No. 05-8006
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Respondent.
v.
CATERPILLAR INC.,
Defendant-Petitioner.
______________________________
On Petition for Permission to Appeal from the
United States District Court for the Northern District of Illinois
Hon. Rebecca R. Pallmeyer
District Court No. 03 C 5636
______________________________
OPPOSITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
TO PETITION FOR PERMISSION TO APPEAL UNDER 28 U.S.C. ' 1292(b)
______________________________
In this Title VII enforcement action, the Equal Employment Opportunity Commission (AEEOC@) claims that Caterpillar Inc. has engaged in a pattern or practice of unlawful discrimination by subjecting women to sexual harassment and retaliation, and failing to correct such harassment and retaliation at its manufacturing plant in Aurora, Illinois. The district court rejected Caterpillar=s motion to narrow the Commission=s claim to a single claimant and, on a motion for reconsideration, rejected Caterpillar=s argument that the class of claimants should consist only of those women victimized by one harasser. The district court instead held that the Commission could properly pursue a claim on behalf of female employees at the Aurora facility.
Caterpillar petitions for permission to appeal the denial of partial summary judgment under 28 U.S.C. ' 1292(b), which permits interlocutory review of Aa controlling question of law as to which there is substantial ground for difference of opinion@ if Aan immediate appeal from the order may materially advance the ultimate termination of the litigation.@ Caterpillar seeks immediate review of two questions, one questioning whether the charge provided an adequate basis for the Commission=s action, and the other questioning whether the district court should have conducted an inquiry into the Commission=s investigation. See Petition (APet.@) at 20. The district court found that only the investigation question met the requirements to permit interlocutory review under section 1292(b). R.44 (Order at 3).[1] The district court refused to certify that the charge question met the standards of 28 U.S.C. ' 1292(b). Id. Because neither of these questions satisfies all four statutory criteria established in section 1292(b), Caterpillar=s Petition must be denied.
The charge question, which the district court refused to certify under section 1292(b), challenges the EEOC=s authority to sue to redress widespread sexual harassment under section 707 of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e-6, where the underlying charge did not allege a pattern or practice of discrimination. Caterpillar does not challenge the Commission=s ability to redress widespread sexual harassment under section 706 of the Civil Rights Act, 42 U.S.C. ' 2000e-5, however, nor could it in light of Supreme Court and Seventh Circuit authority. Because the Commission=s action in this case was brought pursuant to both statutory provisions, the charge question does not present a controlling question of law.
The investigation question certified by the district court seeks a ruling from this Court that a district court must conduct an inquiry into the Commission=s investigation in cases brought by the Commission whenever the Letter of Determination finds discrimination broader than that specifically alleged in the initial charge. Caterpillar proffers two rationales for its contention B namely, notice to the employer and assurance that the Commission=s determination was grounded in facts B but neither provides legal support for its argument. Both the statute and overwhelming case law indicate that it is the Letter of Determination, not the investigation, that provides the requisite notice to the employer, and that the factual underpinnings for the Determination should be assessed in the course de novo judicial proceedings and not at a preliminary hearing into the adequacy of the investigation. In short, there is no contestable issue of law. This question also fails to meet the remaining criteria for section 1292(b) certification because of the particular facts surrounding the Aurora facility and the job duties of the alleged harasser named in the charge.
Because the questions raised by Caterpillar do not meet the statutory criteria of section 1292(b), the EEOC urges this Court to deny the Petition for permission to appeal.
BACKGROUND
Karon Lambert, formerly an Industrial Hygiene & Safety Supervisor at Caterpillar Inc.=s facility in Aurora, Illinois, filed a charge with the Commission alleging sexual harassment and retaliation leading to her termination. R.1-R.3. The charge alleged that her supervisor, the facility=s Safety and Security Manager, made unwanted sexual comments and sexual advances. More specifically, the charge alleged that the supervisor, Robert Garcia, made Asexual comments about being a part of his >harem,=@ identified women at the plant who were Aattracted to him,@ identified female employees Awho had >good looking boobs,=@ and made attempts to touch Lambert=s breasts. R.2. Lambert alleged that after she explicitly rejected Garcia=s sexual advances he began to find flaws in her work performance in order to justify terminating her. R.2-R.3. Finally, Lambert alleged that she Aattempted to discuss these matters with the Labor Relations and Personnel Services Manager,@ but was Aunsuccessful as Garcia was personal friends with the manager.@ R.3.
The Commission began an investigation. As part of the investigation, the EEOC investigator interviewed witnesses at Caterpillar=s Aurora facility on May 15, 2002. On that day, the investigator informed Caterpillar officials that Awomen other than Lambert had made allegations of sexual harassment by Garcia.@ Dkt.19,[2] Exh. C & 7; see also id. at & 8. Caterpillar states that the EEOC investigator Ainterviewed only two female Caterpillar employees other than Lambert.@ Pet. at 4. In so stating, Caterpillar apparently is excluding, erroneously, the interviews the EEOC investigator conducted with female employees who worked in the Aurora facility=s safety store. The investigator interviewed several of these employees, Dkt.19, Exh. C && 3, 5, and the Commission has identified these interviewed employees and other female safety store employees as Apotential EEOC class member[s]@ for whom the Commission plans to seek relief. Dkt.11, Exh. F (EEOC Rule 26(a)(1) Disclosures). Several days after the initial interviews, on May 21st, the EEOC investigator telephoned the Caterpillar official handling Lambert=s charge to convey the information that A[w]itnesses [other than Lambert] have given me information.@ Dkt.19, Exh. C, Pl. Exh. 6. She also told the Caterpillar official that Athere is a lot of activity going on in [Caterpillar=s] plant that is questi[o]nable.@ Id.
The Commission issued a Determination letter on September 13, 2002, notifying Caterpillar that Athe evidence obtained in the investigation established reasonable cause to believe that [Caterpillar] discriminated against [Lambert] and a class of female employees@ by subjecting them to sexual harassment and retaliation. R.4. In addition to providing notice of its finding, the Determination letter also invited Caterpillar to engage in Ainformal methods of conciliation.@ R.4. The letter emphasized that any additional information the Commission obtained during conciliation would be subject to the same limits on disclosure as other information obtained during the investigation. R.4 (citing 29 C.F.R. ' 1601.26).
Caterpillar responded by letter declining the offer to conciliate. Caterpillar stated that it had reviewed the facts and believed they demonstrated that Aat no time@ was Lambert Aor any other person@ subject to actionable sexual harassment. Dkt.55, Exh. A. The Commission subsequently brought suit alleging sexual harassment and retaliation against Lambert Aand a class of women@ adversely affected by such unlawful employment practices at Caterpillar=s Aurora facility. R.6.
Caterpillar filed a motion for summary judgment seeking to narrow the class of women for whom the Commission could seek relief to Lambert alone. The district court rejected Caterpillar=s motion, holding initially that the Commission could seek relief on behalf of Awomen who worked with Garcia at Caterpillar=s Aurora facility.@ R.34. On reconsideration, the district court held that the Commission could seek relief on behalf of women who worked at the Aurora facility, not simply those who worked with Garcia. R.40.
Caterpillar sought district court certification of two issues for interlocutory appeal. The first issue was whether an individual=s charge of discrimination is an appropriate predicate for a subsequent Commission complaint alleging that an employer engaged in a pattern or practice of discrimination. The district court refused to certify the issue, holding it was Acomfortable@ with its earlier ruling on the matter that the charge was a sufficient basis for the Commission=s complaint. R.44 (Order at 3).
The district court was less comfortable with its ruling on the second issue Caterpillar raised B whether the court should scrutinize the Commission=s investigation into the alleged harassment and retaliation to determine whether the Ascope@ of the EEOC investigation in fact encompassed evidence of a pattern or practice of harassment and retaliation. The court noted that one district court had limited the size of a class on the ground that a nationwide class Awas not reasonably anticipated in the EEOC=s investigation@ of the charges of four individuals in Indianapolis. R.43-R.44 (Order at 2-3) (citing EEOC v. Jillians=s of Indianapolis, Inc., 279 F. Supp.2d 974 (S.D. Ind. 2003)). Apparently because of this one opinion, the district court held that whether a district court should examine the EEOC=s investigation to ascertain what it uncovered was a Acontestable@ issue. R.44 (Order at 3).
The district court also held the other criteria for interlocutory review were met. Most critically, the court held that the issue was Acontrolling@ because the court=s decision Aexpands the scope of the group on whose behalf EEOC seeks relief from the few dozen . . . who worked with Garcia to the hundreds of female employees at the Aurora Plant.@ R.44 (Order at 3). Resolution of the issue would speed up the litigation, the court added, because if the challenged decision were reversed it would Asignificantly@ limit the scope of discovery. R.44 (Order at 3).
PERMISSION TO APPEAL SHOULD BE DENIED
To obtain permission to appeal under section 1292(b), Athere must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation. . . .Unless all these criteria are satisfied, the district court may not and should not certify its order to us for an immediate appeal under section 1292(b).@ Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000). AEven if the district judge certifies the order under ' 1292(b), the appellant still has the burden of persuading [this Court] that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.@ Herdrich v. Pegram, 154 F.3d 362, 368 (7th Cir. 1998) (citation and internal quotation omitted). Because neither of the questions Caterpillar presents for immediate review meet the statutory requirements of section 1292(b), Caterpillar cannot show that Aexceptional circumstances@ justify an interlocutory appeal and its Petition for permission to appeal should be denied.
A. The EEOC may rely on an individual=s charge to bring a complaint alleging a pattern or practice of discrimination.
Caterpillar argues that Title VII=s statutory language Arequires@ the Commission to base any claim that an employer has engaged in a pattern or practice of discrimination on a Apattern or practice charge.@ Pet. at 7-9. Absent such a charge, Caterpillar contends, the Commission may proceed only with Aan individual claim on Lambert=s behalf.@ Dkt.11 (Def. Mem. of Law) at 8. The district court refused to certify this issue as one meriting interlocutory review by this Court. Because there is absolutely no support for Caterpillar=s position in either the statute or case law, the issue is not contestable and the district court=s refusal to certify the question was therefore correct.
Caterpillar=s argument is based solely on the language of section 707(e) of Title VII, which specifies that the Commission has the authority to Ainvestigate and act on a charge of a pattern or practice of discrimination.@ 42 U.S.C. ' 2000e-6(e). The Commission does not dispute that this provision, added to Title VII in 1972, speaks to the Commission=s authority to act on Apattern or practice@ charges; indeed, the provision=s very purpose was to transfer the authority to act on such charges from the Attorney General to the Commission. See generally Gen. Tel. Co. of the Northwest v. EEOC, 446 U.S. 316, 327-28 (1980). The problem with Caterpillar=s argument is that through the 1972 amendments Congress also conferred upon the Commission the power to bring a civil action based on any charge filed with it under section 706(f)(1). See 42 U.S.C. ' 2000e-5(f)(1). Under this provision, the Commission is plainly authorized to seek relief on behalf of a broad class of individuals. The Supreme Court has so held. In General Telephone, 446 U.S. at 320, the Court considered whether the Commission Amay seek classwide relief under ' 706(f)(1) [42 U.S.C. ' 2000e-5(f)(1)] . . . without being certified as the class representative under Rule 23.@ The Court held that section 706 conferred broad authority on the Commission to seek such relief. As the Court stated, Athe EEOC need look no further than ' 706 for its authority to bring suit in its own name for the purpose . . . of securing relief for a group of aggrieved individuals.@ Gen. Tel., 446 U.S. at 324; EEOC v. Waffle House, Inc., 534 U.S. 279, 288 (2002) (quoting General Telephone); see also EEOC v. Gen. Tel. of the Northwest, 885 F.2d 575 (9th Cir. 1989) (noting that, on remand, the case was litigated under a Apattern or practice@ analytical approach); cf. In re Bemis Co., 279 F.3d 419 (7th Cir. 2002) (applying General Telephone to EEOC harassment case). Thus, regardless of how Caterpillar would have this Court construe the requirements of section 707, section 706 plainly provides the requisite authority for the Commission=s complaint in this case, which states, inter alia, that it is bringing this action pursuant to section 706(f)(1), 42 U.S.C. ' 2000e-5(f)(1). R.6 at & 1. Moreover, because Caterpillar does not appear to be challenging the Commission=s authority to bring a class-wide claim under section 706, the section 707 issue Caterpillar would have this Court address is not a Acontrolling@ question.
Even though the Commission=s authority to bring a class-wide claim under section 706 is incontestable in light of the holding of General Telephone, Caterpillar seems to suggest that this Court requires that the Commission file a Commissioner=s charge if its investigation of an individual=s charge uncovers evidence of systemic discrimination. Pet. at 9 (citing to EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)). This suggestion of an extra-statutory requirement is without merit. As the Supreme Court explicitly stated in General Telephone, AEEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party=s complaint are actionable.@ 446 U.S. at 331; see also EEOC v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976) (if EEOC investigation uncovers information of additional discrimination, Ait is neither obliged to cast a blind eye over such discrimination nor [must it] . . . file a Commissioner=s charge thereon, thereby beginning again a repetitive investigation of the same facts already developed. . . . To require a new charge . . . would be simply a useless exercise in technical nicety.@) (cited in Gen. Tel, 446 U.S. at 331).
This Court has also observed that the AEEOC may allege in a complaint whatever illegal conduct it has uncovered during the course of its investigation, provided there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint.@ EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963, 968 (7th Cir. 1996). See also id. (noting EEOC=s Aability to challenge discrimination affecting unidentified members of a known class@) (citing EEOC v. United Parcel Serv., 860 F.2d 372, 374 (10th Cir. 1988)); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (Aclass-based claim brought by the EEOC could reasonably have been expected to grow out of . . . individual complaint of discrimination@); EEOC v. Dial Corp., 156 F. Supp.2d 926, 936-37 (N.D. Ill. 2001) (where individual filed charge alleging she was subject to sexual harassment, Commission=s complaint alleging a pattern or practice of tolerating sexual harassment was proper where there was a A>reasonable nexus= between [the individual=s] charge and the pattern-or-practice allegations in the EEOC=s complaint@); id. (Athe class-based claim could reasonably have been expected to grow out of [the individual=s] initial complaint of sexual harassment@). As a matter of law, then, the individual charge in this case plainly comprises a sufficient basis for the subsequent action alleging a pattern or practice of tolerating harassment.
Caterpillar grounds its argument for a different rule in this Court=s observation in a subpoena enforcement action that an EEOC commissioner could file a charge if the EEOC had reason to expand an investigation beyond the issues and bases raised in the initial charge. See United Air Lines, 287 F.3d at 655 n.7. In United Air Lines, the Commission was investigating a charge filed by a flight attendant alleging that United=s failure to make payments into the French social security system constituted discrimination against her and other Americans on the basis of national origin. The Commission filed a subpoena broadly seeking information about Aeach and every benefit@ received by United=s employees residing in France Aincluding, but not limited to, health insurance, unemployment insurance . . . , pension or social security benefits . . . , disability benefits, medical or family leave benefits . . . .@ United Air Lines, 287 F.3d at 646-47. The subpoena also sought detailed information about benefits for all United employees residing abroad. Id. This Court reversed the district court=s enforcement of the subpoena on the grounds that the information sought went Afar beyond@ individuals similar in position or location to the charging party, and it sought information about types of benefits never mentioned in the charge. Id. at 654-55. In light of these facts, the Court suggested that if the Commission wished to acquire such information about possible discrimination in other areas, it could file a commissioner=s charge. Id. at 655 n.7.
Nothing in the United Air Lines decision undermines the clear holdings of General Telephone and Harvey Walner that, as a matter of law, the Commission may pursue a claim alleging a pattern or practice of discrimination against a class of individuals as long as there is a Areasonable nexus@ between an individual=s charge and the subsequent complaint. The inapplicability of United Air Lines to the issue of the scope of a harassment suit based on a charge of harassment has been expressly acknowledged by another district court faced with this precise question. See EEOC v. Dial Corp., 2002 WL 1974072, *4 (N.D. Ill. 2002) (employer=s reliance on footnote 7 of United Air Lines in identical context A>is unavailing=@); petition for interlocutory appeal denied, No. 02-8002 (7th Cir. 2002). Caterpillar does not seek interlocutory review of the district court=s holding that, as a factual matter, Athere is a reasonable nexus between Lambert=s charge and the pattern and practice allegations.@
B. Because the Commission=s Letter of Determination notified Caterpillar of the class-wide claims, there is no basis for judicial inquiry into the Commission=s investigation.
In its petition for interlocutory appeal, Caterpillar argues that a district court must review the Commission=s investigation whenever the complaint filed by the Commission contains allegations broader than those made in the underlying charge. Pet. at 12-13. Caterpillar contends that even when there is a Areasonable nexus@ between the charge and the subsequent allegations in the complaint, such judicial review is mandatory: Athe lower courts are not only authorized, but required, to look at both the scope of the charge and the scope of the investigation to determine the permissible scope of the complaint.@ Pet. at 12 (emphasis added).
Caterpillar offers two alternating rationales for its contention. On the one hand, Caterpillar argues that the issue is one of notice B Awhether Caterpillar received notice of a class claim by virtue of the investigation.@ Pet. at 16-17; see also Pet. at 14 (AAt issue is whether the EEOC=s investigation gave reasonable notice to Caterpillar . . . .@). On the other hand, Caterpillar argues that judicial review is necessary to ensure the veracity of the Commission=s cause determinations B Acourts must be able to assess whether evidence supporting the Determination was, in fact, obtained by the EEOC during an investigation.@ Pet. at 10. Neither proffered rationale supports Caterpillar=s argument for mandatory judicial scrutiny of EEOC investigations, however. Courts consistently have held that Congress carefully structured the administrative prerequisites to judicial actions under Title VII in a manner that addresses these two concerns; clearly judicial scrutiny into the administrative investigation is not provided for by the statute. Indeed, there is no legal support for such scrutiny in a case such as this one, where there is a reasonable nexus between the charge and the complaint, and where the Determination letter indisputably recited the discrimination later made the subject of the complaint. The issue raised therefore is not a contestable one.
1. The Anotice@ rationale does not render the issue a contestable one.
Section 706(b) of Title VII sets out the statutory prerequisites the Commission must fulfill prior to bringing an action against an employer. Upon receiving a charge of discrimination, the Commission must serve notice of the charge on the employer, make an investigation of the charge, and, if it finds Areasonable cause,@ attempt conciliation with the employer. 42 U.S.C. '2000e-5(b). These statutory requirements, along with regulations promulgated by the EEOC, ensure that Aa potential defendant is kept informed of the progress of the action . . . during the pendency of EEOC administrative proceedings.@ Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 372 (1977). The key regulations, the Court stated, are those requiring the Commission to notify employers promptly Awhen a determination of reasonable cause has been made . . . and when the EEOC has terminated its efforts to conciliate a dispute.@ Id. at 372-73 (citing EEOC regulations).
An employer cannot claim to lack notice when the investigation uncovers evidence of additional discrimination: APrompt notice of a reasonable-cause determination also serves to cure any deficiencies in the 10-day notice that may result from EEOC amendment of the claimed violation after investigation.@ Id. at 372 n.32 (citing, inter alia, EEOC v. Gen. Elec. Co., 532 F.2d 359, 366 (4th Cir. 1976)). Indeed, it is well-settled that Athe original charge is sufficient to support action by the EEOC . . . for any discrimination . . . developed in the course of a reasonable investigation . . . provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures . . .@ Gen. Elec. Co., 532 F.2d at 366. Thus notice of the reasonable cause determination is notice of the claims the Commission might pursue.
This Court explicitly has rejected an employer=s claim, such as the claim by Caterpillar here, that it received inadequate notice of discrimination different from that alleged in the charge based on a contention that the Commission did not adequately investigate the retaliation claim it later sought to litigate. EEOC v. St. Anne=s Hosp. of Chicago, Inc., 664 F.2d 128, 130 (7th Cir. 1981). In rejecting the employer=s argument that it was not sufficiently apprized of the claim, this Court stressed, A[a] reasonable cause determination is not to adjudicate a claim but to notify an employer of the Commission=s finding.@ Id. at 131; see also EEOC v. Keco Indus., Inc. 748 F.2d 1097, 1100 (6th Cir. 1984) (reasonable cause determination Ais designed to notify the employer of the EEOC=s findings and to provide a basis for later conciliation proceedings@); see also id. (defendant cannot challenge EEOC investigation leading to reasonable cause determination because AEEOC=s reasonable cause determination does not adjudicate rights and liabilities; it merely places the defendant on notice of the charges against him@). What Caterpillar is arguing for B a kind of notice before the notice afforded by the cause determination B is simply not required.
The one case cited by Caterpillar in which a district court did probe into the Commission=s investigation to ascertain whether the employer Aknew or should have known@ it would be subject to a broader claim than that alleged in the charge is EEOC v. Jillian=s of Indianapolis, Inc., 279 F. Supp.2d 974 (S.D. Ind. 2003) B the case that the district court invoked in its certification order. In Jillian=s, the Commission had filed a complaint alleging that Jillian=s Indianapolis facility discriminated on the basis of sex against four named men and similarly-situated others. Fourteen months later the Commission sought to amend the complaint to add a claim that Jillian=s discriminated nationwide. What proved critical in the case was the fact that neither the reasonable cause determination nor the conciliation process put the employer on notice of the broader claim. As the court emphasized, Athe central issue@ was whether the Commission=s Determination could fairly be interpreted to include a nationwide class. Id. at 983. The court, after looking at the investigation to help it decide between the Acompeting interpretations@ of the Determination, held the Determination referred only to the local, Indianapolis class. Id.
No Acompeting interpretations@ of the Commission=s Determination are at issue here. The Determination explicitly refers to discrimination against ACharging Party and a class of female employees,@ and Caterpillar has not argued that there is any ambiguity in the Determination. Moreover, the Commission has not sought to expand its case beyond the Aurora facility first identified in the charge. Jillian=s, therefore, is inapposite and so provides no legal support for Caterpillar=s notice argument.
Caterpillar=s final notice argument is that its position Ashould be the law@ because the Aconciliation requirements of Title VII can only be met if the scope of the litigation corresponds to the notice provided by the charge or the investigation.@ Pet. at 17. Caterpillar is incorrect. As discussed above, it is the reasonable cause determination that provides the employer with notice prior to conciliation, not the charge or the investigation. Moreover, the cause determination does not end the employer=s opportunity to resolve the matter before litigation. The Commission=s regulations anticipate that the Commission will continue to receive information after the cause determination is issued as part of the informal resolution process. See 29 C.F.R. ' 1601.26(b) (AFactual information@ obtained during conciliation treated in same manner as information received during investigation); see also St. Anne=s Hosp., 664 F.2d at 131 (where employer was notified of reasonable cause determination and invited to conciliate, employer had adequate opportunity to A>correct[] any shortcomings in its employment practices before formal judicial proceedings commence(d)=@); Gen. Elec. Co., 532 F.2d at 371 (Aimmaterial@ that employer was given right to comment Aduring conciliation rather than before the reasonable cause determination@).
Even if Caterpillar were correct that there is a contestable issue as to whether the Commission must furnish employers with notice prior to the notice provided by the reasonable cause determination, that issue is not Acontrolling@ in this case. See Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991) (Acontrolling@ means serious to conduct of litigation, either practically or legally) (citations omitted). During the course of the investigation, the EEOC investigator first informed Caterpillar officials that Awomen other than Lambert had made allegations of sexual harassment by Garcia.@ Dkt.19, Exh. C & 7; see also id. at & 8. Later, after she had interviewed witnesses at Caterpillar=s plant, the investigator told a Caterpillar official that Athere is a lot of activity going on in [Caterpillar=s] plant that is questi[o]nable.@ Dkt.19, Exh. C, Pl. Exh. 6. Caterpillar=s awareness of alleged harassment towards other women is apparent from the fact that it declined the Commission=s offer to conciliate, stating that it had reviewed the facts and believed they demonstrated that, in its view, Aat no time@ was Lambert Aor any other person@ subject to actionable sexual harassment. Dkt.55, Exh. A. Because of the evidence that Caterpillar in fact acquired notice of the broader allegations of discrimination, adoption of Caterpillar=s proposed notice standard would be unlikely to have any practical effect on the conduct of this litigation.
2. The Averacity@ rationale does not render the issue a contestable one.
Caterpillar argues that it is not asking the district court to review Athe merits of the agency=s Determination,@ but instead merely is seeking a Alimited review@ of the agency=s investigation. Pet. at 14. At the same time, Caterpillar contends that district courts Amust be able to assess whether evidence supporting the Determination was, in fact, obtained by EEOC during an investigation.@ Pet. 10; see also Pet. at 17 (district court must be allowed Ato look behind the reasonable cause determination@). In the context of this case, then, Caterpillar=s Alimited review@ would require the district court to examine the investigation to ascertain whether there was evidence supporting the Commission=s determination that there was reasonable cause to believe that Caterpillar engaged in a pattern or practice of tolerating harassment and retaliation at Caterpillar=s Aurora facility. Presumably, then, the court would need to examine not simply information the EEOC investigator requested from Caterpillar, but also all information actually uncovered, as evidenced by the investigator=s notes from interviews, documents produced by both the charging party and respondent, and, perhaps, testimony from the investigator about evidence she uncovered. Thus Caterpillar=s Alimited review@ would require that the district court examine all the investigatory evidence to ascertain whether the allegations encompassed in the complaint fairly could be said to have come from the investigation. See EEOC v. Chicago Miniature Lamp Works, 526 F. Supp. 974, 975 & n.2 (N.D. Ill. 1981) (if challenge to Commission=s investigation were permitted, district court would have to conduct a hearing to A>prob[e] the mind of the administrator=@ and would need to conduct Aa mini-trial inquiring into EEOC=s procedures and mental processes@).
There is no support B either in the statute or in the case law B for the notion that every Commission action requires two stages of adjudication. Under Caterpillar=s formulation, the parties first Awould litigate the question whether EEOC had a reasonable basis for its initial finding, and only then would the parties proceed to litigate the merits of the action.@ Chicago Miniature, 526 F. Supp. at 975. But ATitle VII=s statutory scheme clearly indicates that no such procedure was intended by Congress.@ Id. What Congress set up was a system under which AEEOC has no adjudicatory power. . . . Its proceedings are not binding on the employer and they are not reviewable . . . . Adjudication is the exclusive function of the courts under the Act. And the court trial is de novo, completely separate from the actions of the EEOC.@ EEOC v. Gen. Elec. Co., 532 F.2d at 370; see also Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (EEOC Acannot adjudicate claims or impose administrative sanctions. . . responsibility for enforcement of Title VII is vested with federal courts@); Harvey L. Walner, 91 F.3d at 968 n.3 (Adetermination of reasonable cause is only an administrative prerequisite to a court action and has no legally binding significance in subsequent litigation@).
Because of this statutory scheme, the court in General Electric held, alleged shortfalls in the Commission=s investigatory process Aresulted in no prejudice to the defendant [because] . . . the employer >still has the chance to present its side of the story in court.=@ Gen. Elec. Co., 532 F.2d at 370 (citation omitted). Accordingly, as the General Electric court emphasized and other courts uniformly have held, a two-stage adjudication in Commission cases is inappropriate because Congress did not intend A>the federal courts to review Commission determinations to see if they are supported by insubstantial evidence.=@ Id. at 370 n.31 (citation omitted); see also Chicago Miniature, 526 F. Supp. at 975 (same); Keco Indus., 748 F.2d at 1100 (same); compare McCottrell v. EEOC, 726 F.2d 350, 351-52 (7th Cir. 1983) (ATitle VII does not provide either an express or implied cause of action against the EEOC to challenge its investigation . . . Congress has provided that a plaintiff=s remedy . . . is to commence suit in the district court. . .@) (charging party suit against EEOC). Moreover, the two-stage adjudication model would Adeflect the efforts of both the Court and the parties from the main purpose of this litigation: to determine whether [the employer] has actually violated Title VII.@ Chicago Miniature, 526 F. Supp. at 975; see also Keco Indus., 748 F.2d at 1100 (quoting Chicago Miniature); Gen. Elec. Co., 532 F.2d at 370 n.31 (Ato test factual basis for Commission action@ would create Asubstantial . . . potential for delay and diversion@); EEOC v. Dial Corp., 2002 WL 1974072, * 5 (not A>conceptually and procedurally [] sound=@ to look behind EOC determination to decide whether EEOC had reasonable basis for its finding).
The requirement that the Commission adjudicate its claims de novo in district court also provides employers with protection from an overreaching federal agency. As the Supreme Court in General Telephone emphasized, A[t]he courts . . . are not powerless to prevent undue hardship to the defendant and should perform accordingly.@ Gen=l Tel., 446 U.S. at 333; see also Gen. Elec. Co., 532 F.2d at 370 n.31 (if Commission action is Afrivolous or misdirected, procedures are . . . available [at trial de novo in district court] by which the respondent may extricate himself from liability@). Thus if the Commission=s claim of facility-wide harassment lacks merit, the district court should grant judgment for Caterpillar. If the claim is frivolous, unreasonable, or without foundation, the court should order the Commission to pay Caterpillar attorneys fees. And if the Commission=s action does not meet the requirements of Rule 11, the court should issue appropriate sanctions. What Title VII and the relevant case law do not envision is a two-stage adjudication to determine, as an initial matter, whether the Commission=s determination was supported by sufficient evidence. Caterpillar thus has not raised a contestable issue of law.
3. Because of the particular facts of this case, the issue is neither controlling nor is its immediate resolution likely to speed up litigation.
The district court initially defined the class of women for whom the Commission could seek relief as Afemale employees who may have had contact with Robert Garcia.@ Dkt.70 at 1. In its certification order, the district court erroneously assumed that when it ruled on reconsideration that the Commission could seek relief on behalf of all female employees at the Aurora plant, it thereby expanded the potential class of women from a Afew dozen, at most, . . .to the hundreds of female employees at the Aurora Plant.@ R.44 (Order at 3). The district court was mistaken as a factual matter because even the class of women as more narrowly defined could encompass numerous female employees throughout the Aurora facility.
Garcia was the Safety and Security Manager for the entire Aurora facility. In that position, Garcia was not limited in his interactions to female employees in the Safety and Security Department. Evidence in the record indicates that Garcia regularly toured all the buildings of the Aurora plant and interacted with employees in the course of ensuring employee safety and security. Dkt.19, Exh. C, Pl. Exh 1 & 8. Indeed, four of the potential class members the Commission has already identified B without benefit of discovery B did not work in Garcia=s department, but instead worked in the facility=s safety store. Dkt.11, Exh.F. The Commission therefore believes that even limiting the potential class of claimants to women with whom Garcia may have had contact would permit the Commission to acquire evidence from a large number of female employees throughout the Aurora facility. The district court therefore erred as a factual matter when it determined that reversal of its order would Asignificantly limit the scope of the necessary discovery.@ R.44 (Order at 3).
The breadth of evidence that is permitted in a case alleging that an employer has tolerated sexual harassment and retaliation, and that it should be liable for punitive damages, also renders the issue here neither controlling nor likely to speed up the progress of litigation. It is well-settled that a plaintiff in a harassment case may discover and introduce evidence about harassment that other women in a workplace faced, and evidence about how the employer responded to other complaints of harassment. See generally Molnar v. Booth, 229 F.3d 593, 603-04 (7th Cir. 2000); Hertzberg v. Spam Corp., 261 F.3d 651, 663-64 (7th Cir. 2001); Perry v. Ethan Allen, Inc., 115 F.3d 143, 150-51 (2d Cir. 1997); Hurley v. Atlantic City Police Dep=t, 174 F.3d 95, 111 (3d Cir. 1999); Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 155-56 (8th Cir. 1990); Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995). Thus there are no grounds to limit discovery to a narrow group of women, regardless of how the class of potential claimants is defined. The issue Caterpillar raises accordingly is not Acontrolling@ nor would its immediate resolution by this Court Amaterially advance the ultimate termination of the litigation.@ 28 U.S.C. ' 1292(b).
CONCLUSION
This Court should deny the Petition for interlocutory appeal because Caterpillar has failed to demonstrate that the district court=s denial of summary judgment involves a controlling question of law on which there is substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
__________________________
JENNIFER S. GOLDSTEIN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
CERTIFICATE OF SERVICE
I hereby certify that one copy of this Opposition was mailed, first class, postage prepaid, on this 4th day of April, 2005, to the following:
Joseph S. Turner
S. Leigh Jeter
Jason M. Torres
Seyfarth Shaw LLP
55 East Monroe Street, Suite 4200
Chicago, IL 60603
M. Andrew McGuire
Caterpillar Inc.
100 N.E. Adams Street
Peoria, IL 61629-7310
____________________________
JENNIFER S. GOLDSTEIN
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, DC 20507
(202) 663-4733
April 4, 2005