Cases

Baldrige v. Shapiro,

455 U.S. 345 (1982)............................................................................ 5, 8

EEOC v. Bass Pro Outdoor World, LLC,

826 F.3d 791 (5th Cir. 2016)................................................................ 12

EEOC v. Bass Pro Outdoor World, LLC,

35 F. Supp. 3d 836 (S.D. Tex. 2014).................................................... 12

Freeman v. Seligson,

405 F.2d 1326 (D.C. Cir. 1968).............................................................. 9

Haitian Refugee Ctr., Inc. v. Nelson,

872 F.2d 1555 (11th Cir. 1989).......................................................................9

Hyde Constr. Co. v. Koehring Co.,

455 F.2d 337 (5th Cir. 1972)................................................................ 15

In re England,

375 F.3d 1169 (D.C. Cir. 2004).............................................................. 7

In re Nelson,

873 F.2d 1396 (11th Cir. 1989).............................................................. 9

In re U.S. Dep’t of Homeland Sec.,

459 F.3d 565 (5th Cir. 2006)................................................................ 15

In re Volkswagen of Am., Inc.,

545 F.3d 304 (5th Cir. 2008) (en banc)................................................. 13

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

431 U.S. 324 (1977).....................................................................................1-2

Jicarilla Apache Nation v. United States,

60 Fed. Cl. 611 (2004)............................................................................ 9

Kern v. TXO Prod. Corp.,

738 F.2d 968 (8th Cir. 1984)................................................................ 13

St. Regis Paper Co. v. United States,

368 U.S. 208 (1961)............................................................................ 5, 7

United Indus., Inc. v. Eimco Process Equip. Co.,

61 F.3d 445 (5th Cir. 1995)............................................................ 11, 12

United States v. Stanley,

483 U.S. 669 (1987).............................................................................. 11

United States v. Taylor,

487 U.S. 326 (1988).............................................................................. 13

Wolpin v. Philip Morris Inc.,

189 F.R.D. 418 (C.D. Cal. 1999)............................................................ 9

Zambrano v. INS,

972 F.2d 1122 (9th Cir. 1992)................................................................ 9

Statutes

Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq.

8 U.S.C. § 1101(a)(15)(U)....................................................................... 2

8 U.S.C. § 1160(b)(6).............................................................................. 9

8 U.S.C. § 1184(p)(1)............................................................................. 3

8 U.S.C. § 1367.................................................................................. 3, 5

8 U.S.C. § 1367(a)(2).......................................................................... 5, 6

Census Act, 13 U.S.C. §§ 1 et seq.

13 U.S.C. § 8(b)...................................................................................... 8

13 U.S.C. § 9(a)...................................................................................... 8

28 U.S.C. § 1292(b)................................................................................ passim

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

Section 706, 42 U.S.C. § 2000e-5........................................................... 1

Section 707, 42 U.S.C. § 2000e-6........................................................... 1

Victims of Trafficking and Violence Protection Act of 2000,

Pub. L. No. 106-386, § 1513(a)(2)(A) & (B), 114 Stat. 1464................. 3

Regulations

8 C.F.R. § 214.14......................................................................................... 3, 5

8 C.F.R. § 214.14(a)(2)................................................................................. 3, 7

8 C.F.R. § 214.14(a)(12)................................................................................... 3

8 C.F.R. § 214.14(c)(1)..................................................................................... 3

8 C.F.R. § 214.14(c)(4)..................................................................................... 3

8 C.F.R. § 214.14(c)(5)..................................................................................... 3

8 C.F.R. § 214.14(e)(1)................................................................................. 6, 7

8 C.F.R. § 214.14(e)(2)..................................................................................... 7

Rules

Fed. R. Civ. P. 54(b)....................................................................................... 12

Fifth Circuit I.O.P., Fed. R. App. P. 35.................................................... 13, 14

STATEMENT OF FACTS AND PROCEEDINGS

In the underlying litigation that gave rise to this appeal, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought Title VII claims in the public interest against Koch Foods of Mississippi, LLC (“Koch”) under Sections 706 and 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 & 2000e-6. ROA.7321 (RE Tab 10). The Commission’s suit alleges hostile work environment based on sex and race and/or national origin and retaliation, ROA.7341-47 (RE Tab 10), and seeks relief for seven Charging Parties and classes of female and Hispanic workers (collectively, “Aggrieved Individuals”) who worked at Koch’s Morton, Mississippi slaughter plant. ROA.7320-21 (RE Tab 10).[1] The Charging Parties and four additional Aggrieved Individuals (collectively, “Individual Plaintiffs”) brought suit separately and intervened in the EEOC’s suit. ROA.251-52, ROA.345-47.

Because this litigation alleges that Koch engaged in a pattern or practice of discrimination, ROA.7346-47 (RE Tab 10), the EEOC and the Individual Plaintiffs proposed a case management order bifurcating discovery and trial into a liability phase and a damages phase under International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). ROA.503-27, ROA.578-83. The magistrate judge declined to bifurcate discovery, but entered a case management order acknowledging that “[s]taged resolution or bifurcation will assist in the prompt resolution of this action” and directing the parties to submit proposals “including the manner in which a staged resolution or bifurcation of issues for trial ... shall be utilized” after resolution of dispositive motions. ROA.1033, ROA.1061. Later, on the EEOC’s and the Individual Plaintiffs’ renewed motion, the district court declined to bifurcate trial at that time, but confirmed that bifurcation remains an open issue. ROA.13222.

About six months before the close of discovery, Koch served the EEOC and the Individual Plaintiffs with new discovery requests seeking production of any U-visa applications and related materials, notwithstanding the magistrate judge’s prior protective order barring discovery of “immigration status or any information regarding immigration proceedings.” ROA.1813, ROA.1908 (RE Tab 9), ROA.4072-76 (RE Tab 11), ROA.4090-93 (RE Tab 11). U-visas provide temporary immigration status to victims of certain crimes. 8 U.S.C. § 1101(a)(15)(U). Congress created the U-visa program to strengthen law enforcement efforts to detect, investigate, and prosecute crimes that impact immigrants, by encouraging immigrant crime victims to report criminal activity and assist law enforcement agencies. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1513(a)(2)(A) & (B), 114 Stat. 1464. A U-visa applicant must submit documentation from a state or federal entity (including the EEOC, other labor enforcement agencies, judges, prosecutors, and others) certifying the applicant’s helpfulness in law enforcement efforts, but the U.S. Department of Homeland Security has “sole jurisdiction” to decide whether an applicant meets the U-visa eligibility requirements. 8 U.S.C. § 1184(p)(1); 8 C.F.R. § 214.14(a)(2) & (12); id. § (c)(1), (4), (5).

Koch filed a motion to reconsider the existing protective order and to compel U-visa discovery. On September 22 and October 29, 2014, the district court entered orders blocking U-visa discovery from the EEOC, ordering the Individual Plaintiffs to respond in part to Koch’s U-visa discovery requests, and authorizing U-visa discovery from the Aggrieved Individuals (although Koch had not yet submitted requests to the Aggrieved Individuals). ROA.13047-53 (RE Tab 5), ROA.13100 (RE Tab 6). The district court certified the September 22 and October 29 orders under 28 U.S.C. § 1292(b), this Court granted the EEOC’s petition for interlocutory appeal, and Koch cross-appealed.

On September 27, 2016, in a unanimous decision, a panel of this Court vacated and remanded the district court’s discovery orders. First, the panel held that the district court correctly interpreted the U-visa confidentiality provisions, 8 U.S.C. § 1367 and 8 C.F.R. § 214.14, to preclude U-visa discovery from the EEOC, but not from the Individual Plaintiffs and Aggrieved Individuals. Panel Op. 18. Second, the panel assessed whether the district court properly exercised its discretion in balancing probative value against burden in permitting Koch to obtain U-visa discovery from the Individual Plaintiffs and Aggrieved Individuals.

To begin, the panel explained that “we cannot conclude that the district court abused its discretion in finding U visa discovery relevant,” citing the “considerable deference we owe the district court in its discovery rulings.” Panel Op. 25.

Nevertheless, the panel opined that the number of Aggrieved Individuals “is not particularly suggestive of mass fraud,” noted the U-visa program’s fraud protections, “reject[ed] Koch’s repeated suggestions that plaintiffs’ claims are so outlandish as to be unbelievable[,]” and questioned Koch’s claim that the record established “unequivocal evidence of claimants’ duplicity.” Panel Op. 23-24.

Turning to burden, the panel concluded that “the discovery the district court approved would impose an undue burden and must be redefined.” Panel Op. 33. The panel reasoned that “[t]he district court’s analysis of the harm that U visa discovery might cause the claimants was imperfect, but not critically so.” Panel Op. 30; see also id. at 26-29. However, the panel held that U-visa discovery “may have a chilling effect extending well beyond this case, imperiling important public purposes.” Panel Op. 33. In particular, U-visa discovery could deter “potential U-visa seekers” from reporting workplace violations, “frustrating Congress’s intent in enacting the U visa program,” and leaving law enforcement agencies “much less able to use the U-visa program to solicit cooperation from those most in need of their help.” Panel Op. 31-32. Therefore, the panel vacated the district court’s discovery order and provided “broad contours” to guide the district court in implementing its decision. Panel Op. 33-34.

ARGUMENT

I. The panel’s decision does not conflict with binding precedent.

Koch incorrectly asserts that en banc review is warranted because the panel allegedly departed from controlling precedent in affirming the district court’s conclusion that 8 U.S.C. § 1367 and 8 C.F.R. § 214.14 bar U-visa discovery from the EEOC. Koch Foods Pet. for Reh’g En Banc (“Pet.”) 7; Panel Op. 12-13. Koch’s arguments mischaracterize the panel’s opinion and the Supreme Court’s decisions in St. Regis Paper Co. v. United States, 368 U.S. 208 (1961), and Baldrige v. Shapiro, 455 U.S. 345 (1982).

The EEOC had argued that the district court correctly barred discovery from the EEOC because: (1) 8 U.S.C. § 1367 and 8 C.F.R. § 214.14 create a privilege and (2) those provisions establish good cause to preclude discovery under Rule 26(c)(1). The panel agreed with the district court’s “straightforward reading” that 8 U.S.C. § 1367 and 8 C.F.R. § 214.14 “collectively precluded discovery of U visa records from the EEOC.” Panel Op. 12-13. 8 U.S.C. § 1367(a)(2) bars “disclosure to anyone … of any information which relates to an alien who is the beneficiary of a [U-visa application].” Id. (emphasis added). 8 C.F.R. § 214.14(e)(1) prohibits “[t]he use or disclosure … of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status.” Id. (emphasis added). The regulation also specifies that its confidentiality provision and Section 1367’s provision apply to the EEOC as a U-visa certifying agency. Id. §§ (a)(2) & (e)(2).

The panel rejected Koch’s argument that the statute and regulation do not apply to civil discovery because the text does not explicitly mention discovery. Panel Op. 13-14. In doing so, the panel analogized to In re England, 375 F.3d 1169, 1179 (D.C. Cir. 2004), in which then-Judge Roberts interpreted a similarly-worded confidentiality provision “barring ‘disclos[ure]’ of certain military promotion records ‘to any person not a member of the [promotion] board’ to forbid civil discovery of the records.” Panel Op. 14 (quoting England, 375 F.3d at 1177). Also, the panel explained, as in England, the underlying purpose of Sections 1367(a)(2) and 214.14 also support barring U-visa discovery from the EEOC. Id.[2]

Koch now contends, incorrectly, that the panel’s reasoning conflicts with St. Regis and Baldrige, and that the panel “brush[ed] aside” those decisions. Pet. 7-10. But St. Regis and Baldrige do not actually hold that “confidentiality provisions limiting disclosure of information do not bar judicial discovery absent an express prohibition against judicial disclosure.” Pet. 7. Koch points to St. Regis’s pronouncement that a confidentiality provision does not “suppress otherwise competent evidence unless the statute, strictly construed, requires such a result.” Pet. 7 (quoting St. Regis, 368 U.S. at 218). However, although the quoted language requires a clear directive, it does not demand an explicit reference to civil discovery. In fact, the panel expressly considered and rejected Koch’s interpretation, explaining that, “as a purely textual matter, it is unclear why a provision broadly barring any ‘disclosure’ would have to specify ‘including in discovery’ in order to have effect.” Panel Op. 13.

Also, the panel correctly distinguished St. Regis because “the Court held that a provision barring government officials from disclosing certain Census Bureau reports did not excuse a private company from disclosing the same reports in discovery.” Panel Op. 14. Moreover, in permitting a federal agency to obtain census reports from a private company, St. Regis also relied on a separate statutory provision stating that “nothing in the Census Act” impairs federal agencies’ authority to obtain census information. 368 U.S. at 219-20.

As the panel observed, Baldrige blocked civil discovery under a confidentiality provision that did not “explicitly mention[] evidentiary privilege” Panel Op. 13-14; see also England, 375 F.3d at 1178-79 (interpreting Baldrige). Koch argues that the panel misapplied Baldrige, which allegedly invoked a statutory provision that expressly barred disclosure of census reports in “legal process.” Pet. 10 (quoting 13 U.S.C. § 9(a)). But Baldrige’s holding actually relied on entirely different statutory language: 13 U.S.C. § 8(b)’s directive that the Commerce Department “not disclose the information reported by, or on behalf of, any particular respondent” and 13 U.S.C. § 9(a)’s limitations on “use,” “examination,” and “publication” of census information. Baldrige, 455 U.S. at 354, 361. Koch cites additional language from 13 U.S.C. § 9(a) that refers to “legal process,” Pet. 10, but Baldrige does not rely on (or even quote) that language.

Moreover, Koch’s citation is misleading. As Baldrige explained, Congress added the provision in question to prohibit disclosure of copies of census reports retained by business establishments. Baldrige, 455 U.S. at 356 n.11 (citing Pub. L. 87-813, 76 Stat. 922). But Koch omits the sentence preceding the quoted language, which makes clear that it refers only to reports retained by businesses or individuals, not information held by the government. 13 U.S.C. § 9(a) (prohibiting the government from requiring “copies of census reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process[.]”) (emphasis added).

Finally, Koch also argues that several decisions from other courts correctly interpret Supreme Court precedent. Pet. 8. But those decisions are not binding on this Court, and, moreover, they are distinguishable from the present case and pose no conflict. England specifically distinguished its own precedent, Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968)—on which Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992), and In re Nelson, 873 F.2d 1396 (11th Cir. 1989), heavily relied—because the Freeman provision only limited “publication,” in contrast to barring “disclosure.” England, 375 F.3d at 1180. The Nelson provision similarly limits “use,” “publication,” and “examin[ation]” of records, but does not limit “disclosure.” Nelson, 873 F.2d at 1397 (citing 8 U.S.C. § 1160(b)(6)).[3] Zambrano and Nelson are also distinguishable because they declined to apply confidentiality provisions to deny discovery to the individuals the provisions sought to protect. Zambrano, 972 F.2d at 1124-26 (government could not invoke confidentiality provision designed to protect legal residency applicants to deny applicants names of possible class members in suit against government); Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1557 (11th Cir. 1989); Nelson, 873 F.2d at 1397. By contrast, the EEOC asserted U-visa confidentiality to shield potential U-visa applicants—the very individuals the confidentiality provisions seek to protect.

II. The panel did not exceed its jurisdiction under 28 U.S.C. § 1292(b).

Koch argues that en banc review is warranted because (1) the panel exceeded its jurisdiction under 28 U.S.C. § 1292(b) and (2) the panel otherwise exceeded its authority to review district court discovery orders. Neither argument justifies en banc review.

First, the Commission agrees with Koch that appellate jurisdiction under Section 1292(b) is limited to review of the certified orders, Pet. 12, but disagrees that the panel exceeded its jurisdiction. To begin, Koch overstates the degree to which the panel discusses bifurcation. Koch repeatedly insists that the panel “impose[d] [ ] bifurcated proceedings” and claims that the panel “addressed the issue of using the Teamsters method of proof” in the context of harassment and retaliation claims. Pet. 1, 6, 12, 14-15. But the panel did not discuss (or even cite) Teamsters, and its only reference to bifurcation comes in a single paragraph in Part VII. Panel Op. 33. Part VII set out “broad contours” for implementing the panel’s opinion, and its primary focus is, “at a minimum,” providing guidance on preserving anonymity of U-visa applicants (if any) and their families. Panel Op. 33-34. This objective of preserving anonymity is directly connected to the panel’s conclusion that the U-visa discovery the district court authorized would impose an undue burden on the public interest. See, e.g., Panel Op. 32 (“[I]f [law enforcement] agencies cannot credibly assure potential U visas seekers that their sensitive information will be kept private, they may become much less able to use the program to solicit cooperation from those most in need of their help.”).

The panel briefly discussed bifurcation in setting out the possible logistics of discovery that would preserve the anonymity of any U-visa applicants. Panel Op. 33. This is appropriate because, as Koch acknowledges, bifurcation of trial is an open issue in this litigation, and it makes sense that the panel would consider the broader context of the litigation in providing guidance to the district court. Pet. 1-2; see also ROA.1061 (magistrate judge) (acknowledging that “[s]taged resolution or bifurcation will assist in the prompt resolution of this action” and directing the parties to submit proposals for bifurcated trial at a later date); ROA.13222 (district court judge) (acknowledging that bifurcation of trial remains an open issue).

To the extent that Koch is arguing that the panel exceeded its jurisdiction under 28 U.S.C. § 1292(b) by even mentioning bifurcation, that position stretches the law. Koch claims that the panel’s decision conflicts with United States v. Stanley, 483 U.S. 669 (1987), and United Industries, Inc. v. Eimco Process Equipment Co., 61 F.3d 445 (5th Cir. 1995). Pet. ix. Stanley simply stands for the general proposition that appellate jurisdiction under 28 U.S.C. § 1292(b) is limited to certified orders, and held that a court of appeals exceeded its jurisdiction because it reinstated claims dismissed in a separate order that was not certified. 483 U.S. at 676. Similarly, in United Industries, which involved certification under Fed. R. Civ. P. 54(b) rather than 28 U.S.C. § 1292(b), this Court declined to review separate, uncertified orders dismissing additional claims and denying a motion to compel. 61 F.3d at 447-48. Here, by contrast, the panel only referenced bifurcation as part of the broader context of the litigation, in the course of providing guidance to the district court on how to implement its opinion. The panel’s brief discussion of bifurcation fell well within its jurisdiction under 28 U.S.C. § 1292(b).

Koch’s reasons for raising this court’s decision in EEOC v. Bass Pro Outdoor World, LLC, 826 F.3d 791 (5th Cir. 2016), petition for reh’g filed, are unclear. To the extent that Koch asks this Court to review en banc whether the Teamsters method of proof applies to pattern-or-practice harassment or retaliation claims, that question would fall outside this Court’s appellate jurisdiction under 28 U.S.C. § 1292(b) because the district court has not decided it. Moreover, this Court’s decision in Bass Pro did not rely on—or even discuss—a distinction between hiring claims and harassment or retaliation claims.[4] Also, if Koch contends that the panel inappropriately applied Bass Pro to the present case, that argument makes little sense, because the panel did not even cite Bass Pro and, as explained supra at 10-11, only briefly discussed bifurcation.

Second, Koch also incorrectly asserts that the panel exceeded its authority to review discovery orders. Pet. 13. In particular, Koch alleges that the panel “substitut[ed] its judgment” for the district court’s by “impos[ing] an additional restriction because the panel believed the district court had not weighed the public interest.” Pet. 13. This argument has nothing to do with appellate jurisdiction under 28 U.S.C. § 1292(b), although Koch raises it under that heading. It boils down to a challenge to the panel’s analysis in reviewing the district court’s discovery orders, but Koch’s disagreement with the panel is not an appropriate subject for en banc review. Fifth Circuit I.O.P., Fed. R. App. P. 35 (explaining that “[a]lleged errors” in “sufficiency of the evidence[] or in the application of correct precedent to the facts of the case” are typically not “matters…for rehearing en banc”).

Furthermore, Koch is wrong that the panel overreached in determining that the district court gave inadequate weight to the public interest. As the panel explained, “[a] court engaging in a balancing analysis abuses its discretion ‘when a relevant factor that should have been given significant weight is not considered.’” Panel Op. 7 (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984), cited with approval by In re Volkswagen of Am., Inc., 545 F.3d 304, 310 n.4 (5th Cir. 2008) (en banc)). A district court should “consider ‘all relevant public and private interest factors,’ and [] balance those factors reasonably.” Panel Op. 7 n.14 (quoting in parenthetical United States v. Taylor, 487 U.S. 326, 336 (1988)). Accordingly, the panel concluded that the district court abused its discretion by failing to consider how U-visa discovery would impact the public interest. Panel Op. 30-33. Specifically, the U-visa discovery allowed by the district court would deter other individuals from pursuing U-visas, hinder law enforcement agencies, and undermine Congress’s intent in enacting the U-visa program. Panel Op. 31-32.

Koch incorrectly insists that “the district court specifically considered the public interest and appropriately imposed discovery restrictions within its discretion to address the public concern.” Pet. 13 (citing ROA.13052-54 (excerpt of district court’s September 29 decision)). Koch offers no details on how the district court addressed the public interest, but the cited pages of the district court opinion focus on the Individual Plaintiffs. ROA.13052-54 (discussing how U-visa discovery would affect individuals involved in this case and permitting the Individual Plaintiffs to redact any criminal history from U-visa applications produced in discovery). Plus, again, Koch’s disagreement with the panel’s interpretation of the district court’s opinions is not an appropriate matter for rehearing en banc. Fifth Circuit I.O.P., Fed. R. App. P. 35.

Finally, Koch mischaracterizes the panel decision as “substitut[ing] [its] judgment with respect to the discovery restrictions imposed by the district court.” Pet. 13. In fact, the panel specifically declined to “impose an order of [its] own,” “remand[ing] to the district court to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake” (especially the anonymity of any U-visa applicants). Panel Op. 33. The panel acted well within its authority by identifying “broad contours” that would assist the district court in applying the panel decision on remand. Id.; see, e.g., In re U.S. Dep’t of Homeland Sec., 459 F.3d 565 (5th Cir. 2006) (recognizing and describing contours of law enforcement privilege and remanding for assessment of whether privilege applied to “particular documents,” while opining that privilege probably did not cover several categories of documents); Hyde Constr. Co. v. Koehring Co., 455 F.2d 337, 338-39, 342-44 (5th Cir. 1972) (undertaking an “independent examination” of allegedly privileged documents).

CONCLUSION

For the foregoing reasons, the Commission urges this Court to deny Koch’s petition for rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ s/ Anne W. King_____

General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: December 8, 2016

CERTIFICATE OF SERVICE

I hereby certify that, on December 8, 2016, I filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit via the CMF/ECF system, thereby serving the attorneys of record listed below:

Scott W. Pedigo

Adam H. Gates

Adria H. Jetton

Jennifer G. Hall

Nakimuli O. Davis-Primer

Russell W. Gray

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

P.O. Box 14167

4268 I-55 North

Meadowbrook Office Park (39211)

Jackson, MS 39236-4167

Caitlin Berberich

Southern Migrant Legal Services

311 Plus Park Blvd., Suite 135

Nashville, TN 37217

Jerry Gonzalez

Law Office of Jerry Gonzalez

2441-Q Old Fort Parkway, Suite 381

Murfreesboro, TN 37128

Robert B. McDuff

McDuff & Byrd

767 North Congress St.

Jackson, MS 39202

Jerome Wesevich

Texas Rio Grande Legal Aid, Inc. - El Paso

1331 Texas Ave.

El Paso, TX 79901

Christopher Odell

Hannah DeMarco Sibiski

Arnold & Porter, L.L.P.

Suite 1600

700 Louisiana St.

Houston, TX 77002-2755

Nancy Kessler Platt

Barbara A. O’Neill

Diana O. Embree

Mischa K. Bauermeister

National Labor Relations Board

1015 Half St. SE

Washington, DC 20003

s/ Anne W. King___________

ANNE W. KING

Attorney for the Equal Employment

Opportunity Commission

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and Fifth Cir. R. 32.1 and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font in the body and 12-point Times New Roman font in the footnotes. This brief complies with Fed. R. App. P. 35(b)(2) because it does not exceed 15 pages.

s/ Anne W. King_____

ANNE W. KING

Attorney for the Equal Employment

Opportunity Commission

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

[1] For example, female workers have described persistent, unwelcome sexual touching (that sometimes escalated to serious assaults), sexual propositions, and explicit comments and gestures. ROA.8998, ROA.9012-17, ROA.9050-61, ROA.9078-83, ROA.9096-100, ROA.9163-81, ROA.9374-75, ROA.9391-95, ROA.9426-29. Hispanic workers testified to physical abuse, racially charged insults, and extortion. ROA.9063, ROA.9088-90, ROA.9133-34, ROA.9140, ROA.9156-62, ROA.9194-95, ROA.9229-31, ROA.9242-44, ROA.9264-71, ROA.9440-41.

[2] The panel held that Koch waived any argument that Section 214.14 “is invalid insofar as it purports to create a privilege or to extend § 1367[] ... to the EEOC.” Panel Op. 13 n.27.

[3] Also, Jicarilla Apache Nation v. United States, 60 Fed. Cl. 611 (2004), concluded that a statutory reference to “privileged proprietary information” meant a “special advantage” rather than an “evidentiary privilege.” 60 Fed. Cl. at 612. And Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 421, 427-29 (C.D. Cal. 1999), allowed discovery of medical data because state law protected only individual patient information (not raw data).

[4] Instead, Koch cites the Bass Pro district court, Pet. 14, which stated that decisions discussing Teamsters in the hostile work environment context did not control the court’s analysis of hiring claims. EEOC v. Bass Pro Outdoor World, LLC, 35 F. Supp. 3d 836, 856 (S.D. Tex. 2014).

TABLE OF AUTHORITIES

STATEMENT OF FACTS AND PROCEEDINGS

ARGUMENT

I. The panel’s decision does not conflict with binding precedent.

II. The panel did not exceed its jurisdiction under 28 U.S.C. § 1292(b).