No. 22-55515

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

v.

ACTIVISION BLIZZARD, INC., ET AL.,

Defendants-Appellees,

v.

JESSICA GONZALEZ, Proposed Intervenor,

Movant-Appellant.

 

 

On Appeal from the United States District Court
for the Central District of California, No. 21-cv-7682

 

 

RESPONSE BRIEF FOR PLAINTIFF-APPELLEE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

 

 

gwendolyn young reams      Equal Employment

Acting General Counsel               OPPORTUNITY COMMISSION

JENNIfer s. goldstein                      Office of General Counsel     

Associate General Counsel                          131 M St. NE, Fifth Floor

ANNE NOEL OCCHIALINO                     Washington, DC 20507

Acting Assistant General Counsel               (202) 921-2889

CHELSEA C. SHARON                              chelsea.sharon@eeoc.gov

Attorney, Appellate Litigation Services

TABLE OF CONTENTS

Page

 

 

TABLE OF AUTHORITIES. v

 

INTRODUCTION 1

 

STATEMENT OF JURISDICTION.. 3

 

STATEMENT OF THE ISSUES. 4

 

PERTINENT STATUTORY PROVISIONS. 5

 

STATEMENT OF THE CASE.. 5

 

A.      Statutory Framework. 5

 

B.      Factual Background. 8

 

C.      Procedural History. 13

 

SUMMARY OF THE ARGUMENT. 18

 

STANDARD OF REVIEW 21

 

ARGUMENT 22.

 

I.       This Court lacks jurisdiction to hear Ms. Gonzalez’s appeal of the consent decree. 22

 

A.    Ms. Gonzalez can only appeal the consent decree if this Court finds the denial of intervention to be improper. 22

 

B.    Ms. Gonzalez lacks Article III standing to appeal the consent decree. 23

 

II.     The district court properly denied Ms. Gonzalez’s motion to intervene. . 25

 

A.    Ms. Gonzalez’s motion was untimely. 26

 

1. Stage of the proceedings. 26

 

2. Reason for and length of delay. 29

 

3. Prejudice to existing parties. 31

 

B.    Ms. Gonzalez failed to establish a statutory right to intervene under Rule 24(a)(1). 33

 

C.    Ms. Gonzalez did not argue below that Rule 24(a)(2) entitled her to intervene and, in any event, she cannot meet that Rule’s requirements. 41

 

1. Ms. Gonzalez’s motion to intervene was untimely.. 42

 

2. Ms. Gonzalez lacks a protectable interest that the consent decree stands to impair or impede. 42

 

3. EEOC adequately represents any protectable interest Ms. Gonzalez possesses. 47

 

4. Ms. Gonzalez lacks Article III standing to pursue the relief she sought through intervention. 49

 

D.    The district court acted within its discretion in denying permissive intervention under Rule 24(b)(1). . 50

 

III.    The district court acted well within its discretion in approving the consent decree and declining to hold a fairness hearing. 53

 

CONCLUSION.. 59

 

STATEMENT OF RELATED CASES. 59

 

CERTIFICATE OF COMPLIANCE

 

CERTIFICATE OF SERVICE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF AUTHORITIES

Page(s)

Cases

 

Alaniz v. Tillie Lewis Foods,
572 F.2d 657 (9th Cir. 1978) ........... 31

 

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) ....................... 6, 59

 

Alleghany Corp. v. Kirby,
344 F.2d 571 (2d Cir. 1965)............. 49

 

Arakaki v. Cayetano,
324 F.3d 1078 (9th Cir. 2003).... 42, 48

 

Blake v. Pallan,
554 F.2d 947 (9th Cir. 1977)............ 44

 

Chamness v. Bowen,
722 F.3d 1110 (9th Cir. 2013).......... 38

 

City of Emeryville v. Robinson,
621 F.3d 1251 (9th Cir. 2010).......... 32

 

Commc’ns Workers of Am. v. N.J. Dep’t of Pers.,
282 F.3d 213 (3d Cir. 2002)............. 56

 

Cnty. of Orange v. Air Cal.,

.... 799 F.2d 535 (9th Cir. 1986)............ 21

 

Davis v. City & Cnty. of S.F.,
890 F.2d 1438 (9th Cir. 1989).... 21, 53

 

Defs. of Wildlife v. Perciasepe,
714 F.3d 1317 (D.C. Cir. 2013)........ 23

 

Diamond v. Charles,
476 U.S. 54 (1986)............................ 24

 

Donnelly v. Glickman,
159 F.3d 405 (9th Cir. 1998)............ 51

 

EEOC v. Fry’s Elecs., Inc.,
770 F. Supp. 2d 1168 (W.D. Wash. 2011)................................................ 37

 

EEOC v. GMRI, Inc.,
221 F.R.D. 562 (D. Kan. 2004)......... 34

 

EEOC v. Grays Harbor Cmty. Hosp.,
791 F. Supp. 2d 1004 (W.D. Wash. 2011)................................................ 58

 

EEOC v. Herb Hallman Chevrolet, Inc.,
No. 19-cv-00537, 2020 WL 534046 (D. Nev. Feb. 23, 2020).......................... 37

 

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984)............................ 48

 

EEOC v. United Air Lines, Inc.,
No. 73 C 972, 1995 WL 103658 (N.D. Ill. Mar. 3, 1995).............................. 49

 

EEOC v. Waffle House, Inc.,
534 U.S. 279 (2002)............................ 7

 

Gen. Tel. Co. of the Nw., Inc., v. EEOC,
446 U.S. 318 (1980).................. 5, 6, 56

 

Houston v. Bryan,
725 F.2d 516 (9th Cir. 1984)............ 56

 

In re Volkswagen “Clean Diesel” Mktg., Sales Pracs. & Prods. Liab. Litig.,
894 F.3d 1030 (9th Cir. 2018).......... 50

 

Iraheta-Martinez v. Garland,
12 F.4th 942 (9th Cir. 2021)............ 36

 

Kalbers v. U.S. Dep’t of Just.,
22 F.4th 816 (9th Cir. 2021)............ 27

 

Kremer v. Chem. Constr. Corp.,
456 U.S. 461 (1982)............................ 5

 

League of United Latin Am. Citizens (LULAC) v. Wilson,
131 F.3d 1297 (9th Cir. 1997)... passim

 

Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992).......................... 24

 

Mach Mining, LLC v. EEOC,
575 U.S. 480 (2015)............................ 7

 

Mahon v. Credit Bureau of Placer Cnty., Inc.,
171 F.3d 1197 (9th Cir. 1999).......... 55

 

Marino v. Ortiz,
484 U.S. 301 (1988) (per curiam)..... 22

 

Mineworkers’ Pension Scheme v. First Solar, Inc.,
722 F. App’x 644 (9th Cir. 2018) (per curiam)............................................. 52

 

Occidental Life Ins. Co. of Cal. v. EEOC,
432 U.S. 355 (1977)............................ 6

 

Officers for Just. v. Civ. Serv. Comm’n of City & Cnty. of S.F.,
688 F.2d 615 (9th Cir. 1982)............ 57

 

Or. Prescription Drug Monitoring Program v. U.S. Drug. Enf’t Admin.,
860 F.3d 1228 (9th Cir. 2017).......... 50

 

Perry v. Proposition 8 Off. Proponents,

.... 587 F.3d 947 (9th Cir. 2009)............ 52

 

Perry v. Schwarzenegger,

.... 630 F.3d 896 (9th Cir. 2011)...... 51, 52

 

Robert Ito Farm, Inc. v. Cnty. of Maui,

.... 842 F.3d 681 (9th Cir. 2016)............ 22

 

SEC v. Randolph,

.... 736 F.2d 525 (9th Cir. 1984)........ 7, 53

 

Seneca Res. Corp. v. Twp. of Highland,

.... 863 F.3d 245 (3d Cir. 2017)....... 22, 23

 

Spangler v. Pasadena Bd. of Educ.,

.... 552 F.2d 1326 (9th Cir. 1977).......... 52

 

Stone v. City & Cnty. of S.F.,
968 F.2d 850 (9th Cir. 1992).............. 3

 

SurvJustice, Inc. v. DeVos,
No. 18-cv-00535, 2019 WL 1427447 (N.D. Cal. Mar. 29, 2019)................. 30

 

Town of Chester v. Laroe Ests., Inc.,
137 S. Ct. 1645 (2017)................ 42, 49

 

United States v. Alisal Water Corp.,
370 F.3d 915 (9th Cir. 2004)...... 25, 42

 

United States v. City of Jackson,

.... 519 F.2d 1147 (5th Cir. 1975).... 43, 44

 

United States v. City of Los Angeles,

.... 288 F.3d 391 (9th Cir. 2002)............ 48

 

 

United States v. McInnes,

.... 556 F.2d 436 (9th Cir. 1977)............ 59

 

United States v. Oregon,

.... 913 F.2d 576 (9th Cir. 1990) 26, 29, 30

 

United States v. Oregon,

.... 745 F.2d 550 (9th Cir. 1984)............ 31

 

United States v. Robertson,

.... 52 F.3d 789 (9th Cir. 1994).............. 41

 

United States v. Washington,

.... 86 F.3d 1499 (9th Cir. 1996) 26, 29, 30, 32

 

Va. House of Delegates v. Bethune-Hill,

.... 139 S. Ct. 1945 (2019)...................... 23

 

Zepeda v. PayPal, Inc.,
No. 10-cv-02500, 2014 WL 1653246 (N.D. Cal. Apr. 23, 2014)................. 28

 

Statutes

 

Cal. Evid. Code § 413........................... 45

 

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

42 U.S.C. § 2000e(k).......................... 5

42 U.S.C. § 2000e-2(a)(1)................... 5

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

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

42 U.S.C. § 2000e-5(f)(1).............. 7, 34

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

Rules and Regulations

 

29 C.F.R. § 1601.11(a)............................ 6

 

Fed. R. Civ. P. 24(a)(1).................. passim

 

Fed. R. Civ. P. 24(a)(2).................. passim

 

Fed. R. Civ. P. 24(b)(1).................. passim

 

Fed. R. Civ. P. 24(b)(3)......................... 51

 

Other Authorities

 

15A Charles Alan Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 3902.1 (2d ed. Apr. 2021 update)................................................. 22

 

What You Should Know About: EEOC’s Settlement With Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022)......................... 11, 13, 17, 46

 

 

 

 

 

 

 

 

INTRODUCTION

After a nearly three-year administrative investigation into allegations of discrimination in Activision Blizzard, et al. (Activision)’s workplaces, the Equal Employment Opportunity Commission (EEOC) and Activision agreed to a robust consent decree providing for significant injunctive relief and $18 million in monetary relief for Activision victims of employment discrimination nationwide. A full five months after the parties submitted the proposed consent decree in district court, Jessica Gonzalez, a former Activision employee, moved to intervene, claiming that the consent decree—which provides for a strictly voluntary, opt-in settlement—provided inadequate relief and impaired her interests.

The district court denied Ms. Gonzalez’s motion to intervene, and this Court should affirm that denial. Ms. Gonzalez’s motion—filed after the district court had already spent five months carefully considering the terms of the decree and well after Ms. Gonzalez knew of the decree’s purported injury to her interests—was untimely. This alone defeats intervention, but Ms. Gonzalez also cannot meet the remaining criteria for intervention under any of the provisions she relies upon. She cannot establish an unconditional statutory right to intervene under Federal Rule of Civil Procedure 24(a)(1) because she failed to show that Title VII grants her any such right. She cannot intervene of right under Rule 24(a)(2) because the decree does not impair any legally protected interest of hers; EEOC adequately represents any such interest she might possess; and she lacks Article III standing to pursue the relief she sought through intervention. And she cannot show that the district court abused its broad discretion in denying permissive intervention, given that her participation would merely have raised duplicative arguments that the district court already rejected while causing delay and prejudice to the parties and the beneficiaries of the consent decree.

This Court should also reject Ms. Gonzalez’s effort to appeal the consent decree. This Court lacks jurisdiction to hear such an appeal, both because Ms. Gonzalez is a non-party and because she lacks Article III standing to independently appeal the decree. And, in any event, Ms. Gonzalez cannot show that the experienced district court judge abused her discretion in finding the consent decree to be fair, reasonable, and adequate, and in declining to hold a “fairness hearing.” Prior to approving the decree, the district court requested extensive clarifications and revisions from the parties, conducted two hearings, and considered and rejected objections from other entities regarding the decree. This Court should not displace the careful assessment and considered judgment of the district court based on Ms. Gonzalez’s unfounded claim of purported deficiencies in the decree.

STATEMENT OF JURISDICTION

EEOC brought this enforcement action in federal district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and simultaneously submitted a proposed consent decree. 3-ER-436, 446 (docket entries for R.1, R.11). The district court had subject matter jurisdiction to approve the consent decree pursuant to 42 U.S.C. § 2000e-5(f)(3), 28 U.S.C. § 1331, and 28 U.S.C. § 1345.

This appeal arises from Ms. Gonzalez’s attempt to intervene in this federal consent decree proceeding and to appeal the approval of the consent decree. This Court typically has jurisdiction under 28 U.S.C. § 1291 over the appeal of a decision denying intervention of right and over the appeal of a consent decree. See League of United Latin Am. Citizens (LULAC) v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); Stone v. City & Cnty. of S.F., 968 F.2d 850, 854 (9th Cir. 1992) (“A consent decree is considered a final judgment despite the fact that the district court retains jurisdiction over the case.”). This Court ordinarily has jurisdiction over the appeal of a denial of permissive intervention if the district court abused its discretion. LULAC, 131 F.3d at 1308.

Here, however, this Court lacks appellate jurisdiction over this matter because Ms. Gonzalez is a non-party who has no entitlement to appeal the consent decree and because she lacks Article III standing to independently appeal the consent decree. See infra at 22-25.

STATEMENT OF THE ISSUES

1.    Whether this Court lacks appellate jurisdiction to consider Ms.

Gonzalez’s appeal of the consent decree because she is a non-party who was properly denied intervention and because she lacks Article III standing to independently appeal the consent decree.

2.      Whether the district court correctly denied Ms. Gonzalez’s

motion to intervene under Rules 24(a)(1) and 24(a)(2) and whether the court acted within its broad discretion in denying her motion for permissive intervention under Rule 24(b).

3.      Whether the district court acted within its discretion in

approving the consent decree and declining to hold a “fairness hearing” in addition to the two hearings it already held.

PERTINENT STATUTORY PROVISIONS

All relevant statutory and regulatory authorities are contained in the brief or addendum submitted by Ms. Gonzalez.

STATEMENT OF THE CASE

A.     Statutory Framework

“The EEOC exists to advance the public interest in preventing and remedying employment discrimination . . . .” Gen. Tel. Co. of the Nw., Inc., v. EEOC, 446 U.S. 318, 331 (1980). It does so by enforcing antidiscrimination statutes, including Title VII. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468 (1982) (“Congress enacted Title VII to assure equality of employment opportunities without distinction with respect to race, color, religion, sex, or national origin” and created EEOC to achieve this end).

Title VII forbids discrimination based on sex, which includes pregnancy discrimination. 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k). Title VII also makes it unlawful for an employer to retaliate against individuals who oppose unlawful employment practices. 42 U.S.C. § 2000e-3(a). Under the statute, administrative charges of discrimination may be filed by or on behalf of aggrieved individuals or by EEOC Commissioners. 42 U.S.C. § 2000e-5(b); see 29 C.F.R. § 1601.11(a) (authorizing EEOC Commissioners to file charges of discrimination). Title VII generally directs EEOC to investigate charges of discrimination, determine whether there is reasonable cause to believe charges are true, and, if reasonable cause exists, to engage in conciliation in an effort to resolve the charge informally without resort to litigation. 42 U.S.C. § 2000e-5(b).

In enacting Title VII in 1964, Congress “selected ‘(c)ooperation and voluntary compliance . . . as the preferred means for achieving’ the goal of equality of employment opportunities.” Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367-68 (1977) (alterations in original) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)).

In 1972, Congress amended Title VII “to secure more effective enforcement of Title VII” by “expand[ing] the EEOC’s enforcement powers [to] authoriz[e] the EEOC to bring a civil action in federal district court against private employers reasonably suspected of violating Title VII.” Gen. Tel. Co., 446 U.S. at 325. Consequently, if conciliation is unsuccessful, EEOC can file its own enforcement action seeking relief for an individual or a class of aggrieved individuals. 42 U.S.C. § 2000e-5(f)(1). In exercising its enforcement powers, EEOC is “the master of its own case,” and has “the authority to evaluate the strength of the public interest at stake” and “to determine whether public resources should be committed to the recovery of victim-specific relief.” EEOC v. Waffle House, Inc., 534 U.S. 279, 291-92 (2002).

Whether resolving a charge through the conciliation process or settling an enforcement action in court, the EEOC retains broad discretion to determine whether resolution is in the public interest. In Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), the Supreme Court stated that EEOC has wide “latitude . . . to pursue voluntary compliance with the law’s commands.” Id. at 492. This Court likewise has recognized that where government agencies like EEOC have negotiated a proposed settlement, it is necessary to “pay deference to the judgment of the government agency” unless the settlement is “unfair, inadequate, or unreasonable.” SEC v. Randolph, 736 F.2d 525, 529-30 (9th Cir. 1984) (reversing denial of consent decree and emphasizing that “[t]he initial determination whether the consent decree is in the public interest is best left” to the agency negotiating the decree “and its decision deserves our deference”).

B.     Factual Background

In September 2018, after receiving an anonymous complaint from one of Activision’s employees about a sex-based hostile work environment, an EEOC Commissioner filed a charge opening an investigation into allegations of discrimination in Activision’s workplaces. EEOC-SER-178 at ¶¶ 2-3; EEOC-SER-175 at ¶¶ 3, 5. EEOC then learned that the California Department of Fair Employment and Housing, now the California Civil Rights Department (CRD), a state fair employment practices agency, had filed a Director’s Complaint of discrimination against Activision. EEOC-SER-175 at ¶ 4. Although a pre-existing worksharing agreement between the two agencies gave EEOC the right to proceed, EEOC reached out to CRD in the spirit of cooperation and recommended that the agencies work together and divide investigative responsibility. EEOC-SER-175-76 at ¶¶ 5-6. The agencies agreed that EEOC would handle investigation of harassment allegations while CRD would take the lead on other sex discrimination allegations, such as those concerning pay and promotion. EEOC-SER-175-76 at ¶ 6; EEOC-SER-180-81 at ¶¶ 12-14.

Relying on that agreement, EEOC conducted a comprehensive investigation, interviewing more than 100 employees, managers, and third parties, and reviewing thousands of pages of documents. EEOC-SER-3 at ¶ 3. On June 15, 2021, EEOC concluded its investigation and issued a Letter of Determination finding reasonable cause to believe Activision committed violations of Title VII. EEOC-SER-183 at ¶ 24. EEOC sent the Letter of Determination to CRD, notified it that EEOC and Activision were engaging in conciliation, and invited CRD to coordinate regarding next steps, but CRD did not respond. EEOC-SER-184-85 at ¶¶ 26, 29.

Instead, on July 20, 2021, CRD filed a state-court action against Activision bringing claims under California law. EEOC-SER-185 at
¶ 30. Meanwhile, EEOC and Activision proceeded to Title VII’s required conciliation process and then later worked with a third-party mediator during a days-long mediation and subsequent negotiations. EEOC-SER-55 at ¶ 3. EEOC and Activision eventually reached an agreement and, on September 27, 2021, EEOC simultaneously filed a complaint and submitted a proposed consent decree in federal district court. 3-ER-438, 446 (docket entries for R.1, R.11). The complaint asserted Title VII claims of sexual harassment, pregnancy discrimination, and related retaliation, and did not include any state-law claims. 3-ER-440 at
¶¶ 21-25.

The consent decree provides for comprehensive nationwide relief, including sweeping injunctive relief and an $18-million class fund available to Activision employees in California and other states. 1-ER-14, 24-51. The decree resolves only the Title VII claims EEOC asserted in its federal court complaint. 1-ER-10 (“[T]his Decree completely and finally resolves all allegations, issues, and claims raised by the EEOC against Defendants made in the Action . . . .”) (emphasis added). The injunctive relief requires, among other things, that Activision hire a third-party EEO consultant to conduct audits, track complaints, and assess trainings, 1-ER-26-28; hire an internal EEO coordinator to ensure compliance with the decree, 1-ER-28-31; conduct trainings, 1-ER-38-42; and provide counseling to employees who suffered sexual harassment, pregnancy discrimination, or related retaliation, 1-ER-44-45.

 The consent decree also details the claims process. The consent decree contemplates that claimants will submit claims forms detailing their allegations. 1-ER-18-19. EEOC will then determine whether a claimant is eligible for relief under the decree and what amount of compensation is warranted. 1-ER-19. The claims administrator, who is paid by Activision, then informs eligible claimants of the amount allocated. 1-ER-15, 1-ER-19-20. At that point, an eligible claimant has the opportunity to consult with an independent attorney “to advise on the release of claims to which the EEOC is not a party.” 1-ER-20. Activision must pay for the one-hour consultation. 1-ER-20. Claimants select their own attorney and, in making this selection, can consult an EEOC-compiled list of recommended plaintiffs’ attorneys willing to provide such consultation. 1-ER-20; see also What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022) (explaining that claimants can select attorney of their choosing).

The release in question is narrowly tailored to only those claims that are analogues of the claims covered by the decree: namely, claims “for sexual harassment, pregnancy discrimination, or related retaliation,” whether under Title VII, the Fair Employment and Housing Act (a California state law), or “any other applicable federal, state, or local law.” 1-ER-77. The release does not purport to waive any relief in connection with other claims, such as sex discrimination claims based on pay or promotion. 1-ER-77.

A claimant who is unsatisfied with the allocated amount, or who does not want to release other claims, can simply decline to participate further in the decree’s claims process. This leaves Activision employees like Ms. Gonzalez free to pursue federal or state claims in their preferred forum (or not at all), assuming that they satisfy applicable prerequisites to suit. Because the decree, like all EEOC consent decrees, is opt-in rather than opt-out in nature, no claimant waives any claim through inaction. 1-ER-57 (“Participation in this settlement is completely voluntary.”).

The decree also protects eligible claimants from retaliation in their efforts to find future employment by giving them the option to have documents related to their allegations of discrimination segregated from their personnel files and to have retaliatory terminations reclassified as voluntary resignations. 1-ER-24, 1-ER-75 (specifying that EEOC “will consult with you prior to instructing Activision . . . to remove any documents); see also What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022) (explaining that claimant has choice “to request that an unfair termination be reclassified as a resignation”). The decree specifies that “Defendants must retain a record of any information removed from an Eligible Claimant’s personnel file . . . consistent with the recordkeeping provisions” contained in the decree or as “otherwise required by law.” 1-ER-24.  

C.     Procedural History

Jessica Gonzalez is a former Activision employee who worked for

Activision from August 2019 through December 2021. 2-ER-328 at ¶ 2. On October 12, 2021, the Communication Workers of America (“the union”) filed an objection to the consent decree and request for the district court to conduct a fairness hearing. 3-ER-426. Ms. Gonzalez asserts that she “voiced [her] concerns through” the union’s filing, Dkt. 11 at 34,[1] and the same attorney who represented the union in connection with that filing also represented Ms. Gonzalez below, and represents her on appeal, Dkt. 11 at 1, 2-ER-317, 3-ER-426.

On October 25, 2021, CRD filed a motion to intervene for purposes of opposing the consent decree. 3-ER-396. CRD argued that the decree impermissibly sought to resolve state-law claims, required destruction of evidence, and was monetarily inadequate and contrary to public policy. 3-ER-396-425.

On December 13, 2021, the district court held a ninety-minute hearing regarding the proposed consent decree. EEOC-SER-98. During that hearing, the district court discussed and overruled the union’s objection to the consent decree. EEOC-SER-101, 121-22. On December 20, 2021, the district court denied CRD’s motion to intervene but allowed CRD to participate as amicus curiae and to present its position through an amicus brief, making clear that CRD’s “concerns can be expressed . . . through this mechanism and will be considered by the Court.” EEOC-SER-97.

On February 10, 2022, Ms. Gonzalez filed an objection to the consent decree and a request for a fairness hearing. 3-ER-451 (docket entry for R.64). The district court struck this objection the following day because Ms. Gonzalez was “a non-party to the action.” 3-ER-451 (docket entry for R.65). On March 4, 2022—more than five months after EEOC filed its complaint and proposed consent decree—Ms. Gonzalez filed a motion to intervene, again for purposes of objecting to the consent decree and requesting a fairness hearing. 2-ER-317. Ms. Gonzalez states that, on or about that same day, she filed a charge with CRD. Dkt. 11 at 14. Ms. Gonzalez’s intervention motion sought to rely on this charge as a basis for intervention. 2-ER-320.

The objections that Ms. Gonzalez sought to raise in intervention overlapped almost entirely with those CRD raised in its intervention motion. 2-ER-317-26 (challenging the decree’s purported release of state-law claims and destruction of evidence). EEOC and Activision opposed Ms. Gonzalez’s motion. 2-ER-211, 2-ER-249. The district court denied Ms. Gonzalez’s motion on March 22, 2022, relying on “the reasons stated in the [parties’] Oppositions.” 1-ER-81.

The district court ultimately approved the consent decree on March 29, 2022, finding that the decree’s provisions were fair, reasonable, and adequate, and advanced the public interest. 1-ER-80; 3-ER-452 (docket entry for R.82). Contrary to Ms. Gonzalez’s assertion that “[a]t every step” the district court failed to consider the consent decree’s purported harm to Activision workers, Dkt. 11 at 10, the record shows that the district court heard and considered these concerns but found them baseless. Prior to approving the consent decree, the district court held two hearings, asked detailed questions of EEOC and Activision, and requested and reviewed several edited versions of the decree. See EEOC-SER-98 (sixty-three page transcript of initial hearing where district court posed questions to EEOC and Activision and requested revisions); EEOC-SER-68 (EEOC/Activision’s joint filing responding to court-requested clarifications); 3-ER-345 (submission of first amended consent decree); EEOC-SER-41 (EEOC/Activision’s application for submission of documents for in camera review addressing district court’s questions regarding calculations underlying settlement figure); EEOC-SER-39 (district court order granting in camera review); 2-ER-167 (district court order requesting additional clarifications from parties); 2-ER-159 (EEOC/Activision’s joint filing responding to further requested clarifications); 2-ER-88 (submission of second amended consent decree); 1-ER-80 (subsequent hearing regarding the decree with EEOC, Activision, and CRD participation); 2-ER-83 (EEOC/Activision’s joint submission of final documents incorporating requested revisions). The district court also considered both oral argument and detailed briefing from CRD, EEOC-SER-98-160, EEOC-SER-14, 1-ER-80, but ultimately found CRD’s objections to be largely “inaccurate, based on speculation,” or otherwise unpersuasive. 2-ER-169.

On May 23, 2022, Ms. Gonzalez filed a notice of appeal of the district court’s denial of her motion to intervene and of the district court’s approval of the consent decree.[2] 3-ER-443.

The claims-filing period for the consent decree closed on August 12, 2022. See What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022). Since then, EEOC has completed its assessment and allocation of submitted claims, finding hundreds of individuals eligible for awards, and has distributed most of the $18 million fund. Id. Additionally, Activision is already in the process of implementing the comprehensive injunctive relief contemplated by the consent decree; the decree requires Activision, within thirty to sixty days of the decree’s effective date, to hire a third-party EEO consultant, designate an internal EEO coordinator, and provide free counseling services to employees who experienced sexual harassment, pregnancy discrimination, or related retaliation. 1-ER-26 (hiring of EEO consultant within 30 days); 1-ER-28 (hiring of EEO coordinator within 45 days); 1-ER-44-45 (provision of counseling within 60 days).

                  SUMMARY OF THE ARGUMENT

Following a lengthy administrative investigation and extensive negotiations, EEOC and Activision agreed to a comprehensive consent decree that provides significant monetary and injunctive relief to victims of employment discrimination nationwide. Five months after the parties submitted this proposed decree, and after the district court had carefully reviewed the decree’s provisions and considered arguments in opposition to the decree, Ms. Gonzalez sought to intervene in order to raise admittedly “duplicative” arguments to those the district court had already found unpersuasive.

The district court rejected Ms. Gonzalez’s belated attempt to intervene, and this Court should affirm. Ms. Gonzalez’s motion to intervene was untimely because she filed it well after she knew that the decree purportedly caused her injury and at a stage of the proceedings when her participation would have delayed the provision of relief to victims of discrimination. This alone is fatal to intervention, but Ms. Gonzalez also cannot meet the remaining criteria for intervention under any of the provisions she relies upon. Ms. Gonzalez cannot satisfy Rule 24(a)(1) because she did not establish that she qualifies as an aggrieved person given a statutory right to intervene by Title VII. And Rule 24(a)(2) does not help Ms. Gonzalez because the decree does not injure any significant protectable interest of hers; EEOC adequately represents any protectable interest she might have; and she cannot establish Article III standing to pursue the relief she sought through intervention. Nor can Ms. Gonzalez show that the district court abused its broad discretion in denying permissive intervention, given that Ms. Gonzalez sought to make duplicative arguments the district court had already rejected at the expense of additional delay for the claimants.

This Court should also reject Ms. Gonzalez’s effort to appeal the consent decree. First, this Court lacks jurisdiction to hear any appeal of the consent decree. Ms. Gonzalez, as an unsuccessful intervenor whose bid to intervene was properly denied, is a non-party who cannot appeal the underlying decree. In addition, Ms. Gonzalez must—but cannot—establish Article III standing to independently appeal a decree that neither EEOC nor Activision have appealed. Second, Ms. Gonzalez’s challenge to the decree is in any event meritless. Ms. Gonzalez has made no showing that the experienced district court judge abused her discretion in approving the decree and in declining to hold an additional “fairness hearing” beyond the two hearings she already held. The district court carefully reviewed the decree’s provisions, requested extensive clarifications and revisions, considered and rejected objections from CRD and the union, and ultimately found the decree to be fair, reasonable, and adequate. This Court should not disturb that considered judgment based on Ms. Gonzalez’s unfounded and confusing claims of purported inadequacies in the decree.

STANDARD OF REVIEW

         This Court reviews a district court’s denial of a motion to intervene as of right de novo, except that review of the timeliness element is for abuse of discretion. LULAC, 131 F.3d at 1302. A district court’s denial of permissive intervention pursuant to Rule 24(b) is reviewed for abuse of discretion. Cnty. of Orange v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986) (“Permissive intervention is committed to the broad discretion of the district court . . . .”). Where the district court’s decision contains insufficient discussion to determine whether it abused its discretion with respect to a given element, this Court has said that the review is de novo. LULAC, 131 F.3d at 1302 (reviewing timeliness factor de novo, instead of for abuse of discretion, where district court did not explain the basis for denying intervention as of right).

         This Court reviews the district court’s approval of a consent decree for abuse of discretion, reversing “only upon a strong showing” that approval “was a clear abuse of discretion.” Davis v. City & Cnty. of S.F., 890 F.2d 1438, 1445 (9th Cir. 1989) (citation omitted). In conducting this review, the Court “will not substitute its notions of fairness for those of the district judge and the parties to the agreement.” Id.

ARGUMENT

I.             This Court lacks jurisdiction to hear Ms. Gonzalez’s appeal of the consent decree.  

A.   Ms. Gonzalez can only appeal the consent decree if this Court finds the denial of intervention to be improper.

 “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam). Because Ms. Gonzalez was “not permitted to intervene, [she] did not become [a] part[y] to this lawsuit,” and as a non-party she “may not challenge the Consent Decree.” Seneca Res. Corp. v. Twp. of Highland, 863 F.3d 245, 258 (3d Cir. 2017); see also Robert Ito Farm, Inc. v. Cnty. of Maui, 842 F.3d 681, 688 (9th Cir. 2016) (explaining that “[a]s a non-party, would-be intervenor . . . could not appeal the final judgment”); 15A Charles Alan Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 3902.1 (2d ed. Apr. 2021 update) (while “[p]ersons denied intervention in the trial court” may “appeal the denial of intervention,” if “intervention was properly denied, [they] have no greater right to appeal the judgment entered between others than other nonparties”).

Ms. Gonzalez therefore cannot appeal the consent decree unless this Court finds that denial of intervention was improper. As explained below, it was not. Infra at 25-53. This Court thus “ha[s] no appellate jurisdiction to review” Ms. Gonzalez’s appeal of the consent decree. Seneca Res. Corp., 863 F.3d at 259; see Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1328 (D.C. Cir. 2013) (“Because a party unsuccessfully appealing a denial of intervention is not a ‘party,’ it may not obtain review of any district court holding other than the denial of intervention.”).

B.  Ms. Gonzalez lacks Article III standing to appeal the consent decree.

 

         As explained below, the district court properly denied Ms. Gonzalez’s motion to intervene. Infra at 25-53. But even if Ms. Gonzalez qualified as an intervenor under Rule 24 with the right to appeal the consent decree, she still lacks Article III standing to bring such an appeal. An intervenor “must independently demonstrate standing” in order “to appeal a decision that the primary party does not challenge.” Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019); see also Diamond v. Charles, 476 U.S. 54, 68 (1986). Here neither EEOC nor Activision have appealed the approval of the consent decree. Accordingly, Ms. Gonzalez must show she has Article III standing in order to appeal the consent decree, and she fails to make this showing.

To satisfy Article III standing, Ms. Gonzalez must show, inter alia, that the consent decree caused her an injury in fact, i.e., “invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted). Ms. Gonzalez, however, has identified no way in which the consent decree even implicates—much less injures—any legally protected interest she might possess. As explained below, see infra at 43-44, because participation in the consent decree is completely voluntary, Ms. Gonzalez need not (and in fact has chosen not to) participate in the decree’s claims process. The consent decree thus has no impact on her ability to vindicate her rights under federal or state law. Ms. Gonzalez’s claim of injury arising from the decree’s provisions regarding segregation of information from personnel files fails for the same reason: because she is not participating in the decree’s claims process, there is no possibility that the decree’s provisions will impact her personnel file in any way. Infra at 43-44. In sum, Ms. Gonzalez has failed to show anything resembling a concrete and particularized injury sufficient to confer the Article III standing she must possess to independently appeal the consent decree.

II.          The district court properly denied Ms. Gonzalez’s motion to intervene.

 

Ms. Gonzalez claims she is entitled to intervene as of right under Rule 24(a)(1) or, in the alternative, Rule 24(a)(2), and that permissive intervention is warranted under Rule 24(b)(1). All three provisions require as a threshold matter that the motion to intervene be timely filed, see Fed. R. Civ. P. 24(a), 24(b)(1), and here it was not. That alone provides a basis for affirming the district court’s denial of intervention. But Ms. Gonzalez also cannot establish that she satisfies the remaining criteria for intervention under any of these provisions. See United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004) (party seeking to intervene has burden to show requirements for intervention have been met).

 

 

A.  Ms. Gonzalez’s motion was untimely.

 

Timeliness is “the threshold requirement” for intervention of right. United States v. Oregon, 913 F.2d 576, 588 (9th Cir. 1990). This Court considers three factors to determine whether a motion to intervene is timely: (1) the stage of the proceedings at which an applicant seeks to intervene; (2) the reason for and length of the delay; and (3) the prejudice to other parties. United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996). “[A]ny substantial lapse of time weighs heavily against intervention.” Id. Here, each of the relevant factors weighs against timeliness because Ms. Gonzalez filed her motion to intervene more than five months after the filing of the proposed consent decree, well after she knew that the decree purportedly caused her injury, and at a stage where her participation would have delayed the provision of monetary and injunctive relief to victims of employment discrimination nationwide.

1.   Stage of the proceedings

In analyzing the stage-of-proceedings factor, this Court looks to the extent the district court had “substantively . . . engaged the issues in th[e] case” at the time the applicant moved to intervene. LULAC, 131 F.3d at 1303. Here, Ms. Gonzalez’s motion to intervene came after five months of litigation where the district court engaged carefully with the provisions of the consent decree and arguments presented in opposition to the decree. By the time Ms. Gonzalez moved to intervene, the district court had already considered and found unpersuasive the union’s objections (which Ms. Gonzalez avers she participated in filing, Dkt. 11 at 34) and CRD’s objections, which Ms. Gonzalez admits raised “duplicative” issues to those she sought to assert, 2-ER-323; see EEOC-SER-14, 95, 121-22; 3-ER-426. The district court had also held a 90-minute hearing where it heard argument from CRD and asked detailed questions of the parties; had requested and reviewed multiple versions of the consent decree; and had received in camera submissions regarding the calculations underlying the settlement amount. Supra at 16-17. It is clear that, by the time Ms. Gonzalez sought to intervene, “the district court ha[d] substantively—and substantially—engaged the issues in this case,” which “weighs heavily against” a finding of timeliness. LULAC, 131 F.3d at 1303; cf. Kalbers v. U.S. Dep’t of Just., 22 F.4th 816, 826 (9th Cir. 2021) (intervention motion timely where “the parties and the district court . . . had covered scarcely any legal ground together”).

Ms. Gonzalez argues that the stage of proceedings was not advanced because the consent decree had not yet been approved when she sought to intervene. Dkt. 11 at 31. But her effort “[t]o confer talismanic significance” on whether the consent decree had received final approval inappropriately “elevate[s] form over substance.” LULAC, 131 F.3d at 1303. Instead, “the timeliness inquiry demands a more nuanced, pragmatic approach,” focusing on “what had already occurred” in the litigation rather than “what had not yet occurred” at the time intervention was sought. Id. The case on which Ms. Gonzalez relies to support timeliness in similar circumstances actually undercuts her position. Dkt. 11 at 31. In Zepeda v. PayPal, Inc., No. 10-cv-02500, 2014 WL 1653246 (N.D. Cal. Apr. 23, 2014), the court in fact denied intervention, expressing concern that intervention at that stage—after “extensive mediated settlement negotiations”— would cause prejudice by “delay[ing] the potential resolution of this case.” Id. at *8. And in Zepeda the stage of proceedings was not even as advanced as here, given that the parties there had not yet filed a final motion for preliminary approval of the settlement in question. Id. at *3. The advanced stage of proceedings at which Ms. Gonzalez sought to intervene thus weighs against a finding of timeliness.  

2.   Reason for and length of delay

“A party seeking to intervene must act as soon as he knows or has reason to know that his interests might be adversely affected by the outcome of the litigation.” Oregon, 913 F.2d at 589 (citation omitted). Here, Ms. Gonzalez knew that the consent decree stood to impact her purported interests well before she moved to intervene in March 2022. Ms. Gonzalez concedes that she was aware of and opposed to this litigation as early as October 2021, when she joined with the union in “voic[ing] [her] concerns” regarding the decree. Dkt. 11 at 34. Indeed, Ms. Gonzalez tweeted criticism regarding this litigation and the proposed settlement on December 31, 2021; January 18, 2022; and February 10, 2022. ER-293-304. This prior knowledge of the purported injury arising from the consent decree weighs heavily against intervention. Washington, 86 F.3d at 1504 (impermissible delay where intervenor’s “own documents . . . indicate that it believed [the parties]
. . . w[ere] hostile to its interests since long before” intervention motion was filed); SurvJustice, Inc. v. DeVos, No. 18-cv-00535, 2019 WL 1427447, at *4 (N.D. Cal. Mar. 29, 2019) (fact that proposed intervenor had “tweeted disagreement” with litigation previously was evidence of impermissible delay in seeking intervention).

         Nor does Ms. Gonzalez provide any valid reason for her delay in moving to intervene. Ms. Gonzalez attributes her delay to a “wait and see” approach of determining whether the district court would accept the union or CRD’s objections. Dkt. 11 at 14, 34-35. But intervenors should not “let the fate of [another entity’s] motion to intervene govern [their] decision whether to apply for intervention.” See Washington, 86 F.3d at 1504. The fact that Ms. Gonzalez “attempted . . . to participate” in the litigation but stopped short of actually moving to intervene shows not excusable delay but instead a failure to act diligently to protect her purported interests. Oregon, 913 F.2d at 589. Moreover, Ms. Gonzalez knew in December 2021 that the district court had rejected both the union’s objections and CRD’s intervention motion and yet did not file her motion to intervene until March 2022. EEOC-SER-95, 101. These are not the actions of an intervenor moving swiftly to safeguard her interests. Ms. Gonzalez thus fails to supply a satisfactory reason for the delay in filing her motion.

3.   Prejudice to existing parties

Prejudice to existing parties is “the most important consideration in deciding whether a motion for intervention is untimely.” United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984) (citation omitted). Allowing Ms. Gonzalez to intervene on the eve of approval of the consent decree, for the purpose of raising concededly “duplicative” arguments, 2-ER-323, would have created unnecessary and unfair delay in providing monetary and injunctive relief (including counseling) for claimants who had already been waiting several months for the consent decree to be approved. See Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978) (“[C]ourts have emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed. Here, the decree is already being fulfilled; to countermand it now would create havoc and postpone the needed relief.”).

Ms. Gonzalez argues that no such prejudice would have arisen because she did not “seek[] to void the entire decree and have the parties start from scratch.” Dkt. 11 at 30-31. This argument is disingenuous. Ms. Gonzalez maintains that her concerns can easily be addressed by allowing claimants to recover under the decree without releasing their analogue state-law claims. She portrays this as a mere typographical issue that could be “eas[ily] fix[ed]” by “includ[ing] a box on the Release form giving workers the choice of whether to waive any state law claims.” Dkt. 11 at 33. It strains credulity to think that Activision would have yielded to such a fundamental change to the consent decree after its extended negotiations with EEOC, as such a change would potentially subject Activision to additional legal liability. Where, as here, granting a belated motion to intervene could “upset the delicate balance” the parties reached after protracted negotiations, intervention is disfavored. Washington, 86 F.3d at 1504; see also City of Emeryville v. Robinson, 621 F.3d 1251, 1260 (9th Cir. 2010) (recognizing potential “‘policy-based’ concerns that allowing intervention might scuttle a recently negotiated, hard-won” settlement).

Ms. Gonzalez next argues that “both Parties have been on notice” of her concerns since the union filed its objections in October 2021. Dkt. 11 at 32. But the prejudice claimed here is not unfair surprise. Instead, the relevant prejudice was the delay in providing relief to victims of employment discrimination that would have resulted had Ms. Gonzalez been permitted to intervene to raise arguments that—no matter how foreseeable—had already been raised by the union and CRD and rejected by the district court.

Finally, Ms. Gonzalez argues that “[a]ny harm or prejudice” to the parties “is self-inflicted” because it resulted from their “unwillingness” to concede to the objections she raised. Dkt. 11 at 32-33. But the parties had no obligation to acquiesce to demands that both they and the district court believed to be unfounded, and their refusal to do so did not make Ms. Gonzalez’s belated assertion of these demands any less prejudicial. Her motion to intervene was untimely.

B.  Ms. Gonzalez failed to establish a statutory right to intervene under Rule 24(a)(1).

 

Rule 24(a)(1) provides for intervention by a person who “is given

an unconditional right to intervene by a federal statute . . . .” Fed. R. Civ. P. 24(a)(1). Such intervention is allowed only “[o]n timely motion,” however, and thus the untimeliness of Ms. Gonzalez’s motion itself defeats intervention under this provision. Fed. R. Civ. P. 24(a); supra at 26-33.

         In any event, Ms. Gonzalez did not establish an unconditional right to intervene afforded by statute (here, Title VII). Although Title VII provides that “[t]he person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission,” 42 U.S.C.
§ 2000e-5(f)(1), Ms. Gonzalez did not show that she qualifies as a “person[] aggrieved” under this provision.

To be sure, the term “person[] aggrieved” covers an individual who files a charge that gives rise to the underlying EEOC civil action in which that individual seeks intervention. See, e.g., EEOC v. GMRI, Inc., 221 F.R.D. 562, 563 (D. Kan. 2004). But Ms. Gonzalez did not file the charge that prompted the underlying litigation; it is undisputed that the charge that prompted this lawsuit and consent decree was the Commissioner charge filed in September 2018 (before Ms. Gonzalez even began her Activision employment).

In fact, Ms. Gonzalez does not assert that she filed an EEOC charge at all. Instead, she contends that she filed a charge with CRD, and then states vaguely that “to the extent that any harassment or retaliation claims were filed with CRD, such charges also may be deemed filed with the EEOC.” Dkt. 11 at 19-20. But the document that Ms. Gonzalez identifies as her CRD charge, Dkt. 11 at 19 (citing 2-ER-329-35), is the form an individual submits to request an immediate right-to-sue notice from CRD. 2-ER-272 at ¶ 3, 2-ER-275-88. The first page of this standard CRD form specifically states that, for individuals who avail themselves of this process, CRD “will not investigate your complaint” and “will not file your complaint with [EEOC] . . . .” 2-ER-275. Ms. Gonzalez omitted the first page of this document in her filing below, but EEOC introduced it into the record. Compare 2-ER-329-41 (Ms. Gonzalez’s version of the form), with 2-ER-275-88 (complete version of the form submitted by EEOC). In sum, it appears that Ms. Gonzalez chose to raise her allegations through a process that avoids the filing of a charge with EEOC and then omitted the portion of the relevant document that makes that fact clear.  

         Ms. Gonzalez argues that she is nonetheless entitled to intervene under Title VII because she is a member of the class contemplated by the consent decree. Dkt. 11 at 21-22, 24. But this avenue also fails because Ms. Gonzalez has not offered evidence that she qualifies as a member of this class. Ms. Gonzalez never submitted a claims form to determine whether her claims fell within the scope of the decree. Dkt. 11 at 24 (indicating that Ms. Gonzalez chose not to opt in to the decree). Nor did Ms. Gonzalez make any showing that her claims are within the scope of the present litigation, which covers claims for sexual harassment, pregnancy discrimination, and related retaliation. 3-ER-440 at ¶¶ 21-25. Ms. Gonzalez argues that she “engaged in protected opposition conduct” that resulted in retaliation, bringing her within the scope of the decree’s retaliation claims.[3] Dkt. 11 at 20. But, to fall within the scope of this litigation, the retaliation at issue must be related to opposing sexual harassment or pregnancy discrimination. See 3-ER-440 at ¶ 25 (complaint in this litigation defining retaliation claim as related to “rejecting and/or complaining about sexual harassment and/or complaining about pregnancy discrimination”).

Here, Ms. Gonzalez does not allege that she opposed sexual harassment or pregnancy discrimination. Instead, both her filing with CRD and her declaration below alleged vaguely that she spoke out “over workplace problems and the need to encourage Diversity, Equity and Inclusion (DEI)” initiatives. 3-ER-328 ¶ 2; see 2-ER-195 (“[M]s. Gonzales [sic] spoke up and encouraged the adoption of [DEI] initiatives to create positive change and to foster a better work environment.”). Ms. Gonzalez does not specify what these workplace problems were: they could have concerned issues entirely apart from sexual harassment or pregnancy discrimination, such as pay disparities,  promotion denials, or discriminatory work assignments based on sex. Ms. Gonzalez thus points to no evidence that her retaliation claim falls within the scope of the present litigation. See EEOC v. Herb Hallman Chevrolet, Inc., No. 19-cv-00537, 2020 WL 534046, at *3 (D. Nev. Feb. 3, 2020) (prospective intervenor failed to establish right to intervene under Title VII where he provided “no indication that the EEOC’s claims” for sex-based discrimination and hostility “substantially affect or overlap” with his retaliation claim); EEOC v. Fry’s Elecs., Inc., 770 F. Supp. 2d 1168, 1173 (W.D. Wash. 2011) (same where prospective intervenor’s claim involved “different conduct”; the intervenor “allege[d] that she was subjected to a hostile work environment” while the charging party “allege[d] he was fired for opposing workplace discrimination”).

         Ms. Gonzalez’s failure to provide the necessary specificity is fatal because “it is incumbent on” her, as “the party seeking to intervene,” to “show that all the requirements for intervention have been met.” Chamness v. Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013) (citation and alterations omitted). Despite the fact that EEOC below highlighted the “barebones” nature of Ms. Gonzalez’s allegations of protected conduct, 2-ER-264, Ms. Gonzalez never sought to supply additional information about the protected activity in which she engaged by, for example, submitting a supplemental declaration or an amended filing with CRD. Even in her unsworn assertions in her briefs, she speaks only in vague and hypothetical terms. See Dkt. 11 at 13 (asserting that she spoke out against unspecified “working conditions”); 2-ER-176 (arguing that encouraging DEI initiatives “is simply one way of stating that the work environment is hostile to underrepresented groups, including women,” without specifying the underrepresented groups that Ms. Gonzalez’s request for DEI concerned). Her silence as to this critical factual information speaks volumes.

         Ms. Gonzalez misrepresents EEOC as having argued that employees must wait for unfair working conditions to “deteriorat[e]” into a “legally actionable” hostile work environment before opposing such conditions amounts to protected activity. Dkt. 11 at 21. But EEOC is arguing not that Ms. Gonzalez’s purported opposition came too early but instead that she failed to establish that her opposition concerned sexual harassment or pregnancy discrimination. Ms. Gonzalez also claims that EEOC is arguing that “a hostile work environment on the basis of sex” is “not . . . a form of sexual harassment.” Dkt. 11 at 22 (emphasis omitted). Again, not so. Instead, EEOC’s argument is that Ms. Gonzalez failed to show that her call for DEI initiatives had anything to do with “a hostile work environment on the basis of sex” in the first instance.

         Ms. Gonzalez next argues that EEOC “effectively conceded” that she falls within the scope of the settlement “by footnoting in its opposition that [she] can participate in the settlement.” Dkt. 11 at 22. She is mistaken. The footnote to which Ms. Gonzalez refers simply stated that she could file a claim form to see if she did fall within the class eligible for relief under the decree. See 2-ER-264 n.2 (“[W]hether or not Ms. Gonzalez will be able to demonstrate she is an Eligible Claimant under the rubric provided in the claim form is still an open question and one that can only be answered upon entry of the Decree.”). Because Ms. Gonzalez never sought to participate in the decree’s claims process, Dkt. 11 at 24, EEOC never made such an eligibility determination.

Ms. Gonzalez is also wrong that the decree defines the class as including all “individual[s] who w[ere] . . . employee[s] at any of Defendants at any time since September 1, 2016.” Dkt. 11 at 24 (quoting 2-ER-349). This quotation refers to the decree’s definition of a “potential claimant.” 2-ER-349 (emphasis added). The decree establishes a detailed process by which these potential claimants submit sixteen-page claims forms to see if they do in fact have claims that bring them within the scope of the class. 1-ER-19 (explaining that “EEOC will review the information in the Claims Form and determine if the individual . . . could assert a viable claim for sexual harassment, pregnancy discrimination, or related retaliation”); 1-ER-60-75 (claims form). Ms. Gonzalez has thus not met her burden to show that she qualifies as a “person[] aggrieved” under Title VII such that she has an unconditional right to intervene under Rule 24(a)(1).

C.  Ms. Gonzalez did not argue below that Rule 24(a)(2) entitled her to intervene and, in any event, she cannot meet that Rule’s requirements.

 

Ms. Gonzalez did not argue below that she was entitled to

intervene pursuant to Rule 24(a)(2). ER-317-26. To the extent she now seeks to argue in the alternative that intervention can be premised on that provision, see Dkt. 11 at 25 (asserting that she “[n]onetheless . . . satisfies the [Rule 24(a)(2)] standard”), that argument is forfeited. See United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994) (“Issues not presented to the district court cannot generally be raised for the first time on appeal.”).

         In any event, Ms. Gonzalez does not satisfy the criteria to intervene under Rule 24(a)(2). To qualify for intervention under that provision: (1) the applicant must timely move to intervene; (2) the applicant must have a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the party’s ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by existing parties. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). In addition, a prospective intervenor under this provision must possess Article III standing to pursue relief that differs from what the parties sought (as Ms. Gonzalez’s requested relief did here). Town of Chester v. Laroe Ests., Inc., 137 S. Ct. 1645, 1651 (2017). Here, Ms. Gonzalez cannot establish that she satisfies the required elements under Rule 24(a)(2) or that she has standing to pursue the relief she sought through intervention.

1.   Ms. Gonzalez’s motion to intervene was untimely.  

For the reasons explained above, Ms. Gonzalez’s motion to intervene was untimely. Supra at 26-33. This alone is fatal to intervention under Rule 24(a)(2).

2.   Ms. Gonzalez lacks a protectable interest that the consent decree stands to impair or impede.  

 

To establish a significant protectable interest, a prospective intervenor must possess an “interest [that] is protected by law” and must also show “a relationship between the legally protected interest” and the litigation in which intervention is sought. Alisal Water Corp., 370 F.3d at 919. Here, Ms. Gonzalez fails to show that the consent decree has a relationship to any legally protected interest she might possess. Because the consent decree is an opt-in decree for which participation is completely voluntary, the decree will have no effect at all on the rights or claims of individuals like Ms. Gonzalez who choose not to participate. Ms. Gonzalez remains free to pursue any and all remedies she might have under federal and/or state law, entirely unencumbered by the purported inadequacies of the consent decree. See United States v. City of Jackson, 519 F.2d 1147, 1151-53 (5th Cir. 1975) (denying intervention to challenge adequacy of consent decree where employees “remain[ed] free to refuse” to participate in decree and could “bring suit to establish . . . entitlement to a greater amount”).  

Ms. Gonzalez attempts to avoid this conclusion by asserting a preference both to obtain federal relief under the decree and to pursue state-law remedies separately, which she claims the decree’s release provisions prevent her from doing. Dkt. 11 at 39-40; Dkt. 11 at 26 (cross-referencing this discussion when articulating purported protectable interest under Rule 24(a)(2)). This preference does not amount to a legally protected interest under Rule 24. Ms. Gonzalez appears to acknowledge that, irrespective of the decree, she “can vindicate both [her] federal and state law rights” by filing an individual lawsuit; her complaint is only that pursuing a separate individual action would be more burdensome and inefficient than securing federal relief through the decree. Dkt. 11 at 40-41. But “[m]ere inconvenience
. . . caused [to an intervenor] by requiring him to litigate separately is not the sort of adverse practical effect contemplated by Rule 24(a)(2).” Blake v. Pallan, 554 F.2d 947, 954 (9th Cir. 1977); see also City of Jackson, 519 F.2d at 1153 (“A procedural interest . . . in having one’s rights vindicated as a member of a class in a class action rather than through an individual lawsuit [] is not within [Rule 24(a)(2)]’s contemplation.”).

Ms. Gonzalez next argues that the consent decree injures her by granting Activision “permission to engage in spoliation of records.” Dkt. 11 at 41. As an initial matter, because Ms. Gonzalez has chosen not to participate in the decree, there is no chance that the provisions to which she objects will impact her employment records in any way. See 1-ER-24 (relevant provisions apply only to “Eligible Claimant[s]”).

In any event, the decree does not contemplate or sanction the destruction of evidence. Instead, the decree protects employees from retaliation in their efforts to find future employment by giving them the option to have references to their allegations of discrimination segregated from their personnel file. 1-ER-24-25. But far from mandating the destruction of such documents, the consent decree specifically requires their retention, stating that “Defendants must retain a record of any information removed from an Eligible Claimant’s personnel file . . . consistent with the recordkeeping provisions” of the decree or as “otherwise required by law.” 1-ER-24 (emphasis added). And the recordkeeping provisions of the decree, in turn, specify that Activision will ensure centralized tracking of information and will make records available to EEOC promptly upon request. 1-ER-46-48. Moreover, if Activision were to destroy documents relevant to a pending lawsuit, it would be subject to an adverse spoliation inference under California law. Cal Evid. Code § 413. As the district court recognized, there is “no serious possibility” that the decree “purport[s] to allow or mandate destruction of evidence relevant to litigation.” EEOC-SER-96.

Ms. Gonzalez’s concern that even segregation of these documents from personnel files would “interfer[e] with” employees’ “right of access to these documents” is unfounded. Dkt. 11 at 41. Employees will retain the right to access the relevant documents because those documents will only be removed from their personnel files at their request and upon their review. See 2-ER-162-63 (EEOC will ask claimants “whether they consent to the EEOC requesting their personnel file from Defendants,” will “coordinate review of the documents with the Eligible Claimant,” and claimant will be able to obtain copy of segregated documents); 2-ER-158 (claims form advising claimant that EEOC “will consult with you prior to instructing Activision . . . to remove any documents”); see also What You Should Know About: EEOC’s Settlement with Activision Blizzard, https://www.eeoc.gov/what-you-should-know-about-eeocs-settlement-activision-blizzard (last visited Oct. 31, 2022)  (“The Consent Decree provides eligible claimants with the option of removing references to allegations of sexual harassment, pregnancy discrimination, or related retaliation [from employment records] . . . . The EEOC will only ask Activision Blizzard to take such an action if the eligible claimant requests it and the EEOC agrees that it is appropriate.”).[4] Ms. Gonzalez’s baseless claim of spoliation of evidence thus provides no ground for intervention.

3.   EEOC adequately represents any protectable interest Ms. Gonzalez possesses.

 

Intervention is impermissible if “existing parties adequately

represent” the protectable interest that the main action stands to impair or impede. Fed. R. Civ. P. 24(a)(2). Ms. Gonzalez argues that EEOC does not adequately represent her interest in “enforc[ing] her rights under state statutes” because “enforcement and protection of state law rights is outside the EEOC’s jurisdiction.” Dkt. 11 at 26. But the relevant question under Rule 24 is whether EEOC adequately represents an interest that the main action stands to impede or impair. Here, as explained above, the consent decree has no impact at all on Ms. Gonzalez’s ability to pursue state-law remedies. Supra at 43.

         Ms. Gonzalez next pivots away from her own specific interests, instead arguing that EEOC failed to adequately represent the interests of “employees” and “the nation at large” in negotiating the consent decree here. Dkt. 11 at 27. This argument is misplaced, given that the relevant interest under Rule 24 must be one that the intervenor herself claims. Fed. R. Civ. P. 24(a)(2). It is also unpersuasive. As the entity “entrusted” with “[p]rimary responsibility for enforcing Title VII,” EEOC v. Shell Oil Co., 466 U.S. 54, 61-62 (1984), EEOC is presumed to adequately represent the interests of victims of employment discrimination nationwide. See Arakaki, 324 F.3d at 1086 (describing presumption of adequacy when “the government is acting on behalf of a constituency it represents”).

Ms. Gonzalez fails to make the “very compelling showing” necessary to rebut this presumption. Id. Instead, she points only to differences of opinion about the litigation strategy EEOC should have adopted, which does not suffice to overcome the presumption of adequacy of representation. See United States v. City of Los Angeles, 288 F.3d 391, 402-03 (9th Cir. 2002) (“mere[] differences in [litigation] strategy . . . are not enough to justify intervention as a matter of right”). Especially in the context of a settlement agreement, where inevitable trade-offs and concessions must be made, “the mere fact that a particular decision” is claimed to be “adverse to certain interests” does not indicate that those interests “were not adequately represented in the decisionmaking process or in the decision itself.” Alleghany Corp. v. Kirby, 344 F.2d 571, 574 (2d Cir. 1965); see also EEOC v. United Air Lines, Inc., No. 73 C 972, 1995 WL 103658, at *5 (N.D. Ill. Mar. 3, 1995) (“[T]he fact that [prospective intervenors] are unhappy with the relief obtained by the EEOC is not, by itself, an indication of the inadequacy of representation in this public enforcement action.”). Ms. Gonzalez thus fails to satisfy the requirements for intervention under Rule 24(a)(2).

4.   Ms. Gonzalez lacks Article III standing to pursue the relief she sought through intervention.

 

Under Rule 24(a)(2), a prospective intervenor of right “must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing.” Town of Chester, 137 S. Ct. at 1651. Ms. Gonzalez sought to intervene to “object to the terms” of the consent decree “and to request a fairness hearing.” ER-318. This relief is diametrically opposed to the relief EEOC and Activision sought below (namely, for the consent decree to be approved without the need for additional hearings). Because Ms. Gonzalez lacks Article III standing, supra at 24-25, she cannot pursue this separate relief and thus “may not intervene of right” pursuant to Rule 24(a)(2). See In re Volkswagen “Clean Diesel” Mktg., Sales Pracs. & Prods. Liab. Litig., 894 F.3d 1030, 1043 (9th Cir. 2018) (because prospective intervenor “lacks standing for the relief” he seeks that “goes beyond what the United States sought in its suit,” he “may not intervene of right”); Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228, 1233-35 (9th Cir. 2017) (prospective intervenors could not “pursue different relief from that sought by” the plaintiff because they lacked Article III standing).  

D.  The district court acted within its discretion in denying permissive intervention under Rule 24(b)(1).

 

Rule 24(b)(1)(B) provides that “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Timeliness is a threshold requirement for permissive intervention that is analyzed “more strictly” in that context than for intervention of right. LULAC, 131 F.3d at 1308; Fed. R. Civ. P. 24(b)(1). The untimeliness of Ms. Gonzalez’s motion to intervene therefore is alone fatal to her bid for intervention. Supra at 26-33.

But even if Ms. Gonzalez had met the threshold timeliness requirement, it was well within the district court’s broad discretion to deny permissive intervention based on the circumstances here. Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998) (“Even if an applicant satisfies [Rule 24(b)’s] threshold requirements, the district court has discretion to deny permissive intervention.”). First, for the reasons explained above, supra at 31-33, Ms. Gonzalez’s intervention would have “unduly delay[ed] or prejudice[d] the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Second, Ms. Gonzalez’s intervention would in no way have “contribute[d] to full development of the underlying . . . issues” in the litigation. Perry v. Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011) (citation omitted). Ms. Gonzalez conceded below that the issues she wished to raise were “duplicative” with those already raised by CRD and rejected by the district court.[5] 2-ER-323. The district court was entitled “to find that the delay occasioned by intervention outweighed the value added by [Ms. Gonzalez’s] participation in the suit.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 956 (9th Cir. 2009); Mineworkers’ Pension Scheme v. First Solar, Inc., 722 F. App’x 644, 646 (9th Cir. 2018) (appropriate to deny permissive intervention when intervenor seeks to “circumvent[] court’s prior rulings”). Finally, given that Ms. Gonzalez identifies no protectable interest implicated by the decree, much less one that EEOC inadequately represents, supra at 42-49, neither the “nature and extent of [her] interest” nor potential inadequacy of representation supported permissive intervention here. Spangler v. Pasadena Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977) (articulating these factors). The district court did not abuse its broad discretion in denying permissive intervention here.

 

 

III.       The district court acted well within its discretion in approving the consent decree and declining to hold a fairness hearing.

 

As noted above, this Court lacks jurisdiction to consider Ms.

Gonzalez’s appeal of the consent decree itself. Supra at 22-25. In any event, however, Ms. Gonzalez has not made anything approaching a “strong showing” that the district court “clear[ly] abuse[d] [its] discretion” in approving the consent decree here. Davis, 890 F.2d at 1445 (citation omitted); see also Randolph, 736 F.2d at 529 (recognizing need to “pay deference to the judgment of the government agency” that has negotiated a proposed settlement).

Ms. Gonzalez’s first tactic is to impugn the integrity of the district court proceedings, claiming that “[i]t was clear the court intended to approve the consent decree and was loathe to permit any intervention that would delay or derail that approval, regardless of the concerns raised.” Dkt. 11 at 10; see also id. at 18 (claiming the court “failed . . . to independently scrutinize the terms of the decree”). This ignores the careful attention and consideration the experienced district court gave to the terms of the consent decree. See EEOC-SER-153 (district court judge saying “I’ve been on this Court since 2003. I’ve done many, many more class action reviews than I care to count[.]”). Prior to approving the decree, the district court held two hearings, asked detailed questions of EEOC and Activision, considered objections from CRD and the union, and requested and reviewed several edited versions of the decree. See EEOC-SER-98 (initial hearing where district court posed questions to EEOC and Activision, responded to objections from the union, and heard argument from CRD); EEOC-SER-68 (EEOC/Activision’s joint filing responding to court-requested clarifications); 3-ER-345 (submission of first amended consent decree); EEOC-SER-41 (EEOC/Activision’s application for submission of documents for in camera review addressing district court’s questions regarding calculations underlying settlement figure); EEOC-SER-39 (district court order granting in camera review); EEOC-SER-14 (CRD’s submission of written objections to consent decree); 2-ER-167 (district court order requesting additional clarifications from parties); 2-ER-159 (EEOC/Activision’s joint filing responding to further requested clarifications); 2-ER-87 (submission of second amended consent decree); 1-ER-80 (subsequent hearing regarding the decree with counsel for EEOC, Activision, and CRD); 2-ER-83 (EEOC/Activision’s joint submission of final documents incorporating requested revisions). This can hardly be characterized as a “rubber stamp that constitutes an abuse of discretion.” Dkt. 11 at 45 (internal quotation marks omitted).

And, far from refusing to consider the arguments of Ms. Gonzalez and other entities, the district court considered written objections from the union and allowed CRD to participate as amicus, including allowing submission of a detailed brief and participation in two hearings. EEOC-SER-98, EEOC-SER-14, 1-ER-80. The fact that the district court ultimately found these objections to be “inaccurate,” unhelpful, or unpersuasive, EEOC-SER-121-22; 2-ER-169, does not mean that the court refused to consider them in the first instance.

         Ms. Gonzalez next argues that the district court abused its discretion by failing to hold a “fairness hearing.” Dkt. 11 at 37. The only legal authority she cites for the necessity of a fairness hearing, Dkt. 11 at 37, instead concerns the inapposite question of when oral argument should be permitted for summary judgment motions, and in fact undermines her position by finding no reversible error in the failure to hold such argument. See Mahon v. Credit Bureau of Placer Cnty., Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (district court did not err by failing to allow oral argument on summary judgment motion); Houston v. Bryan, 725 F.2d 516, 517-18 (9th Cir. 1984) (no reversible error in declining to hold oral argument on summary judgment motion, even where local rules required such argument). And, to the extent Ms. Gonzalez’s complaint is that the district court should have entertained oral argument regarding the decree, she fails to explain how the requested argument would differ from the two hearings where the district court posed detailed questions to the parties and allowed argument by CRD. EEOC-SER-98, 1-ER-80. To the extent Ms. Gonzalez instead seeks to import the mandatory fairness hearing envisioned by Rule 23, this is inappropriate because “Rule 23 is not applicable to an enforcement action brought by the EEOC” under Title VII. Gen. Tel. Co., 446 U.S. at 323; see also Commc’ns Workers of Am. v. N.J. Dep’t of Pers., 282 F.3d 213, 219-20 (3d Cir. 2002) (Rule 23 fairness hearing requirement “inapplicable” to Title VII cases brought by the EEOC).

         Ms. Gonzalez next argues that the district court failed to “compare the benefits of the proposed decree with the benefits that members of the class would obtain with a favorable verdict at trial.” Dkt. 11 at 38. In Ms. Gonzalez’s estimation, a better outcome would have resulted following trial, by allowing for federal relief without any alleged “impingement” on the ability to seek relief in state court. Dkt. 11 at 39. But, as Ms. Gonzalez herself recognizes, a proper comparison must also account for “the delay and risk of trial” and “whether any delay in obtaining benefits dilutes the benefits of the decree.” Dkt. 11 at 39. She is noticeably silent about such considerations here. The authority on which Ms. Gonzalez relies cautions against precisely the sort of “unfounded predictions” of more favorable results at trial that she advances here. Officers for Just. v. Civ. Serv. Comm’n of City & Cnty. of S.F., 688 F.2d 615, 629 (9th Cir. 1982) (“There is simply no indication in the record, nor a showing . . . on this appeal, that any judgment reached after a full trial would be sufficiently large, when discounted, to reward the class members for their patience.”).

         Ms. Gonzalez next repeats her baseless claim that the decree blesses “spoliation of records.” Dkt. 11 at 41. This claim is false, supra at 44-47, and provides no basis to disturb the district court’s discretion in approving the decree. Nor is Ms. Gonzalez persuasive in framing the consent decree’s option to release state-law claims in exchange for federal relief as “an impermissible overreach of agency jurisdiction.” Dkt. 11 at 40. She claims that “courts have previously rejected such waivers of state law rights in EEOC consent decrees,” Dkt. 11 at 40, but she cites to only one decision, where the court did not reject an EEOC consent decree but instead refused an employer’s request to intervene in EEOC settlement negotiations. EEOC v. Grays Harbor Cmty. Hosp., 791 F. Supp. 2d 1004, 1009 (W.D. Wash. 2011) (emphasizing that EEOC has broad discretion to “decid[e] which claims to bring and whether and on what basis to settle such claims”).

         Ms. Gonzalez next argues that the consent decree disserves judicial economy by “forc[ing]” individuals to file their own lawsuits in order to recover under Title VII. Dkt. 11 at 40. But this simply describes the process that Congress set up under Title VII for individuals to seek redress. No one is “forced” to participate, but individuals must pursue relief if they want it. Individuals choosing to pursue relief on their own do not constitute a strain on judicial economy; they simply reflect the normal operation of the law. And Ms. Gonzalez ignores the countervailing injury to judicial economy that would arise if the consent decree unraveled and the parties were forced to litigate this complex case. Such a result would undermine the “overriding public interest in settling and quieting litigation,” United States v. McInnes, 556 F.2d 436, 441 (9th Cir. 1977), which is heightened in the Title VII context where Congress has selected “[c]ooperation and voluntary compliance
. . . as the preferred means for achieving” Title VII’s aims. Alexander, 415 U.S. at 44.

CONCLUSION

For the foregoing reasons, the district court’s order denying intervention should be affirmed. Ms. Gonzalez’s appeal of the consent decree should be dismissed for want of jurisdiction or, in the alternative, the district court’s order approving the consent decree should be affirmed.

STATEMENT OF RELATED CASES

CRD has filed two appeals (now consolidated) from the district court’s orders denying their motions to intervene in the same district court proceedings at issue here. See EEOC v. Activision Blizzard, Inc., et al., Case Nos. 22-55060, 22-55587.

 

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Chelsea C. Sharon

CHELSEA C. SHARON

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity
   Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2889

chelsea.sharon@eeoc.gov

 

October 31, 2022

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

Form 8. Certificate of Compliance for Briefs

Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf

9th Cir. Case Number(s) __22-55515__________________________

I am the attorney or self-represented party.

This brief contains __12,974 words, excluding the items exempted by Fed. R. App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P. 32(a)(5) and (6).

I certify that this brief (select only one):

[ X ] complies with the word limit of Cir. R. 32-1.

[  ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.

[  ] is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5), Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).

[  ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.

[  ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select only one):

[  ] it is a joint brief submitted by separately represented parties;

[  ] a party or parties are filing a single brief in response to multiple briefs; or

[  ] a party or parties are filing a single brief in response to a longer joint brief.

[  ] complies with the length limit designated by court order dated _____________.

[  ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).

 

Signature __s/ Chelsea C. Sharon_______________ Date 10/31/2022          

(use “s/[typed name]” to sign electronically-filed documents)

 

 

CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of October, 2022, I filed the foregoing brief electronically in PDF format through the Court’s CM/ECF system. I further certify that service of this document on counsel for Ms. Gonzalez and for Activision was accomplished via the Court’s CM/ECF system.

 

/s/ Chelsea C. Sharon

CHELSEA C. SHARON