IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
THE GEO GROUP, a Florida
Corporation, d/b/a Arizona State
Prison-Florence West and Central Arizona
On Appeal from the United States District Court
for the District of Arizona, Nos. 10-2088 & 10-1995
BRIEF OF PLAINTIFF-APPELLANT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
P. DAVID LOPEZ EQUAL EMPLOYMENT OPPORTUNITY
General Counsel COMMISSION
Office of General Counsel
LORRAINE C. DAVIS 131 M Street, NE
Acting Associate General Counsel Washington, D.C. 20507
JENNIFER S. GOLDSTEIN AnneNoel.Occhialino@eeoc.gov
Acting Assistant General Counsel
ANNE NOEL OCCHIALINO
STATEMENT OF JURISDICTION....................................................... 1
STATEMENT OF THE ISSUES........................................................... 2
STATEMENT REGARDING STATUTORY ADDENDUM................. 2
STATEMENT OF THE CASE .............................................................. 3
A. Nature of the Case and Course of Proceedings...................... 3
B. Statement of the Facts ………………………………………………….. 3
C. District Court Rulings…………………………………………….…... 16
SUMMARY OF ARGUMENT............................................................. 19
STANDARD OF REVIEW AND REVIEWABILITY.......................... 22
I. The district court erred in holding that EEOC failed to satisfy
Title VII’s pre-suit requirements.................................................... 23
A. Title VII does not provide for judicial review of the adequacy of
EEOC’s administrative process or imply a “failure-to-conciliate”
1. The sufficiency of EEOC’s investigation and cause findings
is not reviewable.................................................................. 25
2. Title VII does not imply a “failure-to-conciliate” defense. 29
a. Title VII’s text does not create a conciliation defense... 29
b. No workable standard of review exists........................... 31
c. EEOC is already committed to robust conciliation........ 35
TABLE OF CONTENTS (con’t)
d. A failure-to-conciliate defense undermines conciliation
and Title VII’s enforcement............................................ 36
B. EEOC satisfied Title VII’s pre-suit requirements.................... 37
1. Title VII does not require EEOC to investigate, find cause,
and conciliate on an individual basis when suing on behalf of
a class..................................................................................... 38
2. EEOC investigated, issued a cause finding as to the class,
and attempted conciliation................................................... 51
II. Even if Title VII authorizes review and EEOC failed to satisfy its
presuit requirements, the district court erred in dismissing the
nineteen claimants........................................................................ 50
A. Title VII does not authorize dismissal on the merits for a
failure of process...................................................................... 51
B. Even if available, dismissal was unwarranted here................. 52
III. The district court erred in limiting the class claims to the
300 days preceding the cause determination............................ 54
A. The 300-day limitation runs from the charge........................ 54
B. Geo had notice of the class claims before the
C. EEOC can seek relief for post-determination acts................... 58
IV. A jury could find Sofia Hines was subjected to a hostile
work environment.......................................................................... 61
STATEMENT OF RELATED CASES................................................. 67
CERTIFICATE OF COMPLIANCE.................................................... C-1
CERTIFICATE OF SERVICE............................................................. C-2
STATUTORY ADDENDUM.............................................................. end
TABLE OF AUTHORITIES
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).................. 26
Chuang v. Univ. of Calif. Davis, 225 F.3d 1115 (9th Cir. 2000)..... 22
Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008)...... 63,64,65
Ellison v Brady, 924 F.2d 872 (9th Cir. 1991).................................. 62
EEOC v. Alia, 842 F. Supp. 2d 1243 (E.D. Cal. 2012)................. 32,38
EEOC v. American Nat’l Bank,
652 F.2d 1176 (4th Cir. 1981)............................................. 39,40,43
EEOC v. Asplundh Tree Expert, 340 F.3d 1256
(11th Cir. 2003)...................................................................... 32,53
EEOC v. Bimbo Bakeries USA, 2010 WL 598641
(M.D. Pa. Feb. 17, 2010)............................................................. 52
EEOC v. Bruno’s Restaurant, 13 F.3d 285 (9th Cir. 1993)....... passim
EEOC v. California Psychiatric Transitions, 725 F. Supp. 2d 1100
(E.D.Ca. 2010)......................................................................... 27,37
EEOC v. California Psychiatric Transitions, 644 F. Supp. 2d 1249
(E.D. Cal. 2009)....................................................................... 37,44
EEOC v. Caterpillar, 409 F.3d 833 (7th Cir. 2005)................... 27,44
EEOC v. Chicago Miniature Lamp Works,
526 F. Supp. 974 (N.D. Ill. 1981)................................................ 28
EEOC v. Cintas, No.04-40132, 2010 WL3733978
(E.D. Mich. Sept. 20, 2010).......................................................... 45
TABLE OF AUTHORITIES (con’t)
EEOC v. Consol. Realty, No. 06-00681, 2007 WL 1452967
(D. Nev. May 17, 2007)................................................................. 37
EEOC v. CRST, 679 F.3d 657 (8th Cir. 2012)............................ passim
EEOC v. Dillard’s, No. 08-1780, 2011 WL 2784516
(S.D. Cal. July 14, 2011)............................................................ 37,44
EEOC v. Evans Fruit, 872 F. Supp. 2d 1107 (E.D. Wash. 2012) 37,44
EEOC v. First Midwest Bank, 14 F. Supp. 2d 1028 (N.D. Ill. 1998) 34
EEOC v. Freeman, No.09-2573,
2011WL 337339 (D. Md. Jan. 31, 2011)..................................... 56
EEOC v. Gen. Elec., 532 F.2d 359 (4th Cir. 1976)............................ 56
EEOC v. Global Horizons, 940 F. Supp. 2d 1316 (E.D. Wash. 2013) 37
EEOC v. Gold River Operating Copr., No.04-1349,
2007 WL 983853 (D.Nev. Mar. 30, 2007).................................. 27,37
EEOC v. Grimmway Enterprises, No. 06-0561, 2007 WL 1725660
(E.D. Cal. June 12, 2007).............................................................. 37
EEOC v. Hearst, 553 F.2d 579 (9th Cir. 1977)............................. 48,55
EEOC v. High Speed Enter., 2010 WL 8367452
(D. Ariz. Sept. 30, 2010 ).............................................................. 37
EEOC v. Hometown Buffet, 481 F. Supp. 2d 1110 (S.D. Cal. 2007) 37
EEOC v. Johnson & Higgins, 91 F.3d 1529 (2d Cir. 1996)............... 32
EEOC v. Keco, 748 F.2d 1097 (6th Cir. 1984)................... 26,27,32,43
EEOC v. Klingler Elec., 636 F.2d 104 (5th Cir. 1981)............ 32,50,52
TABLE OF AUTHORITIES (con’t)
EEOC v. La Rana Hawaii, LLC,
888 F. Supp. 2d 1019 (D. Haw. 2012)......................................... 37
EEOC v. Mach Mining,
738 F.3d 171 (7th Cir. 2013)................................................... passim
EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840 (9th Cir. 2005). 63
EEOC v. Occidental Life Ins., 535 F.2d 533 (9th Cir. 1976)............ 60
EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539 (W.D. Va. 2001) 56
EEOC v. PBM Graphics, 877 F. Supp. 2d 334 (M.D.N.C. 2012)..... 34
EEOC v. Pac. Maritime Ass’n, 188 F.R.D. 379 (D. Or. 1999).......... 33
EEOC v. Pierce Packing, 669 F.2d 605 (9th Cir. 1982)............. 25,33
EEOC v. Princeton Healthcare Sys., No.10-4126, 2012 WL 5185030
(D.N.J. Oct. 18, 2012).................................................................... 56
EEOC v. Riverview Animal Clinic,
761 F. Supp. 2d 1296 (N.D. Ala. 2010)....................................... 33
EEOC v. Rhone-Poulenc, 876 F.2d 16 (3d Cir. 1989)....... 39,40,42,43
EEOC v. Scolari Warehouse Mkts.,
488 F. Supp. 2d 1117 (D. Nev. 2007)....................................... 33,37
EEOC v. Sterling Jewelers, No. 08-706,
2010 WL 86376 (W.D.N.Y. Jan.6, 2010)..................................... 55
EEOC v. St. Louis-San Francisco Ry.,
743 F.2d 739 (10th Cir. 1984)....................................................... 44
EEOC v. Swissport Fueling,
916 F. Supp. 2d 1005 (D. Ariz. 2013)................................. 33,37,45
TABLE OF AUTHORITIES (con’t)
EEOC v. Timeless Investments,
734 F. Supp. 2d 1035 (E.D. Cal. 2010)......................................... 37
EEOC v. U.S. Steel, 2012 WL 1150799 (W.D. Pa. April 5, 2012)..... 31
EEOC v. Wedco, No. 12-00523, 2013 WL 1104754
(D. Nev. Mar. 12, 2013).................................................................. 38
EEOC v. Westvaco Corp., 372 F. Supp. 985 (D. Md. 1974)............. 52
EEOC v. Unit Drilling, No.13-147, 2013 WL 5935480
(N.D. Okla Nov. 13 2013).............................................................. 49
EEOC v. United Parcel Serv., 860 F.2d 372 (10th Cir. 1988)......... 43
EEOC v. Waffle House, 534 U.S. 279 (2002).............................. 55,59
EEOC v. Zia, 582 F.2d 527 (10th Cir. 1978)...................................... 32
Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979).............. 26,27
Gen. Tel. Co. v. EEOC, 446 U.S. 318 (1980)........................... 25,38,55
Harris v. County of Orange, 682 F.3d 1126 (9th Cir. 2012)........... 60
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)............................... 62
Hipp v. Liberty Nat’l Life Ins., 252 F.3d 1208 (11th Cir. 2001)...... 58
Kendall v. Nevada, 434 Fed. App’x 610 (9th Cir. 2011).................. 64
Lucky Stores v. EEOC, 714 F.2d 911 (9th Cir. 1983)............. 42,43,48
Marshall v. Sun Oil, 605 F.2d 1331 (5th Cir. 1979)................ 41,43,47
Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002)...................................................................... 56
TABLE OF AUTHORITIES (con’t)
Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002)............................ 27
Occidental Life Ins. v. EEOC, 432 U.S. 355 (1977).......................... 42
Slaven v. Am. Trading Transp., 146 F.3d 1066 (9th Cir. 1998)........ 1
Schnidrig v. Columbia Mach., 80 F.3d 1406 (9th Cir. 1996)......... 62
Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012)............ passim
Steiner v. Showboat Operating, 25 F.3d 1459 (9th Cir. 1994)....... 65
University of Texas Southwestern Med. Ctr. v. Nassar,
128 S.Ct. 2517 (2013)..................................................................... 29
Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003).. 61
Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983)............................... 26,28
28 U.S.C. § 1291..................................................................................... 1
28 U.S.C. § 1331..................................................................................... 1
28 U.S.C. § 1335..................................................................................... 1
29 U.S.C. § 626(b)............................................................................... 41
42 U.S.C. § 2000e-5.................................................................... passim
42 U.S.C. § 2000e-5(b)............................................................... passim
42 U.S.C. § 2000e-5(e).................................................................. 18,55
42 U.S.C. § 2000e-5(f)(1)............................................................ passim
TABLE OF AUTHORITIES (con’t)
42 U.S.C. § 2000e-6(e)....................................................................... 40
a. The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§1331, 1345.
b. Pursuant to 28 U.S.C. §1291, this Court has jurisdiction over this appeal from the district court’s orders of April 17, 2012, and March 25, 2013, granting summary judgment in part. These orders became final and appealable on April 26, 2013, when the district court granted a stipulation of dismissal as to the intervenor’s claim, R.374, and approved the parties’ consent decree, ER110, which explicitly preserved EEOC’s right to appeal the earlier orders. See Slaven v. Am. Trading Transp., 146 F.3d 1066, 1070 (9th Cir. 1998) (party to consent decree may appeal where right to appeal is reserved explicitly).
c. EEOC timely filed its notice of appeal on June 24, 2013, ER107, within 60 days of the district court’s orders granting the dismissal of the intervenor’s claims and approving the consent decree, which resolved all claims. See Fed. R. App. P. 4(a)(1).
1. Whether the district court erred in dismissing nineteen claimants on the ground that EEOC failed to satisfy Title VII’s pre-suit requirements where EEOC investigated, issued a reasonable cause determination, and conciliated, and where Title VII neither contemplates judicial inquiry into the sufficiency of EEOC’s investigation and cause determination nor provides for any “failure-to-conciliate” defense.
2. Assuming Title VII authorizes judicial scrutiny and dictates that EEOC perform its pre-suit requirements on an individual basis when EEOC sues on behalf of a class, whether the district court erred in remedying this purported inadequacy of process by dismissing the potentially meritorious claims of nineteen class members.
3. Whether the district court erred in holding that Title VII’s 300-day limitation period ran for the class from the date of the cause determination rather than from the date of the individual charge, and that EEOC cannot recover for post-determination retaliation.
4. Whether the court erred in granting summary judgment as to the hostile work environment claim on behalf of Sofia Hines.
Please see statutory addendum bound with this brief.
EEOC filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5 (§706), alleging the Geo Group, Inc. (“Geo”), subjected the charging party, Alice Hancock, and a class of aggrieved individuals to a sex-based hostile work environment and retaliation. ER438. Hancock later intervened. ER81. EEOC’s suit (No. 10-2088) was consolidated with a suit filed by the Arizona Civil Rights Division (“ACRD”) (No. 10-1995) making similar allegations under state law. ER81.
On April 17, 2012, the court dismissed nineteen claimants on the ground that EEOC and ACRD (“Plaintiffs”) failed to investigate, find cause, or conciliate on an individual basis, and the court ordered additional conciliation as to Hancock and five other claimants. ER80. After conciliation failed, the district court granted summary judgment as to three claimants but allowed Hancock’s claims and two claimants to go to trial. ER1. Hancock settled before trial. R.374. After trial began, Plaintiffs and Geo entered a consent decree as to the two remaining claimants. ER110. The decree provided explicitly that Plaintiffs could appeal the summary judgment orders. ER112.
A. Factual Background
Geo owns and operates two correctional facilities in Florence, Arizona: Florence West and Central Arizona Correctional Facility (CACF). ER2. Florence West houses minimum security, DUI, and return-to-custody inmates. ER346(¶8). CACF houses medium security sex offender inmates. ER346(¶9). The two facilities have their own wardens, budgets, and contracts with the state, ER346(¶¶5-6), but they are within walking distance of each other, share a parking lot, and utilize the same human resource officials. R.314(¶3);ER4,n.4.
The record reflects egregious sexual harassment at Florence West and CACF that flourished for years, and retaliation. The facts as to the three women dismissed by the court’s summary judgment order are below.
1. Frances Wilcox
Wilcox worked as a correctional officer at Florence West from 2005 through September 1, 2008. ER142;ER145;ER148. As of October 2005, Wilcox was supervised by Sergeant Robert Tremont and Lieutenant Michael Kuykendall. ER148. Tremont harassed Wilcox from early 2006 “until the day [she] left.” ER187;ER190;ER196. “Every day” Tremont called her a “fucking bitch.” ER187. “If it wasn’t fucking bitch, it was bitch.” ER190. Kuykendall heard this, but Kuykendall also called Wilcox “bitch.” ER196. When Wilcox complained in late 2005 or early 2006 that Tremont even called her “bitch” in front of inmates, Kuykendall said, “okay, bitch.” ER196-ER197. Wilcox twice complained to Warden Rick Mauldin by “writing up” Tremont, but Mauldin did nothing except say he would talk to Tremont. ER197-98.
“[E]very day” Tremont told Wilcox to bend over a desk so he could put his “dick in her ass.” ER204. She complained fifty or more times to Assistant Warden James Gallagher, but he just said he would talk to Tremont. ER208. Tremont also told Wilcox “every day” to “suck his dick” while grabbing himself, including in front of inmates. ER209. “Every day” Wilcox complained to Kuykendall, who just told her to stay away from Tremont. ER204-205. Wilcox complained repeatedly to Gallagher and Mauldin, and made a written complaint, but they did nothing. ER204-207;ER211. Kuykendall explained that Gallagher and Mauldin were “old buddies” with Tremont and “would cover for him.” ER212. When Wilcox “wrote up” Tremont, complaining that he told her and other women he wanted to “fuck them in the ass, put his dick in our ass, have us suck his dick,” Mauldin just said “he would check into it.” ER207.
Wilcox heard Tremont regularly make offensive comments to other female officers, such as “she’s acting that way” because she did not get “screw[ed]” last night and “she’d probably feel better if [he] put [his] dick in her ass.” ER184. Tremont “was always picking on [Officer Jennifer] Younger,” calling her “bitch” and “whore” and saying “she should be at home with [his] dick in her ass or her sucking [his] dick.” ER184;ER236. Tremont harassed female workers in the lobby, “talking about their breasts” and grabbing “himself in the crotch.” ER185. He called the nurses “psycho bitches” and said they “liked looking at the inmates’ penises.” ER186.
In 2007, Tremont slapped Wilcox on her buttocks in front of an inmate; when Wilcox complained to Kuykendall, he responded, “that son of a bitch. Something’s got to be done about him.” ER219-20. Up until early August 2008, Tremont repeatedly tried to hug Wilcox or put his arm around her. ER221;ER226. Tremont also told inmates that Wilcox was a “bitch,” “this is my bitch right here,” and said, “hurry up bitch. I can smell your ass.” ER232-33. On November 17, 2008, in response to Hancock’s complaint that Tremont had grabbed her breast—and three years after Wilcox began complaining about Tremont—Geo transferred Tremont from Florence West to CACF. ER11.
Wilcox was also harassed by Geo’s chaplain, Chaplain Richards, “every day that [she] saw him.” ER154-55. “Every day” from 2005 to 2007, Richards asked her out and offered to buy her breakfast, lunch, soda, or candy, which she declined. ER156. He frequently called Main Control, harassing and bothering her. ER157-58. Once Richards called Main Control on speakerphone and offered to rub her back; Tremont, who was present, told Richards he was “a fucking pervert” and to leave Wilcox alone. ER157. Wilcox complained to Kuykendall, who said he would talk with Richards. ER158.
In 2006, Wilcox refused to let Richards buy her lunch, and he told her that one day he would pull her into his van and take her home. ER160. Wilcox reported this to Kuykendall, who said he could not believe the chaplain would say that but offered to have her escorted to her car by male officers. ER160-61. Wilcox also filed a written report, ER161, and complained to Gallagher, who just said he would talk to Richards. ER163.
On a second occasion in 2006, Richards drove into the parking lot, told Wilcox he had pizza, and asked her to get in the van with him. ER164-65. Wilcox refused and told Kuykendall. ER165. Mauldin eventually talked to Richards, who “became very aggressive towards [her].” ER166. Richards would pound on the window at Main Control, yell, make grunting noises at her, and block her path in the hallway. ER169. Wilcox complained of the grunting noises to Mauldin, who just said he would talk to Richards, and, Kuykendall, who replied, “I tried talking to [Richards]. I don’t know what else I can do for you.” ER171-72.
Wilcox and another officer complained to Sergeant Lopez about Richards banging the window in Main Control and throwing his equipment in a drawer. ER180. Lopez just talked to Richards. ER180-81. Wilcox made a written complaint to Gallagher and Mauldin about Richards’ conduct, but Gallagher “brushed [her] off” and Mauldin just said he would talk to Richards. ER181.
Wilcox also complained ten times, to no avail, about Lieutenant Anthony Bodey saying women did not belong in corrections and should be home in the kitchen. ER242. When Wilcox left Geo, Bodey signed a going-away card saying, “Finally you are going to find the kitchen. Good. Just fix my lunch, woman. Ha ha.” ER240-42. Wilcox did not take it as a joke. ER243.
2. Alisa Roach
Roach worked as a correctional officer from December 11, 2006, through July 8, 2011. ER11. Except for a few weeks at CACF, she worked at Florence West. ER11.
“Every day” Roach worked with him, Tremont made inappropriate sexual comments. ER262(p.69). Tremont told her to “suck [his] dick,” gesturing with his tongue as if performing oral sex. ER252(p.30). He would say, “bend over and I’ll ram you from behind”” and approach her with his hands up, as if to cup her breasts. ER252(p.30). Other times, he told Roach to pick up his pen from the floor, stood behind her, and gyrated his hips as if having sex. ER252(p.30). Tremont told her he “wanted to bend [her] over the desk and fuck [her] while the inmates watched through the window.” ER252(p.30). When Roach was in the Main Control room with Officer Valerie Banks, Tremont (who was White) said he would make an “Oreo cookie” out of the women (who are Black) and “fuck them real good.” ER266(pp.87-88);ER268(¶7). Tremont repeatedly invited Wilcox to his cabin or a casino. ER252(p.30). When Tremont’s harassment drove Roach to call in sick, he called and said if she had not been up all night “fucking” she could have come to work. ER263(p.76). Roach hung up, and he called back to say she was a bitch. Id.
When Roach complained to Kuykendall about Tremont’s comments and gestures, Kuykendall responded, “oh, he’s just Tremont. He’s harmless.” ER262(pp.70-71). A week later Roach repeated to Gallagher her complaint about Tremont’s comments and gestures. ER264(p.78). Like Kuykendall, Gallagher said Tremont was “harmless.” ER260(p.78).
One day after Geo finally investigated Tremont (in response to Hancock’s complaint), Roach started avoiding Tremont because of his “mouth.” ER267(p.103). Tremont then goaded another officer into pouring water over Roach’s head, in front of an inmate. ER267(pp.103-05). After Roach complained, Geo suspended the men, but Geo’s Vice President of Operations, James Black, called this incident “horseplay.” ER135-36.
3. Sofia Hines
Hines worked as a correctional officer at CACF from 2007 to January 2012. ER24. Officer Hilsden was “always talking dirty, always trying to pick up somebody.” ER295;ER299 (Hilsden “always, always talked dirty. That’s his whole conversation to people.”). Hilsden talked dirty to Hines. ER295. For instance, one day Hines was eating from a bag of mixed salty nuts, which she offered Hilsden. He said, “no thank you, I have my own nuts.” ER296. Hines was offended. ER296. Hilsden also talked about his dating life and used hand gestures, saying something like, “oh, I got So-and-So, boom.” ER299.
On July 22, 2009, Hilsden—who was posted as a supervisor that day with the power to “run the yard”—“spanked [Hines] in front of inmates and a cadet.” ER297;ER293. Hines complained to her shift supervisor, Lieutenant Nielsen, and filed a written report. ER294. Despite her oral and written complaint, which she gave to the Human Resources manager, “nobody call[ed] [her] or investigate[d].” ER294-95;ER299-300. Hines later heard “by rumors” that Hilsden said it was an accident. ER295.
Hines testified that “a lot of people over there were talking really dirty . . . nothing was reported . . . it was just normal.” ER325. In 2009, Officer Lemke talked about how he “and his girlfriend liked to have sex and put beads on their – I don’t know.” ER325. Hines also heard about Hilsden leaving gold tie tack handcuffs on a nurse’s car and harassing her. ER25. In 2010, Sergeant Martin Richey intentionally pushed Hines with his arm/shoulder, causing her to step back, while she was in the yard with inmates. ER276-77.
In October 2010, Hines was unable to clear the scanner to enter the building. ER305-06. Richey and Sergeant Duran were working the scanner. ER306. They directed her to go to the restroom to remove her bra to pass through the scanner, which she did. ER306-09. On November 27, 2010, Hines again had trouble clearing the scanner. ER344. Sergeant James Furman said, “‘It’s your bra,’” which Hines denied, as she had no underwire in her bra. ER344. In front of other officers, Furman responded, “‘I don’t know that. I didn’t dress you up this morning.’” ER344. Hines tried five times to pass the scanner, and Furman kept ridiculing her, saying “‘it’s your bra, it’s your bra.’” ER310-11. Hines felt very disrespected and cursed him. ER311. Lieutenant Nielsen came from the office and told her to go to the gas station and remove her bra. ER313. Hines was “very stressed,” drove to the gas station, and “cried for an hour.” ER344. She filed a report about the incident. ER344.
On January 2, 2011, Hines heard Furman tell another officer in Spanish to “suck his dick.” ER342;ER28. Hines complained to Deputy Warden Bennie Rollins, but no one interviewed her about the incident. ER327-28.
B. Administrative Investigation and Conciliation
On June 5, 2009, Alice Hancock—who worked as a correctional officer at Florence West—filed a charge of discrimination with the Arizona Civil Rights Division (ACRD). The charge, which was dual-filed with EEOC, stated that Sergeant Robert Kroen pinched her vagina; she complained to Warden Maudlin, who did nothing; and Geo subsequently placed her on administrative leave based on a false accusation. ER406. Hancock alleged sex discrimination and retaliation.
ACRD, who had responsibility for investigating the charge, notified Geo and began an investigation. ER352(¶56);ER81-82. In response to ACRD’s request, Geo produced documents suggesting other women were also harassed at Florence West. ER82. As Geo admits, ACRD identified eight potentially aggrieved individuals during the investigation: Roxanne Valenzuela, Jennifer Younger, Frances Wilcox, Crystal Lopez, Alisa Roach, Sofia Hines, Erica Juarez, and an officer named “Morales.” ER82.
On May 19, 2010, ACRD issued a five-page determination finding reasonable cause to believe that Geo subjected Hancock and “a class of female employees” to sexual harassment and retaliation. ER417. The determination stated that Hancock worked at Geo’s facility in Florence, Arizona and Geo “operate[s] the low to medium security Return to Custody and Driving under the Influence unit[s] and the medium security sex offender unit at the Arizona State Prison-Florence West (“facility”).” ER417. Although the determination did not explicitly refer to CACF, the sex offender unit is in CACF. ER346(¶9). The determination detailed Kroen’s harassment of Hancock and Geo’s retaliation against her. ER417-18. The determination also stated that Tremont and Sergeant Jarrett Yoyokie had harassed other women. ER419. On May 25, 2010, EEOC adopted ACRD’s determination and issued its own determination finding reasonable cause to believe Geo discriminated and retaliated against Hancock “and a class of female[s]” and inviting Geo to conciliate. ER413-14.
On June 28, 2010, Plaintiffs provided a written “confidential conciliation/settlement communication” outlining the relief sought for Hancock and “a class of at least nineteen other similarly situated women.” ER423. Plaintiffs proposed specific damages for Hancock’s lost wages, front pay, and out-of-pocket expenses; $6,000,000 in emotional distress damages for Hancock and the class; and affirmative relief covering Geo’s Arizona facilities. ER424-28. On July 15, 2010, ACRD produced the entire non-privileged portions of the administrative investigation file and the audio recordings of the witness interviews. ER84-85.
The parties attended a conciliation meeting on August 19, 2010. ER85. Plaintiffs did not identify the aggrieved individuals or provide calculations about their damages. ER85. Although Geo refused to counter-offer for the class, EEOC lowered its monetary demand for the class to $5.15 million. ER400(¶¶92-95). Geo again refused to counteroffer as to the class, but EEOC nevertheless reduced its monetary offer once more to $5 million. ER371(¶97). Geo still refused to conciliate as to the class, and conciliation therefore failed. ER371(¶¶98-99).
After Plaintiffs filed suit, ACRD served on June 23, 2011, its initial disclosures identifying Hancock as an aggrieved person and Lopez, Roach, Younger, Wilcox, and Valenzuela as individuals likely to have discoverable information. ER86. On August 3, 2011, EEOC served its initial disclosures identifying Hancock as an aggrieved person and Younger as likely to have discoverable information. ER86. On August 5, 2011, Plaintiffs sent a “Notice of Class Litigation” letter to 144 female correctional officers employed at Florence West and CACF advising them that Plaintiffs could seek relief on their behalf if they experienced sexual harassment or retaliation. ER86.
On September 20, 2011, Plaintiffs responded to Geo’s interrogatories by identifying nineteen women as aggrieved individuals: (1) Hancock; (2) Roach; (3) Wilcox; (4) Valenzuela; (5) Younger; (6) Hines; (7) Valerie Banks; (8) Amy De La Cerda; (9) Jenna Ausema; (10) Sharon Dill; (11) Margarita Bourdon; (12) Patiricia Norrbom; (13) Jennifer Barrett; (14) Teuta Dema; (15) Crystal Burrell; (16) Catherine York; (17) Tonya Mireles; (18) Carol Garcia; and (19) Jessica Gonzales. ER82;ER85-86. On December 2, 2011, Plaintiffs identified (20) Sandra Nido and (21) Tamika Burrell as aggrieved individuals. ER87. Prior to the court’s deadline for doing so, Plaintiffs additionally identified as aggrieved individuals (22) Stephanie Miller; (23) Erica LaToya Loud; (24) Roberta Jones; and (25) Amber Servedio. See generally ER359;R.180,p.2 n.1;R.183,p.2.
2. District Court Rulings
Order on Failure to Satisfy Pre-Suit Requirements (R.172)
On April 17, 2012, the district court granted in part Geo’s motion for partial summary judgment, R.86, holding that EEOC failed to satisfy its pre-suit requirements as to the class. The court assumed that Title VII authorizes judicial review of the adequacy of EEOC’s investigation and cause determinations. ER98-99;ER106 (finding investigation unreasonable and determination deficient). The court also assumed that Title VII provides for a “failure to conciliate” defense that employers can use to avoid liability for discrimination when EEOC fails to conciliate in “good faith.” ER94-106. After concluding that §706 requires EEOC to investigate, find cause, and conciliate on an individual basis when suing on behalf of a class and that EEOC failed to do so, the court determined that EEOC failed to satisfy its pre-suit requirements. ER96-106. The district court stayed the action for further conciliation as to the five claimants identified during the investigation (Valenzuela, Younger, Roach, Hines, and Wilcox) but dismissed the remaining nineteen claimants who had not been identified during the investigation. ER99-106.
EEOC filed a motion to reconsider, which the court denied. R.188. Plaintiffs filed a motion to clarify that claimant Tonya Mireles was the “Morales” identified during the investigation, meaning she should not have been dismissed, but the court denied the motion. R.360. Plaintiffs filed a joint motion to certify for interlocutory appeal the district court’s holding that individualized investigation and conciliation is a pre-suit requirement. R.223. Although the district court acknowledged that substantial ground for difference of opinion existed as to the correctness of its ruling, the court denied the motion. ER355-57. The parties subsequently engaged in conciliation, which again failed.
Order on Geo’s motion for summary judgment (R.332)
Geo filed a second motion for summary judgment arguing that the claims on behalf of the remaining six women were untimely and/or should be dismissed on the merits. R.284. On March 25, 2013, the district court issued an order that: (1) limited the temporal scope of EEOC’s suit, rendering the claims for Roach and Wilcox untimely; (2) granted summary judgment as to the hostile work environment claim for Sofia Hines; and (3) denied summary judgment as to claims for Valenzuela, Younger, and Hancock. ER1.
The district court first held that the 300-day limitation of §706(e), 42 U.S.C. §2000e-5(e), ran for the class not from the charge but from the date of ACRD’s reasonable cause determination. ER29-36. The district court reached this ruling despite an absence of statutory support for it, and despite acknowledging that “Geo likely knew plaintiffs were investigating allegations of other aggrieved parties” during the investigation. ER33-34. The district court also held that discrete acts occurring after the cause determination were not actionable because they had never been investigated. ER35. Accordingly, the court limited the suit to claimants who experienced an act of harassment or retaliation between July 23, 2009, and May 19, 2010. ER36. Because Roach and Wilcox did not experience any acts after 2008, the court granted summary judgment as to them. ER37.
Finally, the district court concluded that no reasonable jury could find that Sofia Hines experienced severe or pervasive harassment. ER63-66.
Crediting Hilsden’s testimony that he only accidentally touched Hines, the court said no “reasonable person would . . . find accidental touching to be sexual harassment.” ER65. Even if Hilsden intentionally touched Hines, his “periodic offensive comments, some of which were not even directed at Hines,” were not actionable. ER65. Similarly, the court concluded that Richey’s “bump” of Hines was not sexual in nature. ER64.
The district court’s order left Hancock, Younger, and Valenzuela. Hancock settled her claims with Geo. R.354. After trial began, Plaintiffs and Geo filed a consent decree, which the court approved, resolving the claims for Younger and Valenzuela and providing for injunctive relief at Florence West. ER110. The consent decree provided explicitly that Plaintiffs “retain[ed] the right to appeal the Court’s April 17, 2012 and March 25, 2013, Orders” and to pursue remedies for the dismissed claimants. ER112(¶11).
determine the acceptability of a conciliation agreement, and Title VII’s confidentiality provision cannot be reconciled with judicial review of conciliation. Courts that have reviewed EEOC’s conciliation efforts have imposed a “good faith” standard, but the courts’ disparate application of this judicially-created standard reveals that no workable standard exists for measuring EEOC’s efforts.
In any event, nothing in the statute requires EEOC to investigate, find cause, and conciliate as to each individual when subsequently bringing suit under §706. Here, EEOC satisfied its pre-suit obligations by investigating Hancock’s charge of sex discrimination and retaliation, which revealed other female victims; issuing a reasonable cause determination finding Geo discriminated and retaliated against a “class” of aggrieved individuals at two of Geo’s facilities; and attempting to conciliate these claims for a “class” of women. Title VII requires no more.
Even if this Court rules, for the first time ever, that §706 requires EEOC to investigate, find cause, and conciliate as to each individual, the district court erred in dismissing the nineteen claimants. Title VII does not authorize dismissing potentially meritorious claims for a purported failure to sufficiently conciliate. The remedy for a failure to adequately conciliate—should Title VII be interpreted as affording review of conciliation at all—would be additional conciliation, not dismissal on the merits. Dismissal was particularly inappropriate here because, as the district court itself acknowledged, the courts are in disagreement as to whether §706 requires EEOC to carry out its pre-suit requirements on an individual basis. Given that this was the district court’s sole ground for dismissing the claimants—and that most circuits hold §706 does not impose an individual pre-suit requirement—the draconian remedy of dismissal was unwarranted. Rather, the court should have stayed the action for additional conciliation.
The district court also erred in holding that the 300-day limit ran for the class from ACRD’s determination instead of Hancock’s charge. Title VII does not require this. The charge is generally understood to put the employer on notice of both the violations in the charge and the possibility that EEOC’s investigation may uncover additional violations. The district court cited no Supreme Court or circuit authority for using the later determination date, which resulted in the dismissal of two remaining claimants. Even if the operative date is when an employer had notice of an expanded investigation, Geo had notice of the class claims before the determination. Nor is there any authority for the court’s conclusion that post-determination acts related to the same claim as contained in the determination are not actionable.
Finally, the court erred in granting summary judgment as to the hostile work environment claim for Sofia Hines. Contrary to the district court’s holding, harassment need not be sexual to be actionable. The court also erred by making credibility determinations. Viewed under this Court’s standard for a sex-based hostile work environment, the conduct warranted consideration by a jury.
petition for cert. filed, No.13-1019 (Feb. 25, 2014)
I. The district court erred in holding that EEOC failed to satisfy
Title VII’s pre-suit requirements.
Title VII authorizes EEOC to sue private employers to remedy unlawful discrimination and retaliation. 42 U.S.C. §2000e-5(f)(1). The process begins with the filing of a charge. 42 U.S.C. §2000e-5(b). The statute mandates that upon receiving a charge, EEOC shall “make an investigation,” determine whether “reasonable cause” exists “to believe the charge is true,” and, if so, “endeavor to eliminate any such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion.” Id. If EEOC is “unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action.” 42 U.S.C. §2000e-5(f)(1) (emphasis added). Significantly, EEOC is not bound by the four corners of a charge. Rather, “any discrimination . . . discovered in the course of a reasonable investigation” that is included in the “‘reasonable cause’ determination and [i]s followed by . . . conciliation” is actionable. EEOC v. Hearst, 553 F.2d 579, 580 (9th Cir. 1977); see Gen. Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980) (violations ascertained in course of reasonable investigation are actionable).
Here, the district court erred in dismissing nineteen claimants for EEOC’s purported failure to satisfy its Title VII’s pre-suit requirements, as Title VII does not authorize scrutiny of the sufficiency of EEOC’s administrative process or dictate that it must be performed individually, and EEOC satisfied its pre-suit requirements by providing notice of the class claim and conciliating.
A. Title VII does not provide for judicial review of the adequacy of EEOC’s administrative process or imply a “failure-to-conciliate” defense.
Contrary to the district court’s implicit holding, Title VII does not provide for judicial review of the sufficiency of EEOC’s investigations and determinations, nor does it provide for judicial review of conciliation through an implied affirmative defense.
1. The sufficiency of EEOC’s investigation and cause
determination is not reviewable.
As this Court has recognized, EEOC must receive a charge, investigate, and find cause before filing suit under §706. See EEOC v. Pierce Packing, 669 F.2d 605, 608 (9th Cir. 1982). A district court can verify these pre-suit requirements, if challenged, by looking at the charge and cause determination. But Title VII provides no authority for a district court to delve into the sufficiency of the agency’s investigation and cause determination, as the district court did here. ER96-99;ER106 (investigation and cause determination deficient). No language in Title VII provides for judicial review of the adequacy of the agency’s investigation and cause determination; no language establishes a standard of review for assessing the adequacy of EEOC’s investigation and cause determination; and no language sets out a remedy for an inadequate investigation or cause determination.
Consistent with the absence of statutory language authorizing review, courts have reasoned that scrutinizing the sufficiency of EEOC’s investigations and determinations is unwarranted because these administrative steps have no “determinative consequences.” Ward v. EEOC, 719 F.2d 311, 313-14 (9th Cir. 1983) (holding that neither Title VII nor the Administrative Procedure Act authorizes suits against EEOC by dissatisfied charging parties). Rather, the purpose of the investigation is “to determine if there is a basis for the charge,” while the purpose of the cause determination is to notify the employer of EEOC’s findings and “provide a basis for later conciliation proceedings.” EEOC v. Keco, 748 F.2d 1097, 1100 (6th Cir. 1984). Thus, EEOC’s cause determination “does not adjudicate rights and liabilities; it merely places the defendant on notice of the charges.” Id.; see Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (EEOC “cannot adjudicate claims or impose administrative sanctions. Rather, final responsibility for enforcement of Title VII is vested with federal courts.”); Georator v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (stating that EEOC’s “determination of reasonable cause” “is lifeless” and holding that neither Title VII nor the Administrative Procedure Act permits review of EEOC’s determinations). “If the charge is not meritorious,” that will be revealed in the “de novo trial in the district court.” Keco, 448 F.2d at 1100.
Accordingly, nearly every circuit to address the issue has held that the adequacy of EEOC’s investigations and cause determinations are beyond judicial review—including, as here, when an employer challenges EEOC’s investigation into class-wide discrimination. See, e.g., Serrano & EEOC v. Cintas Corp., 699 F.3d 884, 904 (6th Cir. 2012) (in class case, stating that courts may not inquire into sufficiency of investigation); EEOC v. Caterpillar, 409 F.3d 831, 833 (7th Cir. 2005) (neither the agency’s investigation nor class determination is judicially reviewable); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (“the nature and extent of [an EEOC] investigation are discretionary”); Keco, 748 F.2d at 1100-01 (court erred by inquiring into the sufficiency of the Commission’s investigation and cause finding as to “class” of women); Georator, 592 F.2d at 767 (EEOC’s cause findings are unreviewable). But see EEOC v. CRST Van Expedited, 679 F.3d 657 (8th Cir. 2012) (agency’s investigation and determination insufficient). District courts within this circuit also have held that the adequacy of EEOC’s investigation and cause findings are not justiciable. See, e.g., EEOC v. Gold River Operating Corp., No. 04-1349, 2007 WL 983853, at *3 (D. Nev. Mar. 30, 2007) (“[A]n employer may not litigate the adequacy of the EEOC’s investigation and determination.”).
As courts have recognized, permitting challenges to the sufficiency of EEOC’s investigations and determinations “would effectively make every Title VII suit a two-step action: first, the parties would litigate the question of whether EEOC had a reasonable basis for its initial finding, and only then would the parties proceed to litigate the merits of the action.” EEOC v. Chicago Miniature Lamp Works, 526 F. Supp. 974, 975 (N.D. Ill. 1981). And, in fact, this is exactly what has come to pass. Employers, like Geo, routinely attack the adequacy of EEOC’s investigation and cause determination. This requires EEOC, and the courts, to devote scarce resources and time to litigating an issue of no legal consequence while delaying resolution of the question Title VII was meant to address: whether unlawful discrimination occurred. Congress could not have intended this result. See Ward, 719 F.2d at 313 (permitting dissatisfied charging parties to sue EEOC would undermine enforcement and “could dissipate the limited resources of the Commission in fruitless litigation”).
2. Title VII does not imply a “failure-to-conciliate” defense.
The district court also erred in implicitly holding that judicial review of conciliation is appropriate in the form of an affirmative defense. Certainly, Title VII does not expressly provide for such a defense. The requirement that EEOC undertake conciliation efforts also does not implicitly create a defense for employers who have allegedly violated Title VII. See Mach Mining, 738 F.3d 171 (holding that Title VII does not authorize a “failure-to-conciliate” defense). This result is compelled by Title VII’s text and statutory scheme as well as by the absence of a meaningful standard for courts to apply.
a. Title VII’s text does not create a conciliation defense.
An analysis of whether Title VII implies an affirmative defense must “begin with the text of the statute,” being “mindful of the Supreme Court’s recent admonition that ‘Congress’ special care in drawing so precise a statutory scheme’ as Title VII ‘makes it incorrect to infer that Congress meant anything other than what the text does say.’” Mach Mining, 738 F.3d at 174 (quoting Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2530 (2013)). Here, the text of Title VII says nothing about a “failure-to-conciliate” defense employers can use to avoid liability, or about the reviewability of the adequacy of EEOC’s conciliation efforts.
To the contrary, the plain language of Title VII makes apparent that Congress did not intend to imply an affirmative defense. Specifically, §706 mandates that upon finding cause, EEOC “shall endeavor to eliminate” the “unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. §2000e-5(b) (emphasis added). The use of “informal” means Congress did not intend that EEOC must follow a rigid process in attempting conciliation. Hence, §706 simply requires EEOC to try, using informal means, to conciliate with an employer. Whether a conciliation agreement is acceptable is left to EEOC’s sole discretion, as §706(f)(1) states that EEOC may sue “if the Commission has been unable to secure . . . a conciliation agreement acceptable to the Commission.” As the Seventh Circuit observed in Mach Mining, “[i]t would be difficult for Congress to have packed more deference to agency decision-making into so few lines of text.” 738 F.3d at 174.
“An implied affirmative defense for failure to conciliate [also] conflicts directly with the confidentiality provision” of Title VII. Id. at 175.
Section 706(b) provides that “[n]othing said or done during and as a part of such informal endeavors may be made public by the Commission . . . or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” 42 U.S.C. §2000e-5(b). Anyone who violates this provision is subject to a $1,000 fine, imprisonment, or both. Id. Because this provision contains no exceptions, courts evaluating a failure-to-conciliate defense would have no evidence to review where the parties refused to provide written consent.  Mach Mining, 738 F.3d at 175. Alternatively, courts could “construct an implied set of exceptions to the sweeping statutory requirement of confidentiality.” Id. The better reading of the statute, however, is to “avoid the conflict, stick to the text, and reject both the non-statutory affirmative defense and the nonstatutory exceptions to confidentiality.” Id.
b. No workable standard of review exists.
Title VII neither implies a failure-to-conciliate defense nor provides any standard for measuring whether EEOC satisfied its pre-suit obligations, making it impossible for courts—or the agency—to assess with any modicum of consistency whether EEOC met its obligations. Some courts have held that EEOC must conciliate in “good faith.” But this “good faith” standard is not in Title VII and cannot be reconciled with the total discretion the statute affords EEOC to determine whether a conciliation agreement is acceptable.
Moreover, courts applying the “good faith” standard have fundamentally disagreed on its application, underscoring that no workable standard exists for measuring what Congress directed would be a discretionary process. The Sixth Circuit and the Tenth Circuit have adopted a deferential standard, looking only at “whether the EEOC made an attempt at conciliation” without evaluating “the form and the substance” of the conciliation efforts. Keco, 748 F.2d at 1102 (emphasis added); see also EEOC v. Zia, 582 F.2d 527, 533 (10th Cir. 1978) (courts should not examine the details of conciliation). The majority of district courts within the Ninth Circuit—like the district court below—have followed this approach. See, e.g., EEOC v. Alia, 842 F. Supp. 2d 1243, 1255 (E.D. Cal. 2012) (citing five district court decisions applying the deferential standard). The Second, Fifth, and Eleventh Circuits, however, have adopted a three-part test that entails a heightened review of EEOC’s conciliation conduct. See EEOC v. Asplundh Tree Expert, 340 F.3d 1256, 1259 (11th Cir. 2003); EEOC v. Johnson & Higgins, 91 F.3d 1529, 1534 (2d Cir. 1996); EEOC v. Klingler Elec., 636 F.2d 104, 107 (5th Cir. 1981).
But even courts purporting to apply the same standard of review do so in markedly different ways, precluding courts, or EEOC, from assessing with any consistency whether EEOC made a “good faith” effort to conciliate. For instance, some courts applying a deferential standard have required EEOC to identify all claimants during conciliation; others have not. Some courts applying a deferential standard have required EEOC to provide the basis for a monetary demand; others have not.  Some courts purporting to apply a deferential standard have scrutinized the purported reasonableness of EEOC’s conciliation demand, while others applying a heightened standard have not. See Mach Mining, 738 F.3d at 176 n.2 (discussing courts’ disparate application of good-faith standard).
What these cases demonstrate is that courts have failed to come up with any workable standard for assessing the sufficiency of EEOC’s conciliation efforts. The lack of a metric in the statute by which to analyze EEOC’s conduct on anything but an ad hoc basis underscores that Congress “did not intend for judicial review of conciliation though an implied affirmative defense.” Mach Mining, 738 F.3d at 178.
Further, although Geo did not challenge EEOC’s conciliation under the Administrative Procedure Act (APA), the APA “casts a helpful light because the lack of a workable standard for courts to apply makes conciliation look very much like an action ‘committed to agency discretion by law,’” excepted from APA review. Mach Mining, 738 F.3d at 177 (quoting 5 U.S.C. § 701(a)).
c. EEOC is already committed to robust conciliation.
The subtext underlying the debate over implying a failure-to-conciliate defense is the notion that EEOC otherwise would have no incentive to conciliate vigorously. This premise is demonstrably wrong. EEOC receives over 90,000 charges yearly but files only a few hundred merits suits. For instance, EEOC filed 122 merits suits in fiscal year 2012 and 131 merits suits in fiscal year 2013. http://www.eeoc.gov/eeoc/ statistics/enforcement/litigation.cfm. In contrast, in fiscal year 2013, EEOC successfully conciliated 1,437 charges (out of 3,515 cause determinations). http://www.eeoc.gov/eeoc/statistics/ enforcement/all.cfm. Consistent with those figures, EEOC obtains far greater relief through non-litigation resolutions than litigation. In fiscal year 2013, EEOC obtained $372.1 million through non-litigation resolutions (conciliation, mediation, settlements, and withdrawals with benefits), id., but recovered just $38.6 million by resolving 209 merits suits. http://www.eeoc.gov/eeoc/statistics/enforcement/litigation.cfm. Given that enforcement efforts are finite, no one has more invested in conciliation, and the informal resolution of charges, than EEOC.
d. A failure-to-conciliate defense undermines conciliation
and Title VII’s enforcement.
This Court also should reject an implied failure-to-conciliate defense because it “invites employers to use the conciliation process to undermine enforcement of Title VII rather than to take the conciliation process seriously as an opportunity to resolve a dispute.” Mach Mining, 738 F.3d at 178. Conciliation becomes not an opportunity to resolve disputes informally and inexpensively prior to litigation but instead becomes another front in a potential litigation battle where gamesmanship rather than candor is rewarded. For instance, an employer who withholds the names of victims during EEOC’s investigation and conciliation can then turn around during litigation and seek dismissal on the merits for EEOC’s “inadequate presuit efforts,” rewarding “employer recalcitrance” and thwarting conciliation. CRST, 679 F.3d at 697 (Murphy J., dissenting).
Litigating the conciliation defense has, in fact, “turn[ed] what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court.” Mach Mining, 738 F.2d at 179. Permitting the litigation of the adequacy of EEOC’s conciliation efforts has turned what Congress intended to be an informal process into a formalized one, and it has imposed “significant costs” on the agency, employers, and the courts. Id. In this Circuit alone, employers have challenged the adequacy of EEOC’s conciliation efforts in at least sixteen cases in the last eight years. Assertion of a failure-to-conciliate defense is not the exception anymore, but the norm, diverting EEOC’s scare resources from its mission: the enforcement of Title VII.
B. EEOC satisfied Title VII’s pre-suit requirements.
Even if Title VII affords judicial scrutiny into the sufficiency of EEOC’s investigation, cause determinations, and conciliation efforts, the district court erred in finding EEOC’s pre-suit efforts inadequate. ER96-106. Contrary to the district court’s holding, §706 does not require EEOC to investigate, find cause and conciliate on an individual basis where EEOC pursues a class claim. Because EEOC otherwise satisfied its pre-suit requirements, the court erred in dismissing the nineteen claimants.
1. Title VII does not require EEOC to investigate, find cause,
and conciliate on an individual basis when suing
on behalf of a class.
We again start with the text of Title VII. Nothing in the text of §706 requires EEOC to investigate, find cause, or conciliate on an individual basis. Rather, the statute dictates only that EEOC shall investigate a charge, determine whether reasonable cause exists, and “endeavor” to conciliate. When EEOC has been unable to secure a conciliation agreement “acceptable to the Commission,” it may sue. 42 U.S.C. §2000e-5(f)(1).
Nor does Supreme Court precedent impose an individual requirement under §706. To the contrary, General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980), strongly suggests it does not. In General Telephone, the Supreme Court held that EEOC was not required to seek class certification under Rule 23 before pursuing its §706 claim of sex discrimination on behalf of “female employees in General Telephone’s facilities” in California, Idaho, Montana, and Oregon. 446 U.S. at 321. Significantly, EEOC had filed suit after investigating just four individual charges and concluding that discrimination was widespread. See id. at 320, 324. Nothing in the Supreme Court’s opinion indicates EEOC had identified all potential claimants before filing suit, and nothing in the Supreme Court’s opinion suggests that was necessary. Rather, the Supreme Court said, “the EEOC need look no further than §706 for its authority to bring suit in its own name for the purpose . . . of securing relief for a group of aggrieved individuals.” Id. at 324.
The district court’s conclusion that §706 requires individualized investigation and conciliation also conflicts with EEOC v. Bruno’s Restaurant, 13 F.3d 285 (9th Cir. 1993). In Bruno’s, this Court held that attorney’s fees were not warranted for the agency’s purported failure to conciliate its pattern-or-practice “claim” because EEOC could have reasonably believed its conciliation attempts were futile after the employer refused to conciliate as to the charging party. Id. at 288-89. In reaching this ruling, this Court stated that “‘in a class action suit, [t]he EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant.’” Id. at 289 (quoting EEOC v. Rhone-Poulenc, 876 F.2d 16 (3d Cir. 1989)) (emphasis added). This Court also cited with approval EEOC v. American National Bank, 652 F.2d 1176, 1185-86 (4th Cir. 1981), which held that EEOC’s investigation and conciliation efforts were sufficient where the agency conciliated with respect to racially discriminatory practices as to only one branch of the bank but alleged in its complaint discrimination at other branches. Id.
Here, the district court disregarded Bruno’s on the ground it was a “section 707 pattern or practice claim.” ER100; see 42 U.S.C. §2000e-6 (§707). But “pattern or practice” is an evidentiary framework, not a “claim,” and EEOC may use that framework under either §706 or §707. See Cintas, 699 F.3d at 894-95. In any event, the pre-suit conciliation requirements are the same under §706 and §707 when a charge has been filed (as it was in Bruno’s), as §707 states that its actions should be “conducted in accordance with the procedures set forth in [§ 706].” 42 U.S.C. §2000e-6(e). But even if §706 and §707 imposed different pre-suit requirements (although they plainly do not), there is absolutely no support for the district court’s reading of Bruno’s as a §707 case. While Bruno’s refers to EEOC’s “pattern or practice claim,” 13 F.3d at 289, Bruno’s does not say EEOC filed under §707. To the contrary—as even the district court had to admit, ER100 n.18—Bruno’s states EEOC brought suit under 42 U.S.C. §2000e-5, which is §706. Id. at 287.
According to the district court, Bruno’s is also inapposite because it concerned attorney’s fees. But that context does not undermine this Court’s explicit holding that individual conciliation is not required in an EEOC suit on behalf of a class. Finally, in a tortured and illogical analysis, the district court concluded Bruno’s did not control because this Court relied on Rhone-Poulenc, “an ADEA case,” that relied on the underlying district court decision, which, in turn, relied on EEOC v. Chrysler Corp., 546 F. Supp. 54, 62 (D. Mich. 1982), which, in turn, relied on Marshall v. Sun Oil, 605 F.2d 1331, 1334 (5th Cir. 1979), a pattern-or-practice ADEA case. ER100-01. Aside from the fact the district court was not at liberty to disregard Bruno’s—binding Title VII precedent—there is simply no validity to the district court’s view that ADEA cases are inapposite because once a charge is filed, the ADEA’s conciliation requirements are identical to Title VII’s. Compare 29 U.S.C. §626(b) (EEOC “shall attempt to eliminate the discriminatory practice . . . through informal methods of conciliation, conference, and persuasion”), with 42 U.S.C. §2000e-5(b) (EEOC “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”).
The district court’s opinion also conflicts with Lucky Stores v. EEOC, 714 F.2d 911 (9th Cir. 1983). In that case, the charging party alleged discrimination at the defendant’s warehouse in Vacaville, California. EEOC investigated and issued a determination finding the defendant had “exclude[ed] women from warehouse positions.” Id. at 912. After conciliation failed, EEOC filed suit and added claims as to warehouses in other cities that had merged into the Vacaville warehouse before the charge was filed. On appeal, this Court held that because the Vacaville warehouse was the successor to the other two warehouses, the defendant had received adequate notice during the investigation of the claims in the lawsuit. Id. at 912-13. Thus, Lucky Stores supports the view that EEOC need not individually investigate, find cause, and conciliate prior to filing suit. Rather, the critical issue is whether the employer received “‘adequate notice during the administrative investigation of the substance of the issue subsequently raised.’” Id. (citation omitted); see also Occidental Life Ins. v. EEOC, 432 U.S. 355, 372 n.32 (1977) (“Prompt 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.”).
Most circuits that have considered the issue agree that EEOC does not need to individually investigate and conciliate. As discussed, this was the Third Circuit’s holding in Rhone-Poulenc, 876 F.2d at 17, an ADEA case, and the Fourth Circuit’s holding in American National Bank, 652 F.2d at 1185-86, a Title VII §706 case. The Sixth Circuit has also rejected the notion that §706 requires individualized conciliation, as has the Fifth Circuit in an ADEA case. See Cintas, 699 F.3d at 904-05 (holding EEOC’s conciliation efforts adequate in §706 pattern-or-practice case, even though EEOC did not individually investigate or conciliate); Keco, 748 F.2d at 1101-02 (holding that EEOC satisfied its conciliation obligation under §706 although it never identified class members); Sun Oil, 605 F.2d at 1334 (requiring individualized conciliation “seriously distorts the nature of conciliation” and “forces the courts to engage in a standardless and burdensome review of the [agency’s] decision”). The Tenth Circuit has implicitly held that §706 does not require individual conciliation. See EEOC v. United Parcel Service, 860 F.2d 372, 374-376 (10th Cir. 1988) (EEOC may proceed with class litigation under Title VII even where the charging party has reached a private settlement and EEOC is unable to identify other victims); EEOC v. St. Louis-San Francisco Ry., 743 F.2d 739, 743-44 (10th Cir. 1984) (holding in §706 case that EEOC could pursue classwide relief although it had identified only the charging party). Similarly, the Seventh Circuit’s rulings have implicitly rejected an individualized requirement. See Mach Mining, 738 F.3d 171 (refusing to review adequacy of conciliation where charge alleged individual failure-to-hire but EEOC sued for a class); Caterpillar, 409 F.3d at 832-33 (court would not review EEOC’s investigation to determine whether it investigated as to the class).
Numerous district courts within this Circuit have also held that §706 does not require individualized investigation and conciliation. See, e.g., EEOC v. Evans Fruit, 872 F. Supp. 2d 1107, 1111 (E.D. Wash. 2012) (rejecting CRST and stating “the undersigned is not persuaded the Ninth Circuit would adopt a rule that the EEOC must specifically identify, investigate and conciliate each alleged victim of discrimination before filing suit”); EEOC v. Dillard’s, No. 08-1780, 2011 WL 2784516, at *6 (S.D. Cal. July 14, 2011) (in ADA suit, which utilizes procedures of §706, stating “EEOC . . . is not required to identify every potential class member” before filing suit); EEOC v. California Psychiatric Transitions, 644 F. Supp. 2d 1249, 1272-73 (E.D. Cal. 2009) (EEOC not required to identify each women for whom it seeks relief). But see EEOC v. Swissport, No. 10-2101, 2013 WL 68620, at *26 (D. Az. Jan. 7, 2013) (§706 requires individual investigation and conciliation).
The district court’s only direct authority for its holding that §706 does require individualized investigation was EEOC v. Cintas Corp., No. 04-40132, 2010 WL 3733978, at *9-10 (E.D. Mich. Sept. 20, 2010), and EEOC v. CRST, 679 F.3d 657 (8th Cir. 2012). ER96-99. But Cintas was reversed on appeal, 699 F.3d 884, and CRST is an outlier decision that was, in EEOC’s view, wrongly decided for the reasons set out above and cogently discussed by the dissent. See CRST, 679 F.3d at 695 (Murphy, J., dissenting). The above discussion also shows that the district court was incorrect in saying that the only cases rejecting the individualized requirement were §707 cases, §706 pattern-or-practice “cases,” or sought only prospective relief. ER101 n.20. To the contrary, most of the cases cited above concern §706. But, again §706 and §707 impose the same pre-suit requirements, so §707 cases are equally instructive. See 42 U.S.C. §2000e-6(e). Moreover, EEOC may maintain a pattern-or-practice framework under §706 as well as §707, eliminating this purported distinction. Cintas, 699 F.3d at 894-95.
Contrary to the district court’s opinion, the availability of compensatory and punitive damages in §706 actions does not justify interpreting the statute as requiring individualized conciliation in §706 cases. ER104. Congress made those damages available when it enacted the 1991 Civil Rights Act, which amended Title VII. It strains credulity to think that by expanding the damages available in §706 suits, Congress intended to change the pre-suit requirements for a §706 action. This reasoning also makes no sense because it suggests that prior to 1991, the pre-suit requirements for §706 and §707 claims were the same (since compensatory and punitive damages were equally unavailable), but that in 1991 the requirements diverged, even though Congress never amended the part of the statute pertaining to EEOC’s pre-suit requirements.
It also defies the reality of EEOC’s administrative process to hold that §706 and §707 impose different pre-suit requirements. Different requirements would require the agency to have two trajectories for charges: those that might eventually be brought under §706 (by the government or a private party) and those that might be brought under §707 (by the government). But individuals who fill out charges do not check a box for “§706” or “§707.” Rather, individuals check boxes to indicate the basis of the discrimination; they explain what happened; and, sometimes, they state whether other employees also experienced discrimination. EEOC then launches an investigation, which may or may not turn up evidence of a pattern or practice of discrimination and/or other victims. If the investigation culminates in a finding of discrimination, EEOC conciliates. Only after the failure of conciliation does EEOC make a final determination about whether to sue and, if so, whether it will sue under §706 and/or §707. It may even be that it is not until after a complaint is filed that EEOC determines whether it will pursue a pattern-or-practice framework. It therefore makes no sense to peg the agency’s pre-suit obligations on whether EEOC eventually sues, and if so, whether it sues under §706 or §707.
Finally, requiring EEOC to investigate and conciliate each class member on an individualized basis would dramatically increase the length of an EEOC investigation, delaying even further the resolution of an EEOC charge. See Sun Oil, 605 F.2d at 1335 (“The large scale discriminator would present the [agency] with an onerous and costly burden of investigation if the [agency] were required to prove each individual case of discrimination”). Limiting EEOC’s suit to class members identified during the investigation would also encourage employers to hide the ball with EEOC, as employers could avoid disclosing complaining employees during the investigation and conciliation and “then reveal the names during court ordered discovery and seek dismissal of the entire case on the ground of inadequate presuit efforts by the EEOC.” CRST, 679 F.3d at 696-97 (Murphy, J., dissenting).
2. EEOC investigated, issued a cause finding as to the class, and attempted conciliation.
In every respect, EEOC satisfied its pre-suit requirements, as EEOC investigated Hancock’s charge; notified Geo of the scope of the charges against it; and offered Geo an opportunity to conciliate.
It is well settled that EEOC may seek relief for violations ascertained during the course of a reasonable investigation “provided such additional discrimination was included” in EEOC’s cause determination and “was followed by compliance with the conciliation procedures of the Act.” Hearst, 553 F.2d at 580. Here, ACRD’s investigation of Hancock’s charge revealed additional victims of discrimination and retaliation. ACRD’s detailed five-page determination, which EEOC adopted, notified Geo of scope of the charges, including the class claims. ER417-21. The determination explicitly referred to Florence West and to the “medium security sex offender unit,” which is in CACF; named Tremont, Kroen, and Yoyokie as harassers; detailed the harassment and retaliation directed at Hancock and others; and discussed Tremont’s transfer to the “sexual offenders unit,” housed in CACF. ER417-21. This satisfied the notice requirement because it informed Geo of the scope of the charges. See Lucky Stores, 714 F.2d at 912-13 (holding notice adequate where determination referred only to successor warehouse but EEOC’s complaint included two other warehouses). Because the determination was “specific as to geography” (Florence West and CACF), “to conduct” (sex discrimination and retaliation), to the class (“women”), and even named three harassers, it was even “sufficient to allow Defendant to conduct its own investigation and estimate how many female[s] . . . and, perhaps, which [females] could have been subjected to discrimination.” EEOC v. Unit Drilling, No.13-147, 2013 WL 5935480, at *4 (N.D. Okla. Nov. 1, 2013). It is also undisputed that EEOC and Geo engaged in conciliation efforts, which failed.
EEOC vigorously disputes that Title VII authorizes review of the sufficiency of conciliation through an implied failure-to-conciliate defense. But assuming, arguendo, that Title VII affords review, EEOC’s conciliation efforts were more than sufficient. EEOC agrees with the district court that, if conciliation is reviewable, a deferential standard applies. ER65. But EEOC’s conciliation passes muster under even the heightened standard because EEOC: (1) outlined its reasonable cause for believing Geo violated Title VII; (2) offered Geo a chance to conciliate; and (3) responded “in a reasonable and flexible manner to [Geo’s] reasonable attitudes.” Klingler, 636 F.2d at 107 (setting out heightened standard).
As discussed above, ACRD’s determination outlined in detail the reasonable cause for believing Geo violated Title VII as to the class. The determination even provided Geo enough information to determine
the potential size of the class. Although not required, Plaintiffs gave Geo even more information about the class during conciliation, as ACRD produced the entire non-privileged portions of its investigation file and the audio-recorded witness interviews. ER84-85. Plaintiffs’ written conciliation offer additionally informed Geo that the class consisted of “at least nineteen” claimants, requested $6,000,000 in emotional distress damages for Hancock and the class, and detailed the affirmative relief requested. ER85. This information provided Geo a meaningful opportunity to conciliate.
Plaintiffs and Geo also attended a lengthy in-person conciliation meeting. ER85. Responding in a flexible manner, EEOC twice lowered its monetary demand for the class, eventually by $1 million. ER85. But Geo refused to even counter-offer, ER400, claiming it needed more information about the class—despite the fact Geo’s own internal investigation, as well as the information Plaintiffs’ provided, gave Geo plenty of information about the widespread harassment.
Consequently, the record in this case compels the conclusion that EEOC satisfied its pre-suit requirements.
II. Even if Title VII authorizes review and EEOC failed to satisfy its pre-suit requirements, the district court erred in dismissing the nineteen claimants.
Assuming, arguendo, that Title VII authorizes judicial scrutiny of the adequacy of EEOC’s administrative process and that this Court holds—for the first time—that §706 requires EEOC to perform its pre-suit requirements on an individual basis when seeking class relief, the court’s dismissal of the nineteen claimants still must be reversed.
A. Title VII does not authorize dismissal on the merits
for a failure of process.
Even if this Court were to recognize an implied failure-to-conciliate defense, the appropriate remedy for insufficient conciliation is not the dismissal of EEOC’s potentially meritorious claims as to nineteen individuals. Instead, it would be more conciliation.
Title VII itself does not authorize dismissal for inadequate conciliation. Mach Mining, 738 F.3d at 183. It does not even hint at it. To the extent the statute sheds any light on the appropriate remedy for inadequate conciliation, Title VII suggests that the remedy would be a stay for additional conciliation. See 42 U.S.C. §2000e-5(f)(1) (court may stay action for up to 60 days when EEOC intervenes in private action so that EEOC may seek “to obtain voluntary compliance”). A stay for further conciliation would be the appropriate remedy because Geo’s challenge to EEOC’s conciliation is “solely about process and not substance.” Mach Mining, 738 F.3d at 184. Supreme Court precedent makes clear that generally the remedy for a process defect is simply “more process, not letting one party off the hook entirely.” Id.
B. Even if available, dismissal was unwarranted here.
Even accepting that a particular case could be dismissed on the merits for EEOC’s failure to conciliate, dismissal was “far too harsh a sanction” here. Klingler, 636 F.2d at 107; see also EEOC v. Bimbo Bakeries USA, 2010 WL 598641, at *7 (M.D. Pa. Feb. 17, 2010) (calling dismissal a “draconian” remedy and staying action for further conciliation). This is not a case in which EEOC engaged in “grossly arbitrary and unreasonable conduct” or caused Geo “substantial prejudice.” Klingler, 636 F.2d at 107 (suggesting this is the standard for dismissal). Nor is this a case in which EEOC failed to issue a determination or denied an employer the chance to conciliate. Cf. EEOC v. Westvaco Corp., 372 F. Supp. 985, 994 (D. Md. 1974) (dismissal appropriate where EEOC had failed to make any reasonable cause determination or provide any opportunity for conciliation before suit). It also cannot be said that EEOC failed to act reasonably in responding to Geo during conciliation. Cf. Asplundh, 340 F.3d 1256 (conciliation lacked good faith where EEOC gave employer only 12 days to respond to proposal and refused to entertain the company’s belated response and request to continue conciliation).
Rather, the district court’s sole reason for dismissing nineteen claimants was EEOC’s failure to individually investigate, find cause, and conciliate. But even assuming this Court were to agree with the district court’s view of §706’s requirements, the district court abused its discretion in dismissing the nineteen claimants. The district court did not cite any Supreme Court or Ninth Circuit precedent suggesting this was a requirement EEOC should have known about; to the contrary, Supreme Court and Ninth Circuit precedent have suggested EEOC does not have to individually satisfy its pre-suit requirements. In fact, at the time of the parties’ conciliation in 2010, no circuit had held that §706 requires EEOC to investigate, find cause, and conciliate on an individual basis when suing on behalf of a class. The Eighth Circuit became the first—and only—circuit to reach this conclusion in 2012 when it decided CRST. See CRST, 679 F.3d at 696 (Murphy, J., dissenting) (“Neither Title VII nor [the Eighth Circuit’s] prior cases require that the EEOC conduct its presuit obligations . . . individually . . . .”). As discussed, numerous district courts within this Circuit have held EEOC need not individually investigate and conciliate. See, supra, at pp.44-45. In its order denying Plaintiffs’ motion for interlocutory appeal of this issue, the district court itself even “acknowledge[d] that its April 17, 2012, Order raises questions of law about which ‘there is substantial ground for difference of opinion.’” ER356.
Accordingly, the district court’s dismissal of nineteen claimants for EEOC’s failure to meet a requirement the agency never before knew it had to satisfy was a clear abuse of discretion. More than it punished EEOC, the dismissal punished the nineteen female correctional officers whose claims will now never see the inside of a courtroom. This outcome undermined Title VII’s remedial purpose. This Court should therefore reinstate the nineteen claimants or, at most, remand for additional conciliation.
III. The district court erred in limiting the class claims to the 300 days preceding the cause determination.
The district court erred in limiting EEOC’s suit to claimants who experienced an act of harassment, or a discrete act of retaliation, within the 300 days before the cause determination and in barring post-determination retaliation.
A. The 300-day limit runs from the charge.
Based solely on a trio of out-of-circuit district court decisions, the district court held that the 300-day limitation period of §706 began to run for the class claims of hostile work environment and retaliation from May 19, 2010—the date of ACRD’s determination that Geo subjected a class of women to discrimination and retaliation—rather than June 5, 2009, the date of Hancock’s charge. ER31-35. No circuit court has ever reached this misguided conclusion—which finds no support in the statute—and this Court should decline to be the first.
It is well settled that EEOC may seek relief for violations ascertained during the course of a reasonable investigation that were included in the cause determination and conciliated. See General Telephone, 446 U.S. at 331; Hearst, 553 F.2d at 580. An employer who receives notice of a charge, as Geo did, is therefore on notice that the investigation may expand to encompass additional violations. The determination serves to keep “a potential defendant . . . informed of the progress of the action.” Occidental, 432 at 372. Accordingly, in assessing the applicable limitations period for violations ascertained during the investigation, courts should focus on the filing of the charge as the operative date for the limitations analysis. See 42 U.S.C. §2000e-5(e)(1) (“a charge . . . shall be filed” by an aggrieved individual “within three hundred days after the alleged unlawful employment practice occurred”). Thus, the limitations period should run from Hancock’s charge, not ACRD’s determination.
The cases cited by the district court for its reliance on the date of the determination are, in EEOC’s view, incorrect. Moreover, EEOC v. Freeman, No. 09-2573, 2011 WL 337339 (D. Md. Jan. 31, 2011), is on appeal to the Fourth Circuit. See EEOC v. Freeman, No. 13-2365 (4th Cir.), and EEOC v. Princeton Healthcare Sys., No. 10-4126, 2012 WL 5185030, (D.N.J. Oct. 18, 2012), has no final, appealable order yet. Even if correctly decided, these cases are inapposite because they involved new claims discovered during the investigation, but EEOC’s suit added only new claimants.
That leaves EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539, 547 (W.D. Va. 2001), as the district court’s sole authority for holding the limitations periods ran from the determination. Optical Cable held that the limitations period for EEOC’s pattern-or-practice race and sex discrimination ran from the determination because the charge alleged only individual race discrimination. EEOC disagrees with Optical Cable, but, in any event it relied on EEOC v. Gen. Elec., 532 F.2d 359, 372 (4th Cir. 1976), which merely held that, as an equitable matter, the two year back pay period of 42 U.S.C. §2000e-5(g), would normally run from EEOC’s formal notice of the expanded investigation.
Thus, any claimant who experienced an act of harassment or retaliation after August 9, 2008—300 days before Hancock’s charge—was timely. The district court therefore erred in granting summary judgment as to the hostile work environment claims for Wilcox and Roach because each woman experienced an act of harassment during that period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002) (charge is timely if one act of harassment that forms the hostile work environment occurs during the charge-filing period). Specifically, Wilcox testified to daily harassment by Tremont, among others, prior to leaving Geo on September 1, 2008. Tremont also harassed Roach on a daily basis, and he did not transfer to CACF until November 18, 2008. Both women therefore experienced harassment during the 300 days between August 1, 2008, and June 5, 2009, rendering EEOC’s hostile work environment claim on their behalf timely. Upon remand, the court should also determine whether either woman experienced a discrete act of retaliation during the limitations period. See R.285(¶287)(discussing Roach’s claim of 2008 retaliation).
B. Geo had notice of the class claims before the
Even if the 300-day limitation runs from when an employer receives notice of claims discovered during an investigation, the district court erred in selecting May 19, 2010, as that date. The district court itself “agree[d] that the evidence . . . suggests that Geo likely knew Plaintiffs were investigating” as to a class during the investigation. ER34. The record actually compels this conclusion. Geo admits ACRD asked during the investigation about complaints similar to Hancock’s, ER353(¶66), and ACRD sent letters on 4/6/10 and 4/15/10 informing Geo it expanded the investigation to include three additional woman. ER82;ER377-382.
C. EEOC can seek relief for post-determination acts.
The district court further erred in summarily holding that retaliatory acts after the May 19, 2010, determination were time-barred. ER35-36. The district court did not cite any provision of Title VII for this proposition, as there is none. Nor did the district court cite any Supreme Court or Ninth Circuit precedent. Instead, the district court quoted Hipp v. Liberty Nat’l Life Ins., 252 F.3d 1208, 1225 (11th Cir. 2001)—a private action—for the proposition that in a “piggyback” case, non-filing plaintiffs must file their own charges as to claims arising after the charge. ER35-36. Even if Hipp were persuasive as to a private “piggyback” action, it does not apply to EEOC actions. As the Supreme Court has recognized, different rules may apply to EEOC actions, which seek to vindicate the public’s interest in eradicating employment discrimination. See EEOC v. Waffle House, 534 U.S. 279, 297 (2002) (stating that “[w]e have recognized several situations in which EEOC does not stand in the employee’s shoes” and holding that agency can pursue victim-specific relief even where charging party signed arbitration agreement).
Permitting EEOC to remedy additional post-determination acts is consistent not only with the agency’s public interest mission but also with Title VII’s charge-filing requirements: ensuring prompt notice to the employer and providing EEOC an opportunity to investigate and conciliate. The concern about stale claims that underlies the charge-filing requirement is not at stake when it comes to additional post-determination acts because they are more recent. Cf. Morgan, 546 U.S. at 109 (responding to Congress’ preference for the prompt resolution of charges by holding a private party must file a charge within 300 days of each discrete act). EEOC also already had notice of the claim and provided the employer an opportunity to conciliate, and there is no reason to think that when conciliation on a claim has failed, additional conciliation as to additional post-determination acts would succeed.
Requiring a new charge, new investigation, new conciliation, and new lawsuit for additional post-determination acts would also be as much of a waste of agency and judicial resources as requiring a new charge for claims discovered during an investigation—which this Court long ago said was unnecessary because it would “champion form over substance and . . . generate an inexcusable waste of valuable administrative resources and intolerable delay in violation of statutory purpose.” EEOC v. Occidental Life Ins. Co., 535 F.2d 533, 542 (9th Cir. 1976) (quotation marks and citation omitted), aff’d 432 U.S. 355 (1977). Similarly, this Court adopted the “piggyback” rule in private actions—allowing non-filing plaintiffs to “piggyback” on to a filed charge—because “it would be duplicative and wasteful for complainants with similar grievances to have to file identical notices . . . .” Harris v. County of Orange, 682 F.3d 1126, 1136 (9th Cir. 2012). It would be equally “duplicative and wasteful” to require post-determination charges pertaining to the same claim (retaliation for opposing sex discrimination) and same operative facts (same women, same facilities) as the original charge and determination. Cf. Vasquez v. County of Los Angeles, 349 F.3d 634, 644-45 (9th Cir. 2003) (barring post-charge retaliation claims unrelated to operative facts of charge).
Finally, the facts of this case underscore why EEOC should be able to pursue relief for post-determination acts, especially retaliatory ones. In April 2012, Geo began interrogating claimants about the claims in this lawsuit, denying them a chance to talk to ACRD or EEOC attorneys, and threatening at least one claimant with disciplinary action and/or unpaid leave if she refused to answer and leaving other women feeling their jobs were threatened. See R.176,p.9; ER332(¶12);ER273(¶34). Plaintiffs moved for a motion for a protective order, which the court granted. ER358. But under the district court’s ruling, EEOC could not pursue any post-determination acts of retaliation, even though Geo is obviously on notice of these recent allegations. Given that Geo was already alleged to have engaged in retaliation against women opposing discrimination, it is also unrealistic, and unfair, to require those women to file new charges, thereby inviting more retaliation.
IV. A jury could find Sofia Hines was subjected to a hostile work
This Court has set a high standard for the granting of summary judgment in employment discrimination cases.” Schnidrig v. Columbia Mach., 80 F.3d 1406, 1410 (9th Cir. 1996). Contrary to the district court’s ruling, EEOC offered more than enough evidence to overcome summary judgment
To establish a prima facie case, EEOC needed to “allege[s] conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991). All the circumstances must be considered, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” Nichols v. Azteca Rest. Enter., 256 F.3d 864, 872 (9th Cir. 2001) (internal quotation marks and citation omitted).
The district court’s dismissal of Hines’ claim was based on a misunderstanding of the hostile work environment standard and a misapplication of the summary judgment standard. The court discounted some conduct as not “of a sexual nature,” ER64, but this Court has recognized that harassment need not be sexual in nature in order to state a hostile work environment claim. EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 844-45 (9th Cir. 2005). Rather, the harassment need only be based on sex. Id. The district court also erred in discounting conduct as “not even directed at Hines.” ER65. This Court has said that “offensive comments do not all need to be made directly to an employee for a work environment to be considered hostile.” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008). The court also erred, on summary judgment, in crediting Hilsden’s statement that he accidentally touched Hines over Hines’ testimony that he intentionally spanked her. ER65. This Court has repeatedly stated that credibility determinations should be resolved at trial, not on summary judgment. Davis, 520 F.3d at 1096 n.11.
Here, the harassment was sufficient to warrant a jury’s consideration. A jury could find that Hilsden—a supervisor that day with the power to “run the yard”—intentionally spanked Hines in front of inmates and a cadet, which was a deeply offensive and humiliating act that undermined Hines’s authority with co-workers and inmates. ER293;ER297. Similarly, a jury could conclude that Richey’s pushing of Hines in the yard undermined her authority because it happened in front of inmates, ER276-78, and that Furman humiliated her and undermined her authority in November 2010 by repeatedly saying, “it’s your bra, it’s your bra” when she failed the scanner, which greatly upset Hines and caused her to cry for an hour. ER309-11;ER344.
A jury could additionally find Geo subjected Hines to pervasive harassment based on her testimony that Hilsden was “always talking dirty,” such as his salty-nuts comment, ER295-96; “a lot of people . . . were talking real dirty . . . it was just normal,” ER325; Lemke’s comment about having sex with his girlfriend, ER325; Furman’s “suck my dick” comment, ER327; and Hines’s knowledge of Hilsden’s harassment of the nurse, ER25. While Hines had a number of harassers, “‘the actionable wrong is the environment, not the individual acts that, taken together, create the environment.’” Kendall v. Nevada, 434 Fed. App’x 610, 613 (9th Cir. 2011) (citation omitted). Given Geo’s failure to formally investigate or discipline Hilsden (despite Hines’ complaint about the spanking); failure to interview Hines about Furman’s “suck my dick” comment (despite her complaint to the Deputy Warden), ER294-95;ER299-300;ER327-28, and the widespread, open-air nature of the harassment, a jury could find Geo created a hostile work environment by making it clear to Hines that enduring sexual harassment was simply part of her job.
Even if the harassment here could be considered a close call, this Court has said that “in close cases” a jury, rather than the court, should resolve the case. Davis, 520 F.3d at 1096. Because a jury could find that a reasonable woman in Hines’s position would have found that this conduct “pollute[d] [her] workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position,” summary judgment should be reversed. Steiner v. Showboat Operating, 25 F.3d 1459, 1463 (9th Cir. 1994); see Davis, 520 F.3d 1095-96 (reversing summary judgment where the plaintiff was denied entry into an office trailer and subjected to numerous derogatory comments about women and the foreman repeatedly referred to his wife as “Astrobitch”).
The Commission respectfully requests reversal of the orders granting summary judgment, including reinstatement of the nineteen dismissed claimants and the claims on behalf of Roach, Wilcox, and Hines, and remand for further proceedings.
I certify that this brief complies with the enlargement of brief size permitted by Ninth Circuit Rule 28-4. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief is 13,951 words, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
/s Anne Noel Occhialino
Anne Noel Occhialino
March 7, 2014
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 7, 2014.
Table of Contents
42 U.S.C. § 2000e-5(a)………………………………………………………..ii........
42 U.S.C. § 2000e-5(b)……………………………………………………….ii
42 U.S.C. § 2000e-5(e)(1)…………………………………………………..iii
42 U.S.C. § 2000e-5(f)(1)…………………………………………………..iii
42 U.S.C. § 2000e-5 (“706”)
(a) The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title [section 703 or 704].
(b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge.
(e)(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.
1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.
 Wilcox is also known as “Frances Torres Fulmer.”
 Tremont has since died.
 EEOC discusses the details of conciliation here but, as explained infra at Section I, submits that Title VII does not provide for judicial review of the sufficiency of EEOC’s informal conciliation efforts. Rather, all that is necessary to determine whether EEOC satisfied the administrative prerequisite to suit under §706 is evidence that EEOC investigated a charge, issued a cause determination, offered to conciliate, and determined that it could not reach an acceptable conciliation agreement.
 While the order refers to “fifteen” claimants, EEOC’s identification of four additional victims means the court’s ruling barred nineteen claimants.
 Geo effectively provided “written consent” by filing its motion for summary judgment and statements of facts detailing what happened during conciliation. R.85 (pp.6-10); ER391 (¶¶51-98) (disclosing conciliation details). EEOC also consented, in this particular case, by responding. R.117.
 Indeed, EEOC has been placed between the proverbial “rock and a hard place” by courts’ varying interpretations of Title VII as, on the one hand, affording employers a “failure to conciliate defense” to which EEOC must respond to preserve its suit, and, on the other hand, by forbidding EEOC to divulge anything about conciliation proceedings. See, e.g., EEOC v. U.S. Steel Corp., No. 10-1284, 2012 WL 1150799 (W.D. Pa. April 5, 2012) (after employer filed a motion to dismiss for EEOC’s purported failure to satisfy its pre-suit requirements, EEOC filed documents showing it conciliated; employer then argued EEOC improperly disclosed confidential documents, asked they be struck, and later filed a motion for attorney’s fees and costs against EEOC).
 This Court has yet to address the issue presented here. In EEOC v. Pierce Packing, 669 F.2d 605, 608 (9th Cir. 2005), this Court stated in passing that EEOC must make “good faith attempts at conciliation.” However, the Pierce Packing Court held that EEOC had made no efforts at conciliation, and so the Court had no occasion to consider EEOC’s efforts (or the reviewability of those efforts), rendering the “good faith” language dicta.
 Compare EEOC v. Swissport Fueling, 916 F. Supp. 2d 1005, 1037-40 (D. Ariz. 2013) (EEOC’s conciliation inadequate even under deferential review because EEOC did not identify class members), with EEOC v. Scolari Warehouse Mkts., 488 F. Supp. 2d 1117, 1129 n.14 (D. Nev. 2007) (conciliation adequate under deferential standard although EEOC did not identify all class members).
 Compare EEOC v. Pac. Maritime Ass’n, 188 F.R.D. 379, 380-81 (D. Or. 1999) (under deferential standard, citing EEOC’s failure to provide calculation to support monetary demand in finding conciliation was without good faith), with Serrano, 699 F.3d at 904-05 (finding under deferential standard that EEOC conciliated in good faith, although it did not identify claimants or their damages). Adding to the inconsistency, some courts applying a heightened standard have even held EEOC need not supply monetary calculations. See EEOC v. Riverview Animal Clinic, 761 F. Supp. 2d 1296, 1302 (N.D. Ala. 2010) (under heightened standard holding that “EEOC can in fact negotiate in good faith even if it does not have an accurate final computation of actual damages”).
 Compare EEOC v. First Midwest Bank, 14 F. Supp. 2d 1028, 1032 (N.D. Ill. 1998) (applying deferential standard and finding agency’s unexplained quadrupling of monetary demand evidenced bad faith), with EEOC v. PBM Graphics, 877 F. Supp. 2d 334, 363 (M.D.N.C. 2012) (refusing under heightened standard to consider agency’s quintupling of monetary demand).
 And then there is the question of EEOC’s method for conciliating. For instance, is an in-person conciliation meeting required? Is an exchange of three written offers enough, or is a fourth required? Can EEOC declare conciliation a failure after three months of effort? Six? A year? These questions underscore the problem of formalizing what Congress intended to be an “informal” process.
 Some courts have found EEOC’s conciliation inadequate, while others have found it adequate. Compare EEOC v. Swissport Fueling, 916 F. Supp. 2d 1005, 1037-44 (D. Ariz. 2013) (conciliation inadequate); EEOC v. La Rana Haw., LLC, 888 F. Supp. 2d 1019, 1045-46 (D. Haw. 2012) (same); EEOC v. Evans Fruit, 872 F. Supp. 2d 1107,114-15 (E.D. Wash. 2012) (same); EEOC v. High Speed Enter., 2010 WL 8367452 (D. Ariz. Sept. 30, 2010) (same); EEOC v. Dillard’s, No. 08-1780, 2011 WL 2784516, at *5-8 (S.D. Cal. July 14, 2011) (EEOC could seek relief for claimants at single store but not nationwide); EEOC v. Grimmway Enter., No. 06-0561, 2007 WL 1725660, at *4-7 (E.D. Cal. June 12, 2007) (same); EEOC v. Consol. Realty, No. 06-00681, 2007 WL 1452967, at *2-3 (D. Nev. May 17, 2007) (conciliation inadequate), with EEOC v. Global Horizons, 940 F. Supp. 2d 1316, 1326 (E.D. Wash. 2013) (conciliation adequate); EEOC v. Wedco, No. 12-00523, 2013 WL 1104754, at *2-4 (D. Nev. Mar. 12, 2013) (same); EEOC v. Alia, 842 F. Supp. 2d 1243, 1256-57 (E.D. Cal. 2012) (same); EEOC v. California Psychiatric Transitions, 725 F. Supp. 2d 1100, 1111-18 (E.D. Cal. 2010) (same); EEOC v. Timeless Investments, 734 F. Supp. 2d 1035, 1052-54 (E.D. Cal. 2010) (same); EEOC v. California Psychiatric Transitions, 644 F. Supp. 2d 1249, 1273 (E.D. Cal. 2009) (same); EEOC v. Hometown Buffet, 481 F. Supp. 2d 1110, 1114-15 (S.D. Cal. 2007) (same); EEOC v. Scolari Warehouse Markets, 488 F. Supp. 2d 1117, 1128-9 (D. Nev. 2007) (same); EEOC v. Gold River Operating, No. 04-01349, 2007 WL 983853, at *2-5 (D. Nev. Mar. 30, 2007).
 While American National Bank refers to a “pattern or practice” of discrimination, the opinion cites §706 as authority for EEOC’s suit. 652 F.2d at 1184-85; see also American National, 1979 WL 25, at *1 (E.D. Va. 1979) (citing §706 as authority for EEOC’s suit).
 EEOC has argued more broadly that this provision, which applies to a private party filing a charge, does not apply to EEOC. See, e.g., Sterling Jewelers, No. 08-706, 2010 WL 86376 (W.D.N.Y. Jan. 6, 2010) (holding 300 day limit inapplicable to EEOC suits); see EEOC v. Waffle House, 534 U.S. at 279, 297 (2003) (“We have recognized several situations in which the EEOC does not stand in the employee’s shoes.”). This Court need not decide this issue because the claimants experienced an act of harassment within 300 days of the charge.
 EEOC does not appeal the dismissal of the retaliation claim for Hines on the merits (which the court also found untimely), but EEOC appeals the timeliness ruling because it impacts other claimants.