, not general principles of contract law, dictate the procedures which the EEOC must adhere to.” Id. at 608. Later courts cite the case for its focus on the importance of the LOD and conciliation as prerequisites for suit. See, e.g., Swissport, 916 F.Supp.2d at 1036; see also EEOC v. Philip Servs. Corp., 635 F.3d 164, 168 (5th Cir. 2011) (noting “conciliation is the preferred means of achieving [Title VII] objectives,” citing Pierce Packing).

Michael does not concern the sufficiency of an EEOC investigation; indeed, the Commission was attempting to enforce a subpoena during its investigation. Rejecting an argument that the employer may choose what information, if any, to produce in an investigation, the court concluded that the Commission must decide for itself what it needs to make a reasonable cause determination. 706 F.2d at 252. This unremarkable ruling is consistent with the Commission’s view of its authority to control the investigation. But it does nothing to advance the magistrate’s view that the Commission insufficiently investigated the claims in this case.

The magistrate also suggested that the Commission acted improvidently in agreeing not to subpoena information from Sterling since the charging parties were providing it voluntarily. See App-83(v1)( id. at 10). However, whether to seek a subpoena is a matter well within the Commission’s discretion. While the Commission may subpoena necessary information that a recalcitrant employer refuses to produce, doing so greatly prolongs the administrative process. Though supposedly “summary” in nature (EEOC v. Dillon Cos., 310 F.3d 1271, 1277 (10th Cir. 2002)), subpoena enforcement proceedings easily add two or more years to an investigation. See, e.g., EEOC v. UPS, 587 F.3d 136 (2d Cir. 2009) (enforcement petition filed November 2007; appeal resolved November 2009); EEOC v. Superior Temp. Servs., 56 F.3d 441 (2d Cir. 1995) (subpoena issued November 1992, appeal resolved June 1995); compare EEOC v. Shell Oil Co., 466 U.S. 54 (1984) (defendant’s motion to quash filed September 1980, enforcement petition filed February 1981, appeal decided April 1982, Supreme Court decision issued April 1984); see also EEOC v. Kronos, 694 F.3d 351 (3d Cir. 2012) (subpoena issued March 2008, first appeal decided September 2010, second appeal decided September 2012)). And, of course, once the court enforces the subpoena, the case simply goes back for production of the materials and further investigation, followed by the LOD and, if cause is found, by efforts to resolve the case voluntarily, in conciliation. Even after that, the Commission could sue, challenging the alleged discrimination, only if conciliation failed and the case were deemed important enough to become one of the fewer than 200 enforcement actions filed each year. Thus, where possible, the Commission does what it did here — obtain the materials it needs to make a reasonable cause finding without resorting to a subpoena. The magistrate’s implicit criticism of that decision is unfounded.

Nor is there any preference for information received from the employer over information obtained from other sources. To the contrary, the regulations specify that the Commission “will accept any ... evidence with respect to the allegations of the charge which the person claiming to be aggrieved ... or the [employer] wishes to submit.” 29 C.F.R. §1601.15(a). In any event, here, the Commission obtained information from the charging parties as a courtesy to Sterling, who had asked to be excused from providing the same information twice, once to charging parties and again to the Commission. App-956-57(v3) (12/27/2116 letter). Because the evidence the Commission obtained from the charging parties, added to the evidence supplied by the company, allowed the Commission to make a reasonable cause determination, the magistrate should have concluded that Commission satisfied its duty to investigate the allegations in the charges.

5. The Commission investigated the allegations of nationwide sex discrimination by Sterling.

Contrary to the magistrate’s recommendation, the Commission satisfied its pre-suit duty to investigate the nationwide allegations in the charges. As noted above, the purpose of an investigation is to determine whether there is reasonable cause to believe that the allegations in the charge (along with any discrimination uncovered in the investigation) are true. Once the Commission achieves that goal, it can and should move on the next step in this “integrated, multi-step procedure,” the LOD.

Here, before issuing the LOD, the Commission obtained sufficient evidence to make a cause determination. In addition to information specific to the charging parties and their stores, the Commission requested information relevant to a company-wide investigation. For example, the Commission sought information about the corporate structure and the number of male and female employees nationwide; the Commission also requested copies of the company’s EEO-1 reports; applicable job descriptions; nationwide pay, promotion, and anti-discrimination policies; and information about the personnel-related company data bases, which would apply nationwide. While Sterling did not provide all of the requested information directly to the requesting investigator, the charging parties filled in the gaps and more.

Furthermore, the Commission participated in the mediations where expert and other evidence was exchanged and discussed. Because the EEOC representative was authorized to share her impressions with “other EEOC personnel,” it is reasonable to infer that she did so not only with Ging but with others including the office director, who signed the LOD. The LOD sets out the evidentiary basis for the reasonable cause finding.

The magistrate found insufficient evidence that any investigators did a nationwide investigation. App-81(v1)(Recommendation at 10). But Title VII does not require that an investigation be conducted by an “investigator.” The statute says simply that the Commission shall “make an investigation”; “investigators” are not mentioned. 42 U.S.C. §2000e-5(f)(1) (emphasis added); see also 29 C.F.R. §1601.15(a) (stating that investigation may be made “by the Commission, an investigator, or any other representative designated by the Commission”). The office director, not an investigator, signed the LOD, so whether Ging, for example, remembered looking at affidavits or Dr. Lanier’s tables four or more years earlier says nothing about whether the Commission was aware of the statistical evidence and other materials proffered by the parties. By narrowly considering only what the investigators could remember and reveal without disclosing privileged information (see generally App-84-86(v1)(checklist of information Sterling was unable to obtain from Ging and Carlo)), the magistrate overlooked the involvement of the other EEOC personnel.[7]

Thus, rather than scrutinize every step in the Commission’s investigation and permit exhaustive discovery into that process, the magistrate should simply have looked at the charges, the LOD, and the stated reasons for the finding of reasonable cause. If questions about notice or the investigation’s scope could not be answered from those documents, the magistrate could also have looked at the investigative files and/or Requests for Information — which the Commission, per its usual practice, had provided to Sterling during discovery (see Doc.109-2 at 4 (Decl.§18)). From the face of these documents, the magistrate could ascertain that the Commission reasonably could make a cause determination. Since none of the other pre-suit requirements were at issue and Sterling was fully aware of its potential exposure — and Sterling had acknowledged the Commission’s “nationwide administrative investigation” — the magistrate should have denied Sterling’s requests for discovery as well as for summary judgment.

There are important policy reasons for holding that the pre-suit investigation is a matter within the Commission’s discretion and, absent truly exceptional circumstances, unreviewable in the district court. Significantly, even if the investigation were less than exhaustive, there would be no cognizable prejudice to the employer. As noted above, nothing said or done at any stage in the administrative process has any determinative consequences.

Yet, if, as the district court here held, employers were free to challenge any alleged defect in the investigation and, if successful, avoid liability for the underlying claim of discrimination, all employers would have reason to do what Sterling did here — drag their feet during the investigation and then delve into the Commission’s pre-suit activities during discovery in hopes of developing a non-merits-based challenge. This would seriously distract the Commission and the court from the real issue at hand — the alleged discrimination. Cf. Univ. of Pa., 493 U.S. at 194 (refusing to recognize a privilege for peer review materials, reasoning that the Court was “reluctant to place a potent weapon in the hands of employers who have no interest in complying voluntarily with the Act, who wish instead to delay as long as possible investigations by the EEOC”).

Moreover, concerns about having a court find that they had conducted an inadequate investigation would spur investigators to leave no stone unturned. This would not benefit employers, who would be subject to ever more detailed requests for information and, if the employer were unresponsive, to subpoena enforcement actions. Investigators would also have to document every move carefully lest, as here, years later, they were questioned about exactly what they did and looked at at each step in the investigation. As a practical matter, the Commission believes that this would cause the backlog of unprocessed charges to balloon while causing unrepresented charging parties’ charges to get short shrift. And as Keco predicted (748 F.2d at 1100), it would convert every litigation into a two-step analysis where the merits were reached only if the Commission could satisfy the court — even years after suit was filed — that the LOD was fully supported by an exhaustive pre-suit investigation. Title VII and the public interest would not be well-served by this result.

C. The magistrate erred in dismissing this enforcement action because the Commission refused to waive the deliberative process privilege.

As the magistrate acknowledged, the Commission, like other government agencies, may assert the deliberative process privilege to shield certain information concerning its decisionmaking processes from disclosure during discovery. Nevertheless, the magistrate concluded that the Commission could not satisfy its pre-suit duty to investigate because, during discovery, the Commission, arguing that the information was privileged, refused to disclose what the agency did and relied on in making the reasonable cause determination. See generally App-83-90(v1)(Recommendation at 10-17). In effect, the magistrate determined that the Commission could prove that it did a sufficient investigation only by waiving the deliberative process privilege and disclosing all aspects of its pre-suit deliberations. Yet, because the information Sterling was seeking was irrelevant to the merits of the discrimination claim and to any real defense to that claim, Sterling did not and cannot make a sufficient showing of particularized need for the information to outweigh the Commission’s privilege claim. The magistrate therefore erred in holding that the Commission’s refusal to waive the deliberative process privilege and disclose the privileged information justified dismissal of the suit.

The Federal Rules permit discovery of “any nonprivileged matter that is relevant to the claim or defense of any party.” Fed.R.Civ.P. 26(b). The information at issue here, however, was, for the most part, protected by the deliberative process privilege, and so was not routinely discoverable under Rule 26(b).

The deliberative process privilege, a “sub-species of work-product privilege” (Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002)), “protects communications that are part of the decision-making process of a government agency.” U.S. v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993); see also A. Michael’s Piano v. FTC, 18 F.3d 138, 147 (2d Cir. 1994) (safeguards “the quality and integrity of governmental decisions”). The privilege applies to pre-decisional materials that are “deliberative” in that they “relate[] to the process by which policies are formulated.” Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (citations omitted). “[W]henever the unveiling of factual materials would be tantamount to the ‘publication of the evaluation and analysis of the multitudinous facts’ conducted by the agency, the deliberative process privilege applies.” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) (citation omitted). In EEOC cases, the privilege “protect[s] from disclosure pre-decisional documents and other information which ‘reveal the give and take of the consultative process’ concerning the EEOC’s investigation and its decision regarding whether and how to pursue an enforcement action.” EEOC v. JBS USA, 2013 WL 5812478, *2 (D.Colo. Oct. 29, 2013)(citing EEOC v. Continental Airlines, 395 F.Supp.2d 738, 741 (N.D. Ill. 2005)); accord EEOC v. BNSF Ry. Co., 2014 WL 1571278, *3-*4 (D.Kan. April 18, 2014).

Here, the magistrate faulted the Commission for invoking the privilege to prevent Carlo and Ging from answering certain deposition questions about Dr. Lanier’s analysis: “who reviewed [Dr. Lanier’s] statistical tables,” “whether the EEOC [undertook] any validation of Dr. Lanier’s work and whether it accepted [them] or ... independently verified them,” whether Ging did “any fact investigation ... concerning Dr. Lanier’s tables or took any steps to verify the accuracy of the information in Dr. Lanier’s tables,” and “which witness statements corroborated the allegations of nationwide sex discrimination.” App-85-86(v1)(Recommendation at 12-13) (listing questions). The magistrate further concluded that two pieces of this information — whether Dr. Lanier’s analysis “was the analysis referred to in the Letter of Determination” and whether EEOC “took any steps to verify the reliability of that analysis” — were critical to EEOC’s response to Sterling’s summary judgment motion. Since the Commission refused to waive its privilege, the magistrate reasoned, the answers to those questions were not in the record, and “[a]bsent such proof, there is no evidence that its investigation was nationwide.” App-89-90.

This reasoning is flawed. Virtually all of those questions intruded on the Commission’s decisionmaking processes — what the Commission considered, deemed important, and relied on as it went about investigating and finding cause on the nineteen charges underlying this enforcement action. They therefore fell squarely within the deliberative process privilege. The magistrate did not rule otherwise. [8]

Thus, once the Commission refused to disclose the answers, Sterling could overcome the privilege only by making a sufficient showing of particularized need to outweigh the public interest in nondisclosure. See Farley, 11 F.3d at 1389 (sufficient showing of particularized need); Marriott Int’l Resorts v. U.S., 437 F.3d 1302, 1307 (Fed.Cir. 2006)(“compelling need”), cited in In re City of New York, 607 F.3d 923, 945 (2d Cir.2010); In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997) (case-by-case assessment, balancing factors such as relevance of evidence, availability of other evidence, seriousness of and government’s role in litigation).

But the magistrate did not decide whether the company made the requisite showing, and Sterling could not do so. Not only is the investigatory process a matter within the Commission’s discretion but the specific information sought — whether the Commission validated or verified Dr. Lanier’s analysis — is relevant at most to an assessment of the sufficiency of the investigation. Under these circumstances, faulting the Commission for refusing to waive the privilege — and dismissing the case on that ground — “eviscerate[s] the deliberative process privilege.” See JBS, 2013 WL 5812478, *1-*2 (citing EEOC v. Albertson’s, 2008 WL 4877046, *5 (D.Colo. Nov. 12, 2008)). The ruling therefore was erroneous.

D. Even if the magistrate had properly concluded that the investigation was flawed, the enforcement action should not have been dismissed at all, and certainly not with prejudice.

Even if the Commission’s investigation had been less than thorough, the magistrate erred in dismissing the enforcement action (and, moreover, with prejudice) on that ground. The court cited no authority, nor is there any, for this drastic remedy.

The Commission is not aware of any other cases that turn solely on perceived flaws in the administrative investigation. Indeed, relatively few appellate cases address the administrative process at all, and those that do normally focus on notice and conciliation, neither of which is at issue here. No case suggests a remedy for an insufficient investigation.

The magistrate, however, opined that dismissal was the appropriate remedy here because the Commission had “completely abdicate[d] its role in the administrative process.” App-90-91(v1). That just is not so. As the magistrate acknowledged, the Commission did at least some investigation, and it is undisputed that it fulfilled all the other aspects of its “role in the administrative process.” And, of course, Sterling’s counsel stated in a hearing that the Commission had conducted a “nationwide administrative investigation.”

Furthermore, while characterizing the Commission’s conduct as a “complete abdication” of its administrative role, in the end what the magistrate actually concluded was that the Commission failed to carry its “burden of proof” because it refused to waive the deliberative process privilege and allow Ging and Carlo to answer two questions.

(1) Whether the statistical analysis mentioned in the LOD referred to Dr. Lanier’s analysis. (2) Whether Ging or anyone else had validated or verified that analysis. App-89-90(v1)(Recommendation at 16-17). The first was easily inferred from the files; as for the second, since the Commission was not required to validate or verify the analysis, that information, if supplied, would go, at most, to sufficiency — something the magistrate should not be addressing.

In recommending that the case be dismissed, the magistrate again referenced a 2013 decision in Bloomberg, where the court concluded that dismissal was appropriate inter alia because, according to the court, the Commission had “spurned Bloomberg’s offer to conciliate” specific claims. See 967 F.Supp.2d at 815 (also noting problems with LOD as well as investigation). Whatever its merits, that ruling is rooted in conciliation and, so, is inapposite to this case.

The Commission recognizes that this Court and a few others have upheld a trial court’s decision to dismiss an enforcement action upon determining that the Commission failed to provide the employer with adequate pre-suit notice and an opportunity to conciliate. See, e.g., EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 19 (2d Cir. 1981); CRST, 679 F.3d at 677; Asplundh, 340 F.3d at 1259 & n.1. These cases do not support the district court’s decision here. Unlike the investigation, which leads to no determinative consequences (see Georator, 592 F.2d at 767), conciliation is central to the administrative process, so to the extent the Commission made insufficient efforts to conciliate, that could be said to undermine Congress’s desire for out-of-court settlements. See Asplundh, 340 F.3d at 1260. In most such cases, courts do not dismiss but instead stay the suit pending further conciliation. Courts reason that, by “excus[ing] the employer’s (assumed) unlawful discrimination,” dismissal “would severely hamper” enforcement of the statute. See, e.g., EEOC v. Prudential Fed. Sav. & Loan Ass’n, 763 F.2d 1166, 1169 (10th Cir. 1985); Mach Mining, 738 F.3d at 184. In a few cases, however, courts have upheld the trial court’s decision to dismiss, either with or without prejudice. See, e.g., Sears, 650 F.2d at 19 (noting that stay would be preferable but affirming dismissal without prejudice). These courts relied on 42 U.S.C. §2000e-5(f)(1), reasoning that it gives trial courts discretion to remedy a failure to conciliate. [9]

While §2000e-5(f)(1) does refer to conciliation, there is no parallel provision according trial courts discretion over the other pre-suit requirements, including the investigation. Thus, nothing in Title VII suggests that trial courts may dismiss otherwise meritorious EEOC enforcement actions based only on perceived inadequacies in the investigation — or other aspects of the administrative process.

The Commission therefore urges this Court to hold that it was error to dismiss this Title VII enforcement action based solely on the court’s conclusion that the Commission failed to prove that it adequately investigated the allegations of nationwide sex discrimination found in the nineteen charges. Based on the charges, the LOD, and, at most, the contents of the investigative files, the Court should hold that the Commission satisfied this pre-suit administrative requirement. As Sterling previously acknowledged, the Commission did conduct a “nationwide administrative investigation” of the allegations in the charges.

CONCLUSION

For the foregoing reasons, the summary judgment should be reversed and the case remanded for further proceedings consistent with this ruling.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

/s/ Barbara L. Sloan_____________

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street N.E., 5th Floor

Washington, DC 20507

202-663-4721

barbara.sloan@eeoc.gov

(FAX) 202-663-7090

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,432 words from the Statement of Jurisdiction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Work 2003 with Century Schoolbook 14-point font.

/s/ Barbara L. Sloan________

Barbara L. Sloan

Attorney for Equal Employment

Opportunity Commission

Dated: September 4, 2014

` [1] Before her charge was transferred, Lisa McConnell, from Indiana (App-2077) (v7)(amended charge), received a right-to-sue notice, but EEOC then reinstated her charge. App-2102(v7).

[2] For example, in attempting to answer whether, based on her review of the files, there was “any indication that [the Florida investigator] asked for payroll records from other stores outside of Brandon or Tampa,” Carlo stated, “I would have to look at the files to be sure.” Defendant responded, “What’s your best recollection, as you sit here today?” Carlo did not recall, so defendant moved on to a different question. When Carlo again stated, “The files are a much more accurate response to your question than what I can give you based on my recollection,” defendant asked if anyone else would know the answer by memory. See, e.g., App-787-89 (v3)(Carlo: explaining, “My recollection and even my review of the files is a weak substitute to actually looking at the files,” adding that while the other investigator could explain her “normal practices,” she “had almost no recollection” of the specific files 6-7 years after the fact).

[4] In addition to defining “investigation,” these Procedures direct field offices to prioritize and categorize charges. Shortly after their adoption, the procedures were implicitly approved by Congress. See, e.g., 1995 Sen. Appropriations Comm. Rpt., S.Rep. No.104-139, at 118 (1995) (stating, “Committee supports the recent changes adopted by the EEOC ... to prioritize and categorize charges based on new charge handling procedures”); 1996 Sen. Appropriations Comm. Rpt., S.Rep. No.104-353, at 122 (1996) (same, slightly increasing appropriations).

[5] If the magistrate meant to imply that EEOC must invariably determine cause “by itself” as well as “for itself,” such a requirement would conflict with the statute. Title VII specifies that state and local anti-discrimination agencies get first crack at processing certain charges (42 U.S.C. §2000e-5(c)), and EEOC must “accord substantial weight” to those agencies’ “final findings and orders” (§2000e-5(b)).

[6] The magistrate also cited Martini, 178 F.3d at 1346, to support its statement that EEOC’s “duty to investigate” is “mandatory” and “unqualified.” Martini does not involve EEOC’s compliance with the administrative requirements. Rather, the case rejects EEOC’s regulation permitting charging parties to obtain an early notice of right to sue where the Commission certifies that it will not finish processing of the charge within 180 days (42 U.S.C. §2000e-5(f)(1)). The Commission disagrees with Martini, which represents a minority view in appellate courts (compare Walker v. UPS, 240 F.3d 1268, 1275 (10th Cir. 2001); Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061 (11th Cir. 1994); Brown v. Puget Sound Elec. A&T Trust, 732 F.2d 726, 729 (9th Cir. 1984)), on an open question in this Circuit (Hankins v. Lyght, 441 F.3d 96, 101 (2d Cir. 2006) (noting caselaw contrary to Martini but not needing to decide question)). Since the Martini plaintiff received her right to sue only 21 days after filing her charge, the court dismissed her suit without prejudice, adding that she could file a new suit after attempting conciliation for another 159 days. 178 F.3d at 1348. However, despite the “mandatory and unqualified” language — which adds nothing to the analysis here — the court did not require EEOC to continue its investigation.

[7] Moreover, both Ging and Carlo were deposed years after their last connection with the case; each had investigated multiple other cases in the interim. Any lack of memory therefore should be excused. Further, Sterling actually prevented Carlo from consulting the files, turning her deposition into a memory test.

[8] EEOC agrees that the fact that the “statistical analysis” referenced in the LOD was the one done by Dr. Lanier was not privileged information. As noted above, however, based on the record, the magistrate reasonably should have drawn that inference.

[9] This Court, for example, read §2000e-5(f)(1) as indicating that Title VII “contemplates that the decision of whether to stay proceedings or dismiss the action is committed to the trial court’s discretion.” See 650 F.2d at 19. But §2000e-5(f)(1) speaks only of “stay,” not “dismissal.” By its plain terms, the provision gives trial courts discretion to “stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.” The statute therefore should not be read to authorize dismissal as a remedy for insufficient conciliation. See Mach Mining,738 F.3d at 184 (reasoning that since the wrong claimed by defendant is “purely one of insufficient process,” the remedy should be more process. Dismissal is “too final and drastic a remedy for any procedural deficiency in conciliation”).