No. 10-2629 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ MIRNA E. SERRANO, Plaintiff, and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CINTAS CORPORATION, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Eastern District of Michigan, No. 04-40132 The Honorable Sean F. Cox ____________________________________________ OPENING BRIEF OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ P. DAVID LOPEZ General Counsel U.S. EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE JENNIFER S. GOLDSTEIN Washington, DC 20507 ERIC A. HARRINGTON (202) 663-4733 Attorneys Jennifer.goldstein@eeoc.gov ORAL ARGUMENT REQUESTED TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statement in Support of Oral Argument . . . . . . . . . . . . . . . . . . . . . 1 Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statistical evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Evidence of a "male only" culture . . . . . . . . . . . . . . . . . . . . . . . .10 Investigation and Conciliation . . . . . . . . . . . . . . . . . . . . . 14 Litigation History . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Claimants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Leila (Houston) Vitale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Patricia Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Christine Colfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Gayle Bradstrom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Kari Denby Kremhelmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Susan Majewski Harrington . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Robin Leach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Diana Raby . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Lori Schelske . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Gina Comiska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Tracy Gerke Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Tanya Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Susan Barber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Discovery Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Summary Judgment Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 I. EEOC may use the Teamsters method of proof for a claim brought under §706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 II. Although moot if the Court agrees EEOC can proceed under §706, the district court abused its discretion by denying EEOC leave to amend its complaint to invoke §707. . . . . . . . . . . . . . . . . . . . . . . . . . .49 III. EEOC satisfied all the administrative prerequisites to filing suit by investigating and conciliating its claim . . . . . . . . . . . . . . . . . . . . 56 IV. The district court erred in granting summary judgment to Cintas on EEOC's claim that Cintas discriminated against 13 individual women . . . . . . 65 A. The district court erred in holding that EEOC did not establish a prima facie case for eight claimants, based on evidence Cintas acquired years after the hiring decisions that could not have motivated those decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 B. The district court erred in according great significance to Cintas' after-the-fact explanations where no officials remember a claimant, nor do any contemporaneous records explain the claimants' rejections . . . . . . 72 C. The district court erred by failing to accord EEOC's statistical evidence, evidence of comments by Cintas officials and applicants evincing a "male-only" mindset, and comparative evidence any weight even though that evidence was probative of pretext. . . . . . . . . . . . . . . .74 1. Statistical evidence was probative of pretext. . . . . . . . . . . . . . . . .74 2. Anecdotal evidence evincing a "male-only" culture was probative of pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 3. Comparative evidence indicating Cintas rejected highly-qualified female applicants in favor of less-qualified male applicants was probative of pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 V. The District Court abused its discretion by limiting EEOC's discovery. . . 88 A. The magistrate abused his discretion by precluding the deposition of Scott Farmer, because he possessed relevant information and Cintas failed to show his deposition would pose an undue burden . . . . . . . . .88 B. The district court abused its discretion when it refused to compel Cintas to produce unredacted applications. . . . . . . . . . . . . . . . . . . . 95 C. The district court abused its discretion by denying EEOC's motion to extend discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99 Certificate of Compliance Certificate of Service Designation of Relevant District Court Documents Not Under Seal TABLE OF AUTHORITIES CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . . . . . . . . . . . . . .57 Audi AG v. D'Amato, 469 F.3d 534 (6th Cir. 2006) . . . . . . . . . . . . . . . 88 Bacon v. Honda of Am., 370 F.3d 565, 575 (6th Cir. 2004) . . 36, 44, 55, 65, 91, 96 Barnes v. GeneralCorp Inc., 896 F.2d 1457 (6th Cir. 1990) . . . . . . . . . . . .75 Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382 (6th Cir. 1993) . . . 75 Bell v. EPA, 232 F.3d 546 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . 75 Bender v. Hecht's Dep't Stores, 455 F.3d 612 (6th Cir. 2006) . . . . . . 75, 84, 85 Bowdish v. Continental Accessories, Inc., 1992 WL 133022 (6th Cir. 1992). . . 76 Brenneman v. MedCentral Health Sys., 366 F.3d 412 (6th Cir. 2004) . . . . . . 69 Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, 583 F.3d 948 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 89 Bush v. Dictaphone Corp., 161 F.3d 363 (6th Cir. 1999) . . . . . . . . . . . 91, 93 Cavin v. Honda of Am., 346 F.3d 713 (6th Cir. 2003) . . . . . . . . . . . . . . .70 Chen v. Dow Chem. Co., 580 F.3d 394 (6th Cir. 2009) . . . . . . . . . . . . . . 87 Cicero v. Borg-Warner Automotive, 280 F.3d 579 (6th Cir. 2002) . . . . . . . . . 76 Davis v. Hammonds, 103 F.App'x 51 (8th Cir. 2004) . . . . . . . . . . . . . . . 78 Diaz v. AT&T, 752 F.2d 1356 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . 77 Duggins v. Steak N Shake, 195 F.3d 828 (6th Cir. 1999) . . . . . . . . . . . .51-54 EEOC v. Am. Nat'l Bank, 652 F.2d 1176 (4th Cir. 1981). . . . . . . . . . . . 63 EEOC v. Bruno's Rest., 13 F.3d 285 (9th Cir. 1993). . . . . . . . . . . . . . . 63 EEOC v. Calif. Psychiatric Transitions, 644 F.Supp.2d 1249 (E.D. Cal. 2009). . . 62 EEOC v. Cone Solvents, Inc., 2006 WL 1083406 (M.D. Tenn. 2006). . . . . . . . . 62 EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa 2009). . . . . . 64 EEOC v. David Lerner Assocs., 2005 WL 2850080 (D. Conn. 2005). . . . . . . . . 62 EEOC v. D.H. Holmes Co., 556 F.2d 787 (1977). . . . . . . . . . . . . . . . . . 48 EEOC v. Dial Corp., 156 F.Supp.2d 926 (N.D. Ill. 2001) . . . . . . . . . . . 63, 65 EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1976) . . . . . . . . . . . . 56-57 EEOC v. Gen. Tel. Co. of the Nw., 885 F.2d 575 (9th Cir. 1989) . . . . . . . . . 38 EEOC v. Gen. Tel. Co. of the Nw., 1977 WL 15420 (W.D. Wash. 1977) . . . . . . 47 EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963 (7th Cir. 1996) . . . . . . . . .63 EEOC v. Int'l Profit Assocs., 2007 WL 844555 (N.D. Ill. 2007). . . . . . . . . 39 EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . 34, 57, 58-63 EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir. 1981) . . . . . . . . . . . 65 EEOC v. Mike Fink Corp., 1998 WL 34078445 (M.D. Tenn. 1998) . . . . . . . . . 62 EEOC v. Mitsubishi Motors Mfg., 990 F.Supp. 1059 (C.D. Ill. 1999) . . . . . . . .46 EEOC v. Monarch Machine Tool Co., 737 F.2d 1444 (6th Cir. 1980). .33, 38, 40-44, 49 EEOC v. Paramount Staffing, 601 F.Supp. 2d 986 (W.D. Tenn. 2009) . . . . . . 62 EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989) . . . . . . . . . . . . 63 EEOC v. Scolari Warehouse Markets, 488 F.Supp.2d 1117 (D. Nev. 2007) . . . . . . 39 EEOC v. Waffle House, 534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . . 48 Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998) . 82, 83, 90 FTC v. Bisaro, __ F.Supp.2d __, 2010 WL 4910266 (D.D.C. Dec. 2, 2010) . . . . . .92 Farber v. Massillon Bd. of Educ., 917 F.2d 1391 (6th Cir. 1990) . . . . . . . . .73 Foman v. Davis, 371 U.S. 178 (1962) . . . . . . . . . . . . . . . . . . . . . . 50 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) . . . . . . . . . 36-37, 38, 66 Gamble v. Birmingham S. R.R., 514 F.2d 678 (5th Cir. 1975) . . . . . . . . . 77 Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir. 1987) . . . . 99 Gauthier v. Union Pac. R.R., 2008 WL 2467016 (E.D. Tex. June 18, 2008) . . . 92 Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . 33, 44, 47-49, 61 HCP Laguna Creek v. Sunrise Sr. Living Mgmt., 2010 WL 890874 (M.D. Tenn. 2010) . 94 Holloway v. Brush, 220 F.3d 767 (6th Cir. 2000) (en banc) . . . . . . . . . . . .66 Hopson v. DaimlerChrysler Corp., 306 F.3d 427 (6th Cir. 2002) . . . . . . . . . 87 Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977) . . .18, 36-38, 40, 55, 65, 66 Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982) . . . . . . . . . . . . . . 97 Kline v. TVA, 128 F.3d 337 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . 87 Lewelling v. Farmers Ins. of Columbus, 879 F.2d 212 (6th Cir. 1989) . . . . . . 91 Lewis v. ACB Business Servs., 135 F.3d 389 (6th Cir. 1998) . . . . . . . . . 89 Long v. City of Saginaw, 911 F.2d 1192 (6th Cir. 1990) . . . . . . . . . . . . 80 Lowery v. Circuit City Stores, 158 F.3d 742 (4th Cir. 1998) . . . . . . . . . . .46 Lynn v. Regents of Univ. of Calif., 656 F.2d 1337 (9th Cir. 1981) . . . . . . 76 Marisco v. Sears Holding Corp., 370 F.App'x 658 (6th Cir. 2010) . . . . . . . . .90 McClain v. Lufkin Ind., 519 F.3d 264 (5th Cir. 2008) . . . . . . . . . . . . . . 66 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . 32, 37-39, 67, 75, 76 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) . . . . . . 69, 71 McLeod, Alexander, P.C. v. Quarles, 894 F.2d 1482 (5th Cir. 1990) . . . . . . 97 Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986) . . . . . . . . . . . 51, 53 Morse v. McWhorter, 290 F.3d 795 (6th Cir. 2002) . . . . . . . . . . . . 50, 52-53 Nix v. Sword, 11 F.App'x 498 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . 93 Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355 (1977) . . . . . . 56, 57 Oppenheimer Fund v. Sanders, 437 U.S. 340 (1978) . . . . . . . . . . . . . . . 89 Phillips v. Cohen, 400 F.3d 388 (6th Cir. 2005) . . . . . . . . . . . . . . . . .80 Plott v. General Motors Corp., 71 F.3d 1190 (6th Cir. 1995) . . . . . . . . . 98 Quinn-Hunt v. Bennett Enters., 122 F.App'x 205 (6th Cir. 2005) . . . . . . . . . 70 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000) . . . . . . . . . 74, 88 Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987) . . . . . . . . . . . . . . . 76 Risch v. Royal Oak Police Dep't, 581 F.3d 383 (6th Cir. 2009) . . . . . .81, 82, 83 Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979) . . . . . . . . . . . . . . . 93 Scales v. J.C. Bradford & Co., 925 F.2d 901 (6th Cir. 1991) . . . . . . . . . 96 Sims v. Cleland, 813 F.2d 790 (6th Cir. 1987) . . . . . . . . . . . . . . . 75, 76 Six W. Retail v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98 (S.D.N.Y. 2001) . . 93, 94 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . 69, 87 Sweeney v. Bd. of Trs. of Keene State College, 604 F.2d 106 (1st Cir. 1979) . . .78 Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) . . . . . . . . . . . . . .39, 68 Tefft v. Seward, 689 F.2d 637 (6th Cir. 1982) . . . . . . . . . . . . . . . 50, 53 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . 68 Thurman v. Yellow Freight Sys., 90 F.3d 1160 (6th Cir. 1996) . . . . . . . . . 70 Turner v. Novartis Pharms., 2010 WL 5055828 (E.D. La. Dec. 2, 2010) . . . . . . 92 U.S. v. Smith, 73 F.3d 1414 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . 43 Valentine v. Francis, 270 F.3d 1032 (6th Cir. 2001) . . . . . . . . . . . . . . .43 Van Den Eng v. Coleman Co., 2005 WL 3776352 (D. Kan. Oct. 21, 2005) . . . . . . 92 Wade v. Knoxville Utilities Bd., 259 F.3d 452 (6th Cir. 2001) . . . . . . . . 53-54 Wexler v. White's Fine Furn., 317 F.3d 564 (6th Cir. 2003) (en banc). . .67, 69, 84 Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006) . . . . . . . . . 74, 84 STATUTES, RULES and LEGISLATIVE HISTORY 28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. §1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . 1, 3 42 U.S.C. §2000e-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 42 U.S.C. §2000e-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. §2000e-5 (section 706) . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. §2000e-5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 42 U.S.C. §2000e-5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 42 U.S.C. §2000e-5(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 42 U.S.C. §2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . .18, 39, 44-45, 65 42 U.S.C. §2000e-5(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. §2000e-6 (section 707) . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. §2000e-6(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Fed.R.Civ.P. 15(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Fed.R.Civ.P. 26(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Fed.R.Civ.P. 26(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .89, 90, 96 Fed.R.Civ.P. 26(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Fed.R.Civ.P. 30(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Fed.R.App.P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6th Cir. R. 206(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 118 Cong. Rec. 4081 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 118 Cong. Rec. 4082 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 118 Cong. Rec. 4941 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 S. Rep. No. 92-415 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 MISCELLANEOUS Brief of EEOC as Cross-Appellee, EEOC v. Monarch Machine Tool Co., No. 77-3526 (filed March 6, 1978) . . . . . . . . . . . . . . . . . . . . . . . .41 www.firstnamesex.com (visited February 22, 2010) . . . . . . . . . . . . . . . . .7 Statement in Support of Oral Argument This is an unusually large and complicated case alleging sex discrimination by Cintas Corporation in hiring against a class of women, in violation of Title VII, 42 U.S.C. §2000e et seq. The appeal of the Equal Employment Opportunity Commission (EEOC) challenges 19 opinions of the district court and two opinions issued by the magistrate judge - 21 opinions in all. The district court in this case ruled that EEOC may not prove its case under the pattern-or-practice framework when it files suit pursuant to §706, one of Title VII's provisions authorizing EEOC suit. The court ruled that EEOC may not pursue relief on behalf of a class of women unless its actions at the administrative stage conform to a level of specificity that the district court decided was proper. In so ruling, the district court committed significant legal errors when it dismissed binding Sixth Circuit precedent as dicta or otherwise inapplicable. These errors, if not overturned, will harm EEOC's ability to challenge systemic discrimination under Title VII. The court also ignored both Sixth Circuit and Supreme Court precedent in dismissing EEOC's claim that Cintas discriminated against 13 individual women. These opinions - addressing statistical, comparative, and after-acquired evidence - failed to comprehend the evidence's significance in proving intentional discrimination. Because of the importance of these issues, EEOC respectfully requests oral argument. Jurisdictional Statement The district court had jurisdiction pursuant to 28 U.S.C. §1331 and 42 U.S.C. §2000e-5(f)(1), (3). The court issued final judgment on October 18, 2010. R.941.<1> EEOC filed a timely notice of appeal on December 10, 2010. R.1070; see Fed.R.App.P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. §1291. Statement of Issues 1. Whether EEOC may properly use the Teamsters method of proof for a claim brought under §706. 2. Whether the district court abused its discretion when it denied EEOC leave to amend its complaint to invoke §707. 3. Whether EEOC satisfied all the administrative prerequisites to filing suit by investigating and conciliating its claim. 4. Whether the district court erred in granting summary judgment to Cintas on EEOC's claim that Cintas discriminated against 13 individual women. a. Whether the district court erred in holding that EEOC did not establish a prima facie case for eight claimants, based on evidence that Cintas acquired years after the hiring decisions that could not have motivated those decisions. b. Whether the district court erred in according great significance to Cintas' after-the-fact explanations where no officials remember a claimant, nor do any contemporaneous records explain the claimants' rejections. c. Whether the district court erred by failing to accord EEOC's statistical evidence, evidence of comments by Cintas officials and applicants evincing a "male-only" mindset, and comparative evidence any weight even though that evidence was probative of pretext. 5. Whether the district court abused its discretion by precluding the deposition of CEO Scott Farmer, failing to compel Cintas to produce unredacted applications, and denying EEOC's motion to extend discovery. Statement of the Case On May 10, 2004, Mirna Serrano filed a complaint on behalf of herself and a proposed class of women who applied for employment as service sales representatives (SSRs) in Michigan. R.1. The complaint alleged Cintas engaged in gender discrimination in hiring, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. EEOC intervened on December 23, 2005, alleging that Cintas denied employment to "a class of women" by refusing to recruit and hire them as SSRs because of their sex. R.98. EEOC filed an amended complaint on August 20, 2009. R.650. The Serrano/EEOC action was consolidated for pretrial purposes with another pending action against Cintas alleging, inter alia, gender discrimination in hiring. Avalos v. Cintas Corp., No. 06-CV-12311. District court proceedings in the Avalos action terminated; that action is now on appeal under the caption Davis v. Cintas Corp., No. 10-1662 (6th Cir.). Serrano is no longer part of this case: the district court denied class certification on March 31, 2009, R.627, and the court granted Serrano's motion to dismiss her claims with prejudice on September 20, 2010. R.937. Cintas moved for judgment on the pleadings with respect to EEOC's "Pattern or Practice Discrimination Claim" on the ground that EEOC had filed suit under §706 of Title VII, but not §707. R.662. The district court granted the motion on February 9, 2010. R.723. EEOC moved to amend the order to add certification pursuant to 28 U.S.C. §1292(b), R.728, but the district court denied the motion. R.752. Thereafter EEOC moved to amend the complaint to state EEOC was also filing suit under §707. R.765. The court denied that motion on June 2, 2010. R.829 (amended, R.940). After the district court ruled EEOC could not prove its claim using the pattern-or-practice framework, the focus of the case shifted to EEOC's claim on behalf of individual women denied employment. Three discovery issues arose. EEOC moved to compel Cintas to provide unredacted employment applications. R.759. The magistrate denied the motion, R.807, and the district court concurred. R.843, R.938. The court also refused to extend the discovery deadline. R.783. Finally, Cintas moved for a protective order precluding EEOC from taking its CEO's deposition, R.816; the magistrate barred the deposition. R.831. Cintas filed 14 motions for summary judgment - one for each of the 13 claimants identified and one "omnibus" motion addressing administrative prerequisites to EEOC suit. From September 3 to 20, 2010, the district court issued separate orders granting all 14 motions. R.923-R.936. The court issued final judgment on October 18, 2010. R.941. A motion for attorneys' fees, R.943, is pending. Statement of Facts Cintas rents, cleans, and delivers uniforms, mats, and other products to commercial customers from multiple locations in the State of Michigan. A-64-65. Cintas employs SSRs as entry-level employees who "[s]ell and service customers by taking care of all customer needs." A-439. In particular, SSRs drive trucks to sell and deliver clean uniforms and other products to customers, and retrieve dirty items. Cintas views SSRs as "the face of Cintas." A-851. The SSR job description lists the general requirements for the job: communications skills including the ability to "[l]isten[];" interpersonal skills, such as "[a]ttention to [d]etail" and "[r]apport [b]uilding;" the physical ability to lift up to 40 pounds; and possession of a driver's license. A-439-442. SSRs also must possess a high school diploma or GED. A-37 ¶26. Aside from the few basic, objective requirements (driver's license, high school diploma, and a self-described ability to lift 40 pounds), Cintas generally permits each location to hire applicants based upon various criteria the hiring managers think important. R.935 at 4. Those criteria include the types of experiences applicants had, whether they had customer service or sales experience, how many positions they had held and their reasons for leaving, and the ability to work without supervision. A-227 (Dep. at 19). In most Cintas locations, a hiring official would do an initial screen of a candidate's application and resume, and then a brief screening interview conducted either by telephone or, if at a job fair, in person. A-226 (Dep. at 15); A-228 (Dep. at 21). If a candidate advanced, Cintas officials would conduct in-person interviews, "ride- alongs" to allow on-the-job evaluation, and a final interview, generally by the particular location's general manager. A-234 (Dep. at 33). Statistical evidence Regardless of the particular Cintas location in Michigan or the criteria that each Cintas manager subjectively thought especially important, Cintas managers hired men as SSRs in overwhelming numbers over a scrutinized six-and-a-quarter year period. A statistical expert, Dr. Thomas DiPrete<2> , examined Cintas' hiring records of women in Michigan over that period (1999 to the first quarter of 2005). A-632-647. He compared that data to female availability for SSR jobs in local labor markets and to female representation in Cintas' available applicant data. A- 634. DiPrete concluded that the pattern of female underhiring for SSR positions at Cintas was "extreme" from 1999 to 2002, and "extensive" from 2003 to the first quarter of 2005 ("2005-Q1"). A-633. The data revealed that from 1999 to 2002, Cintas hired 268 individuals into SSR positions in Michigan. Of those 268 hires over four years, 262 were men and only 6, or 2%, were female.<3> A-637 T.2; A-639 T.3. DiPrete broke down hiring by Michigan location and found data at each to be similar to the overall statewide data, even though "hiring was done at specific locations, each of which had its own local labor market." A-634, A-640. He reported the following data: Number Number Percentage of SSRs of Female SSRs of Female SSRs Location hired hired hired --------------------+----------+---------------+------------------ Madison Heights 47 0 0% Westland 53 0 0% West Grand Rapids 47 3<4> 6% West Flint 25 0 0% Gaylord 1 0 0% Midland 8 0 0% Battle Creek 10 0 0% NE Detroit 32 0 0% Detroit 28 2 7% Kentwood 1 0 0% Port Huron 2 0 0% Lansing 4 0 0% East Flint 4 1 25% Traverse City 6 0 0% A-639 (extracted from T.3). Numbers improved somewhat in the 2003-2005Q1 period, perhaps in response to a July 2002 EEOC determination that Cintas was discriminating against females as a class (discussed infra), and an ensuing 2003 speech Cintas' CEO gave to all Cintas managers, exhorting them to "put the myth that females cannot be SSRs out of your mind and hire more women SSRs." A-843. In any event, of 159 total hires in Michigan during these two-and-a-quarter years, 11% were female. A-639. DiPrete next considered the availability of women for SSR jobs in Michigan over the relevant time period. He looked at four different measures of availability. First, DiPrete looked at the percent of SSR hires whose previous, or "feeder," job was of a type placing it in the same U.S. Census occupation code as the SSR job (code 913, described as "Driver/Sales Workers and Truck Drivers"). A-634. Only 21% of SSR hires came directly from code 913 jobs, and only 33% had ever held a code 913 job. A-634-635. DiPrete then examined the job categories of all the other feeder jobs, and weighted the categories (92 in all) accordingly based on the number of hires from each. A-38-41. Using the more conservative 33% weighting for code 913, and factoring in geographical data, DiPrete found that the conservative female external availability estimate averaged 27% across all Michigan locations. A-637. DiPrete then looked at three other measures of female availability: actual applications provided by Cintas for the period '99-'05Q1; applications actually considered by hiring officials in '04-'05Q1 (determined by applicant's hire or notation on application); and completed applications in Cintas' newly-adopted, systemized database for the period '05-'06. A-634-635. Those measures were all generally consistent with the 27% availability figure, leading to availability estimates ranging from 22% to 28%. One exception was applications produced from '99-'02, which had 16% female applicants.<5> A-637-638. Finally, DiPrete compared the number of women hired to the various estimates of female availability and found statistical significance in the discrepancy between availability and hiring, regardless of the time period or availability measure used. A-640. Specifically, using the external availability data with the conservative 33% estimate for code 913, DiPrete found underhiring from '99-'02 to be statistically significant at over 10 standard deviations, well over the conventional threshold of 2 standard deviations, and underhiring from '03- '05Q1 to be nearly 5 standard deviations.<6> A-642. Over the entire period, "the probability that these discrepancies would have occurred by chance alone is much less than one in a trillion." A-642. DiPrete then looked at Cintas' actual application data, even though that data likely underestimates female availability because of the deterrence effect (supra n.5). He found underhiring at statistically significant levels of over 6 standard deviations from '99-'02 and 2.9 standard deviations in '03-'05Q1. Over the entire period, "the probability that these discrepancies would have occurred by chance alone is much less than one in a billion." A-642. Evidence of a "male only" culture DiPrete analyzed the hard data and largely did not attempt to explain why Cintas managers hired so few women. Several managers helped to explain the "why," however: namely, that a "male-only" culture for SSR jobs existed within Cintas. For example, Mark Gerhard, a Service Manager who did initial application screening at NE Detroit Macomb 354 in 2001, stated that Cintas reminded him of the "old Marine Corps" where "the general overall impression was this is man's work kind of thing." A-469 (Dep. at 72). He characterized that impression as "just natural prejudice." A-470 (Dep. at 73). Gerhard added there was a "pretty good" chance he heard someone say Cintas doesn't fill SSR jobs with women "because of the cultural mindset of that job" that "it was more thought of as a boy's club." A- 470 (Dep. at 74). As Gerhard put it, it was "one of those unspoken thoughts I'm sure ... went through a lot of SSRs' minds." Id. Another manager, Roger Farver, echoed Gerhard's comments. Farver worked at Madison Heights and then Midland from 1991-2004, rising from SSR to be Service Manager. A-460 (Dep. at 7-8). He acknowledged hearing people say the SSR position is "a man's job," and he added that "to be truthful ...I probably thought that way." A-461(Dep. at 22). Farver said that he never interviewed a woman to be SSR while he worked at Madison Heights. Id. Women's experiences as SSR applicants reflected the existence of this mindset. According to Patricia Detloff, who applied unsuccessfully to NE Detroit (Macomb) in 2001, her male interviewer told her that "they hire men to do the driving and that there are no women drivers... [and] that I would be better off sewing in the plant." A-849. Another unsuccessful 2001 NE Detroit applicant, Susan Jeffery, reported being told by a male SSR "that Cintas does not really hire women because of the heavy lifting." A-852. Karen Nierzwick, who applied to NE Detroit in 2002, was steered to a position in the laundry room, which she did not want. A-505 (Dep. at 31); see also A-853 (Deborah Agnew told by NE Detroit female front desk employee that it was unlikely she would get a call "because she had not seen them hire women"); A-484 (Dep. at 83) (in 2000, NE Detroit receptionist told applicant Karen Johnson "Don't get your hopes up too high" because "they ... don't hire females;" "they['re] kind of male chauvinistic around here"). Women who applied at other Michigan locations had similar experiences. At Westland, when claimant Susan Barber went to obtain an SSR application in 2002, the woman who gave it to her said "good luck, they only hire women for the office." A-444 (Dep. at 26); see also A-493-494 (Dep. at 44-45) (male driver or manager told 1999 Westland applicant Yvonne LaChance "they don't hire women"). At West Grand Rapids, 2002 applicant Marcee Kuzniak spoke to a male Cintas employee who told her, "They normally hire the men for the driving jobs," while working in the factory is "what we usually have the women do." A-490 (Dep. at 49); see also A-487 (Dep. at 20) (Cintas employee told 2002 West Grand Rapids applicant Shari Kocsis that SSR "wasn't really a job that they had women doing" and gave her a tour of the plant, not of the trucks). Sheryl McMillan, a 2000 West Flint applicant, reported being told "they don't really hire women for the delivery." A-497 (Dep. at 14). Finally, four women who applied at Madison Heights reported comments indicating a belief that women were unsuitable for the SSR position. For example, after an interview for the SSR position at a job fair in 2000, her interviewer told claimant Susan Harrington "if anything clerical came up he'd call me." A-475 (Dep. at 19). Claimant Gayle Bradstrom's interviewer kept stressing that "it was not a glamorous job at all." A-453 (Dep. at 51). Jennifer Burgess' interviewer questioned whether she was physically able to do the work, despite her insistence she was, and told her "he was trying to find a man to fill the position." A-458 (Dep. at 29). And Kristen Foley's interviewer, who she believes was Human Resources Manager Holly Woonton, told her "the SSR position was for guys; that the lifting was too heavy and that it was more of a masculine job." A-534 ¶¶3-4. The interviewer told her to apply for an inside sales job, a job in which Foley had no interest. A-534 ¶6. That Cintas had a problem with its "male-only" culture was recognized at the company's highest levels. In a 2003 speech at an annual management meeting, Cintas' President and CEO Scott Farmer admonished Cintas' managers to "put the myth that females cannot be SSRs out of your mind and hire more women SSRs." A-32.<7> Farmer highlighted how one location, in San Leandro (California), eschewed gender stereotypes, having "six of the location's 28 routes ... run by female SSR's." Farmer emphasized that those "female SSR's consistently perform in the top 20% in all areas" because "they understand how to take care of their customers." A-32<8>; see also A-33 (female SSRs "are absolutely dependable day in and day out" and "there is no evidence of a lack of ability to do the work"). Even after that speech, Cintas' corporate officials were slow to act to change its culture, and the numbers of female hires in Michigan accordingly rose only very slowly. A-633 ("extensive" underhiring of women from 2003-2005Q1). For example, Gregory Matesa, who worked as a Service Manager at West Grand Rapids, stated that in his 7 years with Cintas he never heard of Farmer's exhortation to expunge the myth that women cannot be SSRs. A-846 (Dep. at 14). As late as mid-2004, an e-mail from a human resource official (from outside Michigan) asked, "Why can't we have a picture of a female SSR on the Cintas.com website? All our pictures are of men..." A-1. Investigation and Conciliation The starting point for this action was 1999, when Mirna Serrano applied to Cintas but was not hired. Serrano filed an EEOC charge in April 2000, alleging she applied "numerous times" to Cintas; Cintas did not hire her because she was a woman; and "[t]here are no female Drivers at either of their locations." R.48-2 at 2. EEOC requested information from Cintas about its hiring practices, R.48-2 at 1; R.48-3, and Cintas responded on June 21, 2000. R.48-5. Cintas indicated it hired 18 individuals for the SSR position since July 1999. Id. at 7. All 18 hires were men. Id. The list of 18 men hired represented hiring data from one Cintas location, Location 300, though Cintas did not so indicate on the list. Id.; R.47 at 7 (Def. Mem. at 3). After receiving this information, EEOC requested more comprehensive data from Cintas about the composition of its SSR workforce, including all applications submitted for the SSR position from January 1, 1999, to the present. R.48-4. On August 17, 2000, Cintas provided some of the information requested, but only for Location 300, and only beginning August 1, 1999, explaining it had discarded earlier applications. R.48-6. On January 23, 2001, EEOC made explicit that it was expanding its investigation in a letter requesting information about Cintas' SSR hiring at all its Michigan facilities from 1998 to the present. R.48-8 at 3. Cintas refused to produce the information and so, on March 21, 2001, EEOC issued a subpoena for the information, specifically requesting data from "all of [Cintas'] facilities in the State of Michigan." R.48-7 at 3. Cintas petitioned EEOC to revoke or modify the subpoena, arguing inter alia that it should not have to supply information beyond the one facility at which Serrano applied. R.48-8. On April 25, 2001, EEOC largely denied Cintas' petition. The EEOC Determination noted that the information received indicated a lack of female hires at one facility, thus leading to questions about Cintas' hiring practices at other facilities, and about other women potentially affected by those practices. R.48-9 at 4. EEOC did modify the subpoena to clarify the information requested as limited to Cintas' Michigan facilities. Id. at 5-6. In early July 2001, Cintas began producing the documents EEOC sought. R.48-10. The materials consisted of approximately 13,000 pages of documents. Id. In the ensuing months, as EEOC reviewed the documents, it requested additional information. R.48-11. On July 3, 2002, EEOC issued a Determination letter. R.876-6. The letter stated there was reasonable cause to believe Serrano's "allegations are true" and, in addition, that Cintas "discriminated against females as a class by failing to hire them as Route Sales Drivers/Service Sales Representatives." R.876-6 at 1 (emphasis added). EEOC invited Cintas to engage in conciliation, and attached a conciliation agreement "containing the types of relief necessary to remedy the violation of the statute." Id. The attached document stated that "there is reasonable cause to believe that [Cintas] discriminated against females as a class." R.876-7 at 1 (emphasis added). In the relief section, EEOC proposed that Cintas "offer employment to the women listed below and to other similarly situated qualified female applicants who sought employment with [Cintas]." Id. at 5 (Draft Agr. at 3) (emphasis added). The list contained the names of 112 women who had applied at two facilities in Michigan. Id. at 5-6 (Draft Agr. at 3-4). EEOC also proposed that Cintas pay back wages to the women listed and "to other similarly situated females who sought employment with [Cintas]." Id. at 6 (Draft Agr. at 4). The list contained the names of six women that EEOC subsequently identified during litigation (Gina Comiska, Tracy Gerke, Tanya Thompson, Susan Majewski (Harrington), Kari Denby (Kremhelmer), and Gayle Bradstrom (misspelled in the document as "Gene Bradstram")). Id. at 5-6 (Draft Agr. at 3-4). As Cintas acknowledged, the 112 women listed were only "part of Ms. Serrano's 'class.'" R.836 at 10 n.2 (Omnibus Mot. at 4 n.2). Thereafter, during conciliation, EEOC continued to seek information from Cintas after it learned, in the Fall of 2002, that Cintas had not provided all applications from various Michigan locations. R49-2 at 2; R.48-14; R.49-2; R.836-5 at 18 (Sankovich Dep. at 117-19). In response to an EEOC request for additional information about five Michigan facilities and clarification of figures relating to 16 Michigan facilities, Cintas noted in a November 2002 letter that EEOC had issued a reasonable cause determination "that Cintas discriminated on the basis of gender with respect to SSR hiring concerning Charging Party and females as a class." R.49-2 at 1 (emphasis added). Cintas expressed reluctance to provide the additional information, stating that EEOC had already issued a conciliation agreement "which identifies the individuals for whom it seeks relief." Id. EEOC did not agree with that statement, noting in a February 2003 letter that the determination letter contains broad language, and reiterating EEOC's need for the requested information. R.49-3. In March 2003, Cintas began submitting additional information and, over the course of the next 14 months, provided boxes of documents with additional information about its SSR hiring. R.836-5 at 5 (Sankovich Dep. at 21-23). With the additional material, EEOC was able to make a written conciliation proposal, including suggested hiring rates in order to get to the level of female SSR employment that EEOC believed appropriate, and other relief. R.876-10 at 6 (Angiona Dep. at 235). Cintas never made a counter-proposal. R.876-11 at 4-5 (Morelli Dep. at 213-14). On April 14, 2005, EEOC issued a letter stating that "efforts to conciliate this charge ... have been unsuccessful," and that "further conciliation efforts would be futile or non-productive." R.876-8. Litigation History EEOC filed a complaint-in-intervention on December 23, 2005, alleging unlawful sex discrimination and indicating the complaint was filed pursuant to §§705(g)(6) and 706(f)(1), (3) of Title VII, 42 U.S.C. §§2000e-4(g)(6) and 2000e- 5(f)(1), (3). R.98. On August 10, 2009, the district court conducted a scheduling conference with EEOC, Cintas, and the private Serrano plaintiffs where the court and parties discussed bifurcation of EEOC's case pursuant to International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The court issued a scheduling order the next day, August 11, 2009, setting out the schedule for, inter alia, discovery and dispositive motions. R.646. EEOC's intent to pursue its claim under the Teamsters model created some lingering issues, however, and so that same day, the court issued an additional order setting out a schedule for briefs on the timing of the private (Serrano) plaintiffs' action vis-à-vis EEOC's action. R.647. The court indicated in its order that it had already "set a scheduling order for [EEOC's] 'pattern or practice' action against the Defendant." R.647 at 1; see also id. (court questioned whether private plaintiffs' case "should only proceed after the EEOC's 'pattern or practice' action had been adjudicated," as the plaintiffs wished, or whether it should proceed contemporaneously). On August 21, 2009, EEOC filed a brief to discuss the scheduling of the private plaintiffs' case. R.651. EEOC's brief elaborated on the respective burdens of proof in "an EEOC pattern or practice case" under the Teamsters, bifurcated-trial model. R.651 at 2-3. On October 21, 2009, EEOC moved to clarify the bifurcated nature of the case, in particular to specify the issues to be tried in each stage, and to specify that discovery on individual class members be undertaken only after a systemic discrimination finding. R.660 at 2-3 (Mot. at 2-3). Also on October 21, Cintas moved for judgment on the pleadings with respect to EEOC's "Pattern or Practice Discrimination Claim." R.662. Cintas argued that EEOC can only pursue a claim alleging a pattern or practice of discrimination under §707 of Title VII. Because EEOC filed its discrimination claim under §706, Cintas contended, it cannot invoke the Teamsters, bifurcated-trial model for proving hiring discrimination. Id. EEOC responded that it has long been settled that §706 provides ample authority for EEOC to pursue a claim alleging a pattern or practice of discrimination. R.664. In an opinion issued February 9, 2010, the district court granted Cintas' motion, holding that EEOC may not prove its claim under the pattern or practice framework set out in Teamsters when EEOC has brought suit pursuant to §706. R.723. One week later, on February 16, 2010, EEOC moved to certify the §706 issue for interlocutory review. R.728. The district court denied EEOC's motion on March 12, 2010. R.752. Only 11 days later, on March 23, 2010, EEOC moved to amend its complaint to specify that EEOC was instituting this action pursuant to §707. R.765. Although the district court acknowledged authority that a court should give leave to amend a complaint freely to ensure cases are tried on their merits, not on the technicalities of pleadings, it nonetheless denied the motion on June 2, 2010. R.829 at 5, 13 (amended on October 18, 2010, R.940). Shifting the focus of its case from the pattern or practice of gender discrimination in SSR hiring to individual instances of such discrimination, EEOC focused on three sources of evidence for its claim that Cintas had discriminated: (1) statistical evidence showing "extreme" underhiring of women for SSR positions in Michigan; (2) evidence of comments and statements from Cintas hiring officials, the company president, and female applicants revealing the pervasive attitude that the SSR position was a job for men only; and (3) comparative evidence showing that 13 female applicants possessed qualifications superior to the men Cintas ultimately hired. Claimants The 13 women applied to be SSRs at various Michigan locations between August 1999 and April 2004. The women had a wide range of experiences. Several had worked in comparable route sales job, some had driven trucks, others worked as newspaper or wholesale flower deliverers. Some women had driven airport shuttle vans for passengers and their luggage, others worked in sales, drove school buses, performed accounting work, or had risen to become an industrial supply company's regional operations supervisor. Most had resumes that showed stable work histories. Whatever the women's experience, though, Cintas did not hire them, nor did they generally even give them a screening interview, unless a Cintas official happened to conduct an interview as a matter of course at a job fair. There are no contemporaneous records of why Cintas declined to consider the female applicants, nor does any Cintas official acknowledge remembering any details about the women or their applications. Comparing the rejected women's applications to those of the men Cintas chose to hire, however, raises an inference that gender bias played a role in the uniform rejection of the female applicants. Two of the women applied to Cintas' NE Detroit location, a location that hired 32 men and zero women from 1999-2002. A-639. Leila (Houston) Vitale applied twice, once in November 2001 and again in May 2002. A-567-572. Vitale possessed a commercial driver's license, worked for eight years as a school bus driver, and then for over six years as a route sales representative for Schwan's, a frozen food company. Id. Vitale also worked as a route sales representative for Frito Lay and had additional customer service and management experience as a shift manager for McDonald's. Id. Vitale did not get an interview. A-341 (Dep. at 11); A-342 (Dep. at 17). Instead, in 2001, Cintas hired Bryan Hallock, whose only experience was teaching "all forms of combat" in the Marines and who lacked customer service or sales experience, A-579-580, and Matthew Mullen, whose only prior experience working as a "surface grinder" at a machine company ended when he was laid off. A-583-584. Mullen likewise lacked any customer service or sales experience. Id. Neither listed experience driving trucks or making deliveries. Id.; A-579-580. Mark Gerhard, a Cintas official who screened applications for Cintas (but did not screen Vitale's), later reviewed Vitale's application. Gerhard commented "this Schwan's thing stands out.... That's huge for sales. This individual is there for almost six years, so that proves to me this person can absolutely sell and remain successful. Schwan's wouldn't keep anybody around for six years if they couldn't sell." A-466 (Dep. at 54). When asked whether Gerhard would bring in Vitale or Mullen for an interview, Gerhard replied, "There is no question in my mind it would be [Vitale]" because "overall just her sales experience alone would put her over the top over this guy because he doesn't have it." A-467 (Dep. at 61-62). David Perun, the location's general manager at the time of Vitale's application, agreed when shown her application at his deposition that she had had customer service experience while at Schwan's and McDonald's, and he summarized: "This is a good resume, and I could see why she would be advanced." A-577 (Dep. at 109). Vitale, of course, was not advanced in 2001, nor did she advance in 2002. In 2002, Cintas instead interviewed and hired Steve Nicosia, who had experience in retail sales but not as a route driver, and Michael O'Keefe, who likewise lacked route sales experience. A-585-590; A-591-592. Gerhard, comparing the applications of Vitale and Nicosia, deemed Vitale's the stronger because of her "proven sales experience." A-467 (Dep. at 62). She nonetheless was not interviewed or hired. Patricia Washington also applied unsuccessfully to Cintas' NE Detroit location, in September 2001. A-596 (Dep. at 13); A-598 (Dep. at 22). Her experience included time as a route driver for Schwan's, which Perun admitted compared "favorabl[y]" to the SSR position. A-575 (Dep. at 103). Washington had worked for trucking companies as a driver, a physically demanding job, and had a commercial driver's license. A-593; A-596 (Dep. at 17-18); A-601 (Dep. at 34); A-607 (Dep. at 159); A-608 (Dep. at 162). Prior to those jobs, Washington worked for 11 years as a shift leader for Emhart Fastening company. A-593. Cintas did not consider Washington for a position, but instead hired David Lowe, whose experience consisted of 41/2 years maintenance work in the Marines and four months as a security officer, and Robert Koss, who previously worked as a gift shop owner and before that as a financial services consultant. A-613-615; A-610- 612. Neither had driving or route sales experience. Id. Four women applied to Cintas' Madison Heights location, which hired 47 men and zero women between 1999-2002. A-639. Christine Colfer applied in June 2002 at an open house. A-52-53; A-389 (Dep. at 20); A-391 (Dep. at 28). Colfer's application listed her two year-long route sales experience for Kar Nuts, a physical job requiring loading a truck, as well as selling and providing customer service. A-52-53. The application listed her subsequent employment for six years as a crew supervisor for a pool cleaning company, a job demanding dirty, physical labor. Id. Indeed, when asked at her deposition whether she could tolerate handling maggot-infested uniforms for Cintas, she replied that maggots were "nothing" compared to handling "dead raccoons floating and they've been there for all winter." A-401 (Dep. at 139). Colfer did not advance in the hiring process beyond the open house interview. A-389 (Dep. at 20); A-391 (Dep. at 28). Cintas instead hired Jeremy Dantzer, who was working toward a degree in Sports Management and Communication, whose only sales experience was in retail, and whose longest job tenure was 14 months. A-408-410. Gehan Haridy, who served as Cintas' human resources manager at Madison Heights and whose handwriting was on Colfer's application, compared the applications of Colfer and Dantzer during her deposition. When asked which one was better qualified for the SSR job, Haridy responded: "I would say Christine Colfer on paper has route sales. [Dantzer] has less work experience. So I would say [Colfer] on paper has more work experience, yes." A-866 (Dep. at 53-54). Cintas also hired Michael Wright, who worked as a carpenter for four years and then four months in customer service at a cabinet hardware company. A-411-413. Neither Dantzer nor Wright had route sales experience, but both were hired instead of Colfer. A-408-410; A-411-413. Gayle Bradstrom applied to Cintas' Madison Heights location in June 2001. A-219-221. Bradstrom most recently had worked as a route driver, delivering and selling bundles of newspaper, and prior to that job worked for 21 years as a route driver for Bank One, delivering supplies by van to branches. Id. Cintas did not interview her, A-203 (Dep. at 30-31), and instead hired Cory Dral - who had a moving violation for following too closely, had four jobs over the last four years, and who had one year of route work as a pest control technician - and Curtis Rybski, who had worked for one year as a waiter at a country club, for five years in an undisclosed job at "The Brewery," and for four months in a piping supply company. A-356-357; A-354-355. Human resources official Haridy acknowledged that "yes, she has more experience [than Dral or Rybski] in terms of an actual route driver position." A-860 (Dep. at 49). Haridy also stated that she could see nothing about Bradstrom's application that would remove her from consideration for an SSR position.<9> A-859 (Dep. at 47). Cintas nonetheless did not interview, or hire, Bradstrom. Kari Denby Kremhelmer applied to Cintas' Madison Heights location in January 2001. A-268-269. Kremhelmer's application indicated she had worked most recently as a delivery driver for a wholesale flower company for one year, and for the preceding 21/2 years as a driver delivering radios to car dealerships. Id. Cintas did not hire her, but instead hired David Cunningham, who had far less experience than Kremhelmer. Cunningham worked as a pizza dough maker for 31/2 years, was a supply manager in the Marines for four years, and then returned to the pizza restaurant, delivering pizza for four months, and then delivered newspapers for three months. A-386-387. Cunningham also reported a speeding ticket in the last year, id., while Kremhelmer had a clean driving record. A-268. Susan Majewski Harrington applied at Madison Heights in September 2000 and was rejected. A-364 (Dep. at 31-32); A-365 (Dep. at 34). Harrington had considerable customer service experience, working as a customer service representative for Fidelity Investments for two years, as an automotive analyst for General Motors, and then a product management team coordinator, also for General Motors, for four years. A-117-120. Cintas instead hired Antwan Price, whose only experience was managing a movie theater, A-381-382; Ryan Hicks, who had been a "mover helper" for four months and had worked at Bob Evans restaurant washing dishes and bussing tables for the preceding three years, A-379- 380; and Gregg Mertens, whose application did not respond to the questions asking whether he had a driver's license or any moving violations. A-383-385. In April 2004, Robin Leach applied for an SSR position at the Lansing location, where Cintas hired 2 women and 15 men between 1999-2005Q1. A-639. Leach had 18 years experience in sales and customer service, including 10 years experience servicing a business sales territory for Pillsbury and General Mills. A- 414-417. Leach recently had won a sales award for her work. Id. She also had sales managerial experience at a department store. Jason Muck also applied in the same time period, though his application indicated he was applying for "Data Entry Office Sales Management." A-431-432. Muck had worked in sales in several retail settings: at his father's TV and appliance store, where he also did some appliance service; then for 21/2 years at a furniture store; and for 9 months at a hardware chain as a "manager trainee/estimator/designer." Id. Cintas did not interview Leach or otherwise contact her. A-426 (Dep. at 57-58). Instead it interviewed and hired Muck. In April 2002, Diana Raby applied at West Flint, a location that hired 25 men and zero women as SSRs between 1999-2002. A-639. Raby possessed a commercial driver's license, and had been working for the last six years as a delivery driver for an auto parts warehouse delivering parts to business customers and, at times, assisting with sales. A-506-509. The auto parts position required her to lift packages that were "long and heavy," weighing up to 40 pounds. A-529 (Dep. at 155-56). Prior to that job, she had worked as a delivery driver for another company for two years, and for four years as a professional truck driver. A-506- 509. Raby telephoned Cintas several times and stopped by the location once after she applied, but Cintas never interviewed her. A-515 (Dep. at 37-40). Instead Cintas promoted a man for one SSR position and hired William Hill for another. A-532-533. Hill had been an assembly line worker for four months, a material handler at a molding solutions company for three years, a counter at a casino, and an assistant manager at a Dollar General store. Id. He lacked outdoor or delivery experience, and had very limited customer service experience, id., but Cintas elected to hire Hill without offering Raby an interview. A-515 (Dep. at 37-40). Lori Schelske applied in July 2002 to West Grand Rapids, where Cintas officials made 47 hires between 1999-2002, only one (or three, see n.3) of whom was female. A-639. Schelske started as a store cashier for WESCO Inc., was promoted to be assistant store manager, then store manager for six years, and finally to be regional operations supervisor for another six years, responsible for store quality. A-85-88. Schelske applied in response to a monster.com posting, A- 617 (Dep. at 10-11), but no Cintas hiring official contacted her for an interview, and it was unclear who Cintas hired instead. A-618 (Dep. at 21). No one could remember Schleske's application, but a Cintas official later testified in his deposition that the salary requirement Schelske listed, $55,000, was higher than the salary for entry-level SSRs, who generally earned between $30,000-35,000. A-82- 83 ¶¶7-8. Schelske stated in her deposition that she preferred a management job but understood that "[w]hen you start at [a] business, you really need to learn things from the bottom and move up." A-617 (Dep. at 11). Additionally an EEOC review of applications from across Cintas locations revealed that Cintas hired men whose prior salaries were greater or equal to $50,000. A-627-628 14; ¶¶A-629. Finally, four women applied to the Westland location, where Cintas hired 53 men and zero women between 1999-2002. A-639. Several of those women also applied at Detroit, where Cintas hired 26 men and two women during the same period. A-639. Gina Comiska applied to Westland in August 1999. A-333-334. Comiska was a college graduate, and had been working for three years in two office jobs, prior to which she worked as a waitress for six years and for a landscaping company for three years. Id. Cintas did not hire her, instead hiring several male applicants, including John Butki, who had been working for less than 11/2 years for Johnson's Press running and maintaining their copy room. A-871- 872. Prior to that job, he worked for Pizza Hut for two months packaging and delivering pizzas, for seven months as a shipping clerk, and for nine months loading trucks, maintaining inventory, and delivering related products for a window company. Id. Despite Butki's erratic job history, Cintas hired him instead of Comiska. Tracy Gerke Williams applied at Westland three months later, in November 1999. A-43-45. At the time she applied, Williams was working as an airport shuttle driver, transporting passengers and loading their luggage. Id. Her resume indicated she also had worked briefly for a car dealership as a cashier, and as a hair stylist for two companies, for several years each. Cintas did not interview Williams, but instead hired five men over the same time period. The men varied greatly in their experiences. One, Michael Breault, had a college degree in mechanical engineering technology, and had been working for the previous five years as a plant manager, yet applied (and was hired) for the entry-level SSR job. A-47-50. At the other end of the spectrum was Juan Powers, who had held three jobs since leaving the Marines, none for more than three months. A-869-870. Cintas hired Powers, as they did Frank Pinter, who had held four jobs in the last 21/2 years, A-622-623, and James Jones, who had four jobs in the last four years, none lasting more than a year. A-630-631. Tanya Thompson applied at Westland at an open house in August 2001, where she had an interview. A-537 (Dep. at 13); A-557-558. Thompson told her interviewer about prior customer service experience, the amount of weight she had to lift in past jobs, the fact that lifting heavy weights would not be a problem for her, and the types of trucks she had driven. A-538 (Dep. at 17-20); A-539 (Dep. at 23-24). Cintas informed Thompson by letter she was not hired because they found a more qualified applicant, A-540 (Dep. at 28); Cintas instead hired Nafal Maktari, whose application listed three jobs over a 23/4 year period, none of which were driving or outdoor jobs. R.893-31. Thompson applied at Detroit in March 2002. A-541 (Dep. at 37-38). Her application indicated she most recently had worked as a route driver, and had worked as a driver and route driver in prior jobs. A-559- 560. Thompson had an interview but was not hired. A-541 (Dep. at 39-40); A-542 (Dep. at 44); A-547 (Dep. at 62-63). Cintas instead hired Josh Gilmore -- who had worked as an office clerk, had no driving or outdoor experience, and, before his clerk job, held three jobs in a little over a year - and Timothy Wolner, whose only experience other than the Marines was a few months as a shipping coordinator. A- 561-562; A-563-566. Last, Susan Barber applied at Detroit in January 2002 and at Westland in March 2002. A-166-167; A-169-170. Her application indicated she had worked for the last year-and-a-half as co-manager of a showroom and warehouse for an e- commerce company, where her responsibilities included driving a 24-foot truck to trade shows. Id. In addition, she had been an assistant manager at two retail stores, a manager at two other retail stores, and was owner of another retail store - roughly 11 years retail sales experience. Id. Neither Cintas location elected to interview or hire Barber. A-154 (Dep. at 14). Instead Detroit hired two men, including Josh Gilmore, who did not indicate whether he had a driver's license or moving violations, who had no management experience and only ten months experience in customer service and sales. A-561-562. Westland hired two men, including Darronte Scott, who lacked sales experience. A-624-625. Discovery Rulings Though EEOC was able to identify a number of women affected by Cintas' hiring practices, it was limited from identifying and contacting others because Cintas redacted key information from thousands of their applications, including applicants' last names, addresses, and telephone numbers. R.759 at 4-5. EEOC moved to compel, but the magistrate denied the motion, R.807, and the district court concurred. R.843. EEOC also was limited in identifying women and male comparators because the court's order precluding use of the pattern-or-practice framework left EEOC with little time to pursue discovery under the different, McDonnell Douglas framework applicable to individual claims of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The district court refused to extend the discovery deadline, however. R.783. Finally, EEOC had sought to depose CEO Farmer to ask how and why he formed his views on the lack of female SSR hiring, expressed in his 2003 annual meeting speech. Cintas moved for a protective order, arguing that the "apex doctrine," which holds that the normal discovery rules do not apply to CEOs, precluded deposing Farmer, and the magistrate agreed, barring the deposition altogether. R.831. Summary Judgment Rulings Cintas filed an "omnibus" motion to dismiss EEOC's claim on behalf of individual women, maintaining that EEOC did not adequately conciliate its claim. R.836. Shortly thereafter, Cintas moved for summary judgment on each of the 13 women and, on September 3, 2010, the district court began issuing orders granting Cintas' motions. R.923-R.935. The court granted Cintas' "omnibus" motion on September 20, 2010. R.936. Summary of Argument It has long been recognized that EEOC "need look no further than §706 [of Title VII] for its authority to bring suit ... for the purpose ... of securing relief for a group of aggrieved individuals." Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 324 (1980). EEOC invoked that authority when it filed suit pursuant to §706 on behalf of a class of women, and sought to prove its claim in bifurcated proceedings, using the same pattern-or-practice framework that EEOC ultimately used in General Telephone. Cintas argued that EEOC could not invoke that framework, but this Court already considered -- and rejected -- the precise argument Cintas makes in this case. In EEOC v. Monarch Machine Tool Co., 737 F.2d 1444 (6th Cir. 1980), this Court held that §706 gives EEOC authority to pursue a claim under the pattern-or-practice framework. The district court dismissed the holding of Monarch Machine as mere dicta in an old opinion of this Court, but age cannot take away the precedential weight of this Court's opinions. There was no basis for the district court to revisit an issue definitively resolved in the Sixth Circuit. After the district court issued its §706 ruling - a ruling at odds with that of every court to have considered the issue - EEOC sought to amend its complaint to conform with the court's ruling that EEOC must sue under §707 to proceed under the pattern-or-practice framework. EEOC did not seek to change the nature of its claim (sex discrimination against a class of women in violation of §703), and it did not seek to add a new statute. EEOC simply sought to proceed under the same paradigm already identified in the action. The district court again disregarded this Court's precedent and, abusing its discretion, denied leave to amend. The focus of the case shifted from proof of a pattern or practice of discrimination to proof of discrimination against individual women. Cintas sought summary judgment based on EEOC's investigation and conciliation of its claim, which the district court granted. The court again dismissed binding Sixth Circuit precedent - this time, precedent holding that EEOC's reference to class claims during investigation and conciliation satisfies its obligations at the administrative stage when EEOC later pursues an action under §706. EEOC v. Keco Indus., 748 F.2d 1097, 1100-02 (6th Cir. 1984). The court explained its disregard of Keco by stating, inexplicably, that this case has never been a class-based lawsuit. But this is, and has always been, a case on behalf of a class of individuals, and Cintas has conceded as much: "Cintas ... does admit that the EEOC gave notice, through its investigation, of a potential Michigan class." R.338 at 37. The district court therefore erred. Although the court issued 13 different opinions granting summary judgment with regard to the individual claimants, each opinion echoes the others in ruling as a matter of law that EEOC presented insufficient evidence of discrimination. The court expressed full confidence in the explanations Cintas officials gave for preferring male applicants over females, even though the officials have no memory of the applicants; gave their opinions only after reading over relevant applications and women's depositions; and highlighted certain qualifications when the male applicants had them, but not when the women did. EEOC presented evidence casting doubt on Cintas' explanation for why, each and every time, it considered male applicants more qualified than female applicants. EEOC produced powerful statistical evidence showing dramatic under-hiring of women; it produced evidence of comments and statements showing a mindset among Cintas personnel that SSRs were for men only, and it produced comparative evidence regarding the relative qualifications of male and female applicants. This Court has recognized the value of all three forms of evidence to showing pretext, but the district court was wholly dismissive of the statistical and anecdotal evidence, and it stated that even though many of the female applicants may have compared favorably to the male applicants, it simply would not consider the comparative evidence. In disregarding evidence probative of pretext, the court erred. . Finally, the court abused its discretion by permitting Cintas' CEO to avoid a deposition altogether despite indications he possessed relevant information, by allowing Cintas to give EEOC applications with identifying information redacted, and by refusing to extend discovery after it altered the framework for proving the discrimination claim. Argument I. EEOC may use the Teamsters method of proof for a claim brought under §706. EEOC sought to prove that Cintas engaged in class-wide hiring discrimination in violation of Title VII by using the pattern or practice model set out in Teamsters. Under that method of proof, the Government's initial burden is higher than in an individual, non-systemic case, for the Government must prove "more than the mere occurrence of isolated ... discriminatory acts." Teamsters, 431 U.S. at 336. The Government must prove that "discrimination was the company's standard operating procedure [-] the regular rather than the unusual practice." Id. Proof concerning each individual class member's injury is "appropriately left" to a second phase of proceedings "to determine individual relief," id. at 342 n.24, because "at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking." Id. at 359-360 & n.46; see also Bacon v. Honda of Am., 370 F.3d 565, 575 (6th Cir. 2004) (same). Teamsters was originally brought by the Attorney General under §707, 42 U.S.C. §2000e-6, at the time the only statutory provision authorizing Government action against an employer. In analyzing how to allocate the burdens of proof and what inferences could be drawn from such proof, however, the Teamsters Court relied upon its prior decision in Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), a private class action, necessarily brought under §706, 42 U.S.C. §2000e-5. As Teamsters put it, once the Franks plaintiff class proved a policy of employment discrimination, "there were reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference." Teamsters, 431 U.S. at 359. The Supreme Court did not base its holdings in Franks, and subsequently in Teamsters, on the two statutory provisions authorizing suit, §§706 and 707, but instead on general principles about how to prove a claim. As Teamsters explained, the idea that establishing a discriminatory pattern or practice "creates a rebuttable presumption in favor of individual relief" is "consistent with the manner in which presumptions are created generally." Teamsters, 431 U.S. at 359 n.45; see also id. ("Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party's superior access to the proof."). Moreover, the Teamsters Court emphasized that both Franks and the Teamsters decision itself were simply applying the fundamental principle set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). "The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required," the Court stated, "but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on discriminatory criterion illegal under the Act." Teamsters, 431 U.S. at 358. In other words, Teamsters and Franks took the central lesson of McDonnell Douglas and applied it to the systemic discrimination context to create appropriate burdens of proof. The district court in this case refused to permit EEOC to invoke the Teamsters model of proving a pattern or practice of discrimination. According to the court, because EEOC brought suit under §706 of Title VII, it must proceed under the specific framework of McDonnell Douglas. R.723 at 20. The court asserted its ruling was dictated by the statute: "Section 706 actions are - and have always been - adjudicated under the burden-shifting framework announced in McDonnell[] Douglas.... Section 706 ... unequivocally refers to claims by individual plaintiffs." Id. The court's attempt to pigeonhole cases by their authorizing provision is at odds with fundamental principles of Title VII law as it has developed over the last four-and-a-half decades. As a factual matter, the district court erred: §706 actions are not always adjudicated under the specific framework of McDonnell Douglas. Every private class action case using the pattern-or-practice framework of proof is a §706 case. See, e.g., Franks, 424 U.S. at 773 n.32. More to the point, EEOC actions alleging systemic discrimination and utilizing the Teamsters method of proof likewise are brought under §706. See EEOC v. Monarch Machine Tool Co., 737 F.2d 1444 (6th Cir. 1980); EEOC v. Gen. Tel. Co. of the Northwest, 885 F.2d 575 (9th Cir. 1989); EEOC v. Int'l Profit Assocs., 2007 WL 844555, *9 (N.D. Ill. 2007); EEOC v. Scolari Warehouse Markets, 488 F.Supp.2d 1117 (D. Nev. 2007). Nor is there any statutory support for the district court's mechanical linking of the suit-authorizing provision to a particular way of proving a claim. The provision authorizing EEOC suits does not contain any language limiting an action to discrimination against individuals, rather than a class. Section 706(f)(1) permits EEOC to "bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge." 42 U.S.C. §2000e-5(f)(1). In other words, §706 simply authorizes suit to enforce Title VII and, as such, encompasses far more than individual disparate treatment claims in which the plaintiff proves that claim using the burden-shifting framework of McDonnell Douglas.<10> On a more fundamental level, the district court's statement that §706 actions must be adjudicated under McDonnell Douglas misunderstands the point of McDonnell Douglas - namely, that a plaintiff must produce enough evidence to create an inference of discrimination, and how the plaintiff creates the inference will vary depending upon the particular facts and allegations in the case. See Teamsters, 431 U.S. at 358 (adapting McDonnell Douglas principle to case involving class-wide discrimination). The district court acknowledged that in the more than 35 years since Congress granted EEOC litigation authority, no court ever held that EEOC is precluded from using the Teamsters model of proof in §706 systemic discrimination actions. R.723 at 15. The district court stated it nonetheless was free to rule as it did because, aside from two district court decisions, it was writing on a blank slate. The court maintained further that the question of whether EEOC can use the Teamsters pattern-or-practice framework "has not yet been decided by any circuit court[] of appeal[s]." R.723 at 12. The district court was manifestly incorrect. The issue has been decided by a court of appeals, in particular by this Court. In Monarch Machine, 737 F.2d 1444, this Court explicitly held that §706 gives EEOC authority to pursue a claim alleging a pattern or practice of discrimination under the Teamsters paradigm. Monarch Machine was, like this case, a hiring discrimination case brought by EEOC under §706 on behalf of two charging parties and a class of women. 737 F.2d at 1446-47. EEOC sought to prove its case in a bifurcated trial using the Teamsters paradigm, but the district court instead conducted a single trial, and granted relief only to the two charging parties (because the court mistakenly thought EEOC needed class certification under Rule 23 to pursue a class claim). Id. This Court clarified that EEOC may seek class-wide relief without Rule 23 certification, the first issue raised by EEOC in its appeal. Id. at 1447. EEOC also challenged the district court's failure to allow EEOC to prove its claim under the Teamsters paradigm. In its brief to this Court, EEOC explicitly responded to the employer's argument - identical to the argument Cintas made here - "that the presumption as to individual injury, recognized in Teamsters ..., when discrimination against a class has been established, does not apply in a suit under Section 706 rather than under Section 707 of Title VII." Brief of EEOC as Cross- Appellee at 2, EEOC v. Monarch Machine Tool Co., No. 77-3526 (filed March 6, 1978); see also id. at 10 ("Monarch argues that the Teamsters ruling does not apply in this case because Teamsters was brought under Section 707 of Title VII whereas this case was brought under Section 706(f)(1)."). This Court explicitly rejected Monarch's argument and held that the district court had erred by failing to conduct a bifurcated trial under the Teamsters/Franks model. This Court held, "we believe that the trial should have been bifurcated, if class-wide discrimination was properly found." Monarch Machine, 737 F.2d at 1449. This Court, in the text of its decision, instructed that the "burden and order of proof in class actions under Title VII has rather clearly evolved in Teamsters ... and ... Franks.... Thus, as pointed out by the Supreme Court in Teamsters, the Commission's burden at the liability stage is 'to demonstrate that unlawful discrimination has been a regular procedure or policy.... At the initial, "liability" stage ... the government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy.'" Id. (quoting Teamsters, 431 U.S. at 360). In a footnote, this Court explained why it rejected Monarch's argument regarding the applicability of Teamsters in §706 EEOC actions: "Although ... the Supreme Court in Teamsters was discussing the proper procedure for the district court to follow in a section 707 pattern-or-practice suit, it adopted this procedural framework from Franks which dealt with class actions under section 706." Monarch Machine, 737 F.2d at 1449 n.3 (citing Teamsters, 431 U.S. at 358-61). Thus Monarch Machine made clear that EEOC, when proving a claim of systemic discrimination under §706, may utilize the Teamsters pattern-or-practice framework. The district court dismissed Monarch Machine as not binding. R.723 at 12. According to the court, the language cited by EEOC was simply "dicta" because Monarch Machine ruled only on whether EEOC needed Rule 23 certification. R.723 at 13. In fact, this Court addressed several issues. This Court disposed of the Rule 23 issue in section I of its decision. 737 F.2d at 1447. In section IV of its decision, this Court addressed whether EEOC's §706 action should have been tried in a bifurcated proceeding, using the Teamsters model. Id. at 1449-50 & n.3. This Court answered that question in the affirmative, and ordered a remand with explicit instructions about how to conduct additional proceedings. Id. at 1453. Moreover, because the defendant had challenged whether the Teamsters model was appropriate in a §706 EEOC action, it was necessary for this Court to resolve that issue in section IV of the decision. In sum, this Court's ruling was not dicta. The district court also considered the bifurcation ruling in Monarch Machine to be dicta because it is contained in a footnote, and it is 16 [sic] years old. R.723 at 13-14. The district court misread the opinion because the critical part of Monarch Machine's holding appears in the text of the decision, which states that EEOC's §706 action should be tried under the Teamsters model. 737 F.2d at 1449. Moreover, the fact that Monarch Machine was published in 1984, and rarely has been cited since, does not affect its precedential weight. Sixth Circuit rules plainly state: "Reported panel opinions are binding on subsequent panels.... Court en banc consideration is required to overrule a published opinion of the court." 6th Cir. R. 206(c) (cited in Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir. 2001)). Time does not diminish the precedential weight of the prior decision. United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996) ("The prior decision [of another panel] remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.") (internal quotations omitted). The fact that the decision rarely has been cited is not - and should not be - ground for considering the precedent overruled; rare citations may mean simply that the issue is so uncontroversial that parties no longer contest it. Finally, the district court stated, incorrectly, that the Sixth Circuit has "since reaffirmed the distinction between §706 and §707 actions" in Bacon, 370 F.3d at 575. R.723 at 14. Even if the Bacon panel could, without sitting en banc, overrule Monarch Machine, it did not do so. The Bacon Court said nothing about §707, nor would it have had cause to address §707. Bacon was a private case, necessarily brought under §706, where the issue was whether individuals whose claims have not been certified under Rule 23 can pursue their claims using the Teamsters paradigm. The Supreme Court has held that EEOC need not obtain certification under Rule 23, see General Telephone, and so Bacon does not pertain to EEOC actions, nor does it speak to the continuing vitality of Monarch Machine. Monarch Machine, as binding Sixth Circuit precedent, resolves the issue without the need for any further analysis by this Court. Even if were an issue of first impression, this Court should come to the same conclusion as the Monarch Machine Court reached because it is consistent with the text of the statute, with its history, with its purpose, and with Supreme Court precedent. By its plain terms, §706 broadly confers on EEOC the power to enforce any of Title VII's statutory prohibitions by filing suit against non-governmental entities. Section 706(a) states: "The Commission is empowered ... to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title." 42 U.S.C. §2000e-5(a) (emphasis added). Section 706(f)(1) delineates EEOC's power to bring "a civil action against any respondent ... named in the charge." 42 U.S.C. §2000e-5(f)(1). This broad language is consistent with Congress' wish, with the 1972 Amendments to Title VII, to provide EEOC "'with effective power to enforce title VII.'" S. Rep. No. 92- 415, at 28 (1971). Prior to the Amendments, EEOC was limited to investigating and conciliating private complaints of discrimination. The initial Senate Report on the Amendments noted that the "failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII." Id. at 4. The bill enacted by Congress authorizes EEOC to bring suit under §706, enabling EEOC to achieve "the overriding public interest in equal employment opportunity ... through direct Federal enforcement." 118 Cong. Rec. 4941 (1972). Nothing in the language or legislative history of §706 reveals a Congressional intent to limit the method of proof EEOC may use. In 1972, Congress also transferred to EEOC the Attorney General's authority under §707. The Attorney General's enforcement authority had been limited to actions alleging a pattern or practice of discrimination. In so amending the statute, Congress explicitly referenced §706 in §707(e): Subsequent to March 24, 1972, the Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination.... All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title [section 706]. 42 U.S.C. §2000e-6(e). Congress thus made it explicit that EEOC had the authority to challenge a pattern or practice of discrimination, and that it could do so under §706. The district court here stated that §707's language referring to §706's "procedures" is not equivalent to language about the manner of proof to be followed. R.723 at 16. But, of course, nothing in §706 says anything about the manner of proof. As noted supra, §706 cases may be individual cases in which the plaintiff proves his or her case under a McDonnell Douglas-type paradigm, but they may also be private class actions with a Teamsters model of proof, harassment cases with a different proof requirement, or direct evidence cases that do not require using McDonnell Douglas. Nothing in the statutory language suggests that when EEOC exercises its authority under §706, it is somehow limited in the manner of proving its claim.<11> This understanding of the 1972 Amendments is consistent with the statements of the bill's floor managers. Senators Javits and Williams stated that EEOC's authority to initiate litigation under §706(f)(1) would allow it to bring "exactly the same actions that the Department of Justice does under pattern and practice" (118 Cong. Rec. 4081 (1972)), and that "[t]here will be no difference between the cases that the Attorney General can bring under section 707 as a 'pattern and practice' charge and those [EEOC] will be able to bring as a result of [the] decision to give EEOC court enforcement powers [under §706]." Id.; see also id. at 4082 (Senator Javits) ("[If EEOC] proceeds by suit [under §706(f)(1)], then it can proceed by class suit. If it proceeds by class suit, it is in the position of doing exactly what the Department of Justice does in pattern and practice suits.") (quoted in Gen. Tel., 446 U.S. at 328). Any doubt about EEOC's ability to pursue a claim on behalf of a class of individuals under §706 was put to rest by General Telephone, the critical Supreme Court case, and one whose central holding the district court notes, but then effectively ignores in its "Analysis" section. In General Telephone, an EEOC action brought on behalf of a class of individuals under §706, EEOC had moved the district court "'for an order bifurcating the issue of class liability from the issue of individual damages.'" See 446 U.S. at 322. The defendant responded that the case could not proceed as a "class action," with bifurcated proceedings, because EEOC had not complied with Rule 23. 1977 WL 15420 (W.D. Wash. 1977). The district court held EEOC could proceed, the Ninth Circuit affirmed, and the Supreme Court granted certiorari to decide whether EEOC must be certified as a class representative when it proceeds under §706.<12> The Supreme Court held EEOC need not seek Rule 23 certification: "EEOC need look no further than §706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals." 446 U.S. at 324; see also EEOC v. Waffle House, 534 U.S. 279, 288 (2002) (same). The Supreme Court plainly knew that this authority meant that EEOC could invoke the bifurcated, Teamsters model of proving class discrimination because the Court explicitly noted that EEOC had sought to prove its case against General Telephone using this model: "Here ... EEOC moved to try initially the issue of liability, not to avoid proving individual claims, but merely to postpone such proof." 446 U.S. at 333. And EEOC, still proceeding under §706, indeed went on to try the case using the Teamsters model of proof after remand. See EEOC v. Gen. Tel. Co. of the Northwest, 885 F.2d 575, 577, 584 (9th Cir. 1989) (reversing district court's finding that "EEOC had failed to prove that GenTel engaged in a company-wide pattern or practice of intentional discrimination"). Almost thirty years ago, Monarch Machine definitively resolved the issue the district court has now reopened. Nothing has changed during that thirty-year span to undermine this Court's precedent - precedent wholly consistent with the statutory language, its history, and Supreme Court authority. This Court therefore should reverse the court's §706 ruling. II. Although moot if the Court agrees EEOC can proceed under §706, the district court abused its discretion by denying EEOC leave to amend its complaint to invoke §707. According to the district court's assessment of EEOC's motion to amend, EEOC was "essentially ask[ing] that this case start over from scratch" by bringing a "new pattern or practice claim" at the "eleventh-hour" of this litigation. R.829 at 2, 11 (internal quotations omitted). Therefore, held the court, "undue delay" and "undue prejudice" justified denying EEOC's motion. R.829 at 6. The court's holding is premised on an erroneous characterization of this Court's precedent, and of the underlying facts. From the opening moment of this litigation, EEOC made plain its intent to pursue this case under the pattern-or-practice model. After the court issued its §§706/707 ruling, and refused to certify that question, EEOC did not seek to change the nature of its allegation (sex-based hiring discrimination against a class of women in violation of §703), nor did EEOC seek to change the method of proving that Cintas discriminated against the class of women. EEOC simply sought to amend its complaint to conform to the court's ruling about the proper enforcement provision. Under these circumstances, even if the court were correct that EEOC may only pursue a claim alleging a pattern or practice of hiring discrimination under §707, the court abused its discretion in refusing to allow EEOC to amend its complaint. Morse v. McWhorter, 290 F. 3d 795, 799 (6th Cir. 2002) (denial of leave to amend reviewed for abuse of discretion). Federal Rule of Civil Procedure 15(a)(2) states that a court "should freely give leave [to amend complaints] when justice so requires." The Supreme Court has instructed that "this mandate is to be heeded," for it embodies the principle that "a plaintiff ... ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982) (Rule 15 "reinforce[s] the principle that cases should be tried on their merits rather than the technicalities of pleadings."). To be sure, a court may exercise its discretion to deny leave to amend, but only on grounds not inconsistent with the policy favoring amendment. See Tefft, 689 F.2d at 639 (principle that cases should be tried on merits "provides guidance" for determining whether court abused its discretion in denying requested amendment). Undue delay and undue prejudice, the grounds relied on by the district court, might justify denial of leave to amend, but those grounds were patently absent here. The district court, relying on Duggins v. Steak 'N Shake, 195 F.3d 828 (6th Cir. 1999), held there was "undue delay." R.829 at 7-8. It is well-settled that "delay alone is not a sufficient reason for denying leave," Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986), and Duggins accordingly emphasized three critical factors that made the delay "undue": (1) the plaintiff sought to amend her Title VII sex discrimination and retaliation complaint to add an entirely new claim under an entirely new statute, the Fair Labor Standards Act; (2) the plaintiff waited for the discovery deadline to pass before filing her motion; and (3) the plaintiff offered no justification for her delay. Duggins, 195 F.3d at 834. None of those factors were present here. EEOC did not seek to add a new claim under a new statute. The statute is the same and the claim is the same - hiring discrimination against a class of women in violation of Title VII, 42 U.S.C. §2000e-2. EEOC sought amendment only to identify the enforcement provision the district court held appropriate. This case thus more closely resembles Moore, where this Court held the district court abused its discretion by refusing to allow the plaintiff leave to substitute the proper statutory provision, §1983, for the improper one identified in the complaint -- §1985. 790 F.2d at 559-62. This Court concluded that denying amendment was an abuse of discretion where, as here, "the newly asserted claim would be supported by facts set forth in the original claim." Id. at 561 (citing Tefft, 689 F.2d at 639). Arguably, this case presents an even stronger argument for amendment than did Moore, for the added provision is not the substantive provision providing the basis for EEOC's discrimination claim, but simply the provision conferring enforcement authority. The other two bases underlying Duggins' undue delay holding also are absent. Unlike the Duggins plaintiff, EEOC did not wait until the discovery deadline passed, but filed its motion on March 23, 2010, seven weeks before the May 10, 2010, discovery deadline, and 12 weeks before the June 14, 2010, dispositive motion deadline. EEOC waited only 11 days after the district court denied its request to certify the §§706/707 issue for interlocutory appeal before filing its motion to amend. And unlike the Duggins plaintiff, EEOC had a justification for its "delay." EEOC relied on binding precedent (or, at a minimum, ample authority) holding that §706 provides EEOC with the statutory basis to pursue a discrimination claim using whatever model of proof is most appropriate, including the Teamsters model. No case had ever held, as the court did here, that EEOC must proceed under §707 in order to use the Teamsters, bifurcated trial model. Given the weight of authority, there was no reason for EEOC to amend its complaint until after the court's ruling and certification denial. The district court held that, regardless of EEOC's reasons for waiting, the issue was not when EEOC knew it needed to pursue its claim under §707, but rather when "EEOC knew of the facts underlying its potential cause of action under §707." R.829 at 9 (citing Morse, 290 F.3d 795); see also R.829 at 8 (stating that Duggins held "clock begins to run" when plaintiff is aware of basis of claim). The district court misstated the law of this circuit. The Morse Court reversed denial of leave to amend, and nothing in the Court's opinion supports the district court's characterization of Sixth Circuit law. Nor is there support found in Duggins, where this Court stressed the lack of justification for plaintiff's delay in seeking to add an entirely new claim under a new statute. In fact, this Circuit takes the opposite approach - where the facts underlying the new claim are set out in the original complaint, as the court acknowledged they were here (R.829 at 9), that factor supports granting leave to amend. See Moore, 790 F.2d at 561 (denying amendment abuse of discretion where "newly asserted claim would be supported by facts set forth in the original claim"); id. at 562 (amendment should be granted where facts "are well known to the parties" and were pleaded at outset "although relief was erroneously sought under §1985"); Tefft, 689 F.2d at 639-40 (same). Undue prejudice also is required to deny leave to amend, but undue prejudice is lacking here as well. The district court stated it agreed with Cintas' argument that amending the complaint would "fundamentally alter the character and scope of this case" and would force Cintas "to start over ... and engage in entirely new preparation." R.829 at 11; see also R.829 at 12 (citing Duggins, 195 F.3d at 834, and Wade v. Knoxville Utilities Board, 259 F.3d 452 (6th Cir. 2001), as cases "instructive" about problem of requiring defendants to prepare against claim "'quite different'" from claim originally brought). As discussed above, EEOC was not seeking to add an entirely new claim, as in Duggins, where the Title VII plaintiff sought to add an FLSA claim, or as in Wade, a Title VII race case in which the plaintiff sought to add, without explanation, an Americans with Disabilities Act claim. EEOC had been pursuing the same discrimination claim from the very start, and sought to prove that claim in the same manner, albeit using a different Title VII provision as its statutory authority to file suit. Given the consistency of EEOC's approach, it strains credulity for Cintas to assert, and for the district court to find, that Cintas would have to start over and engage in entirely new preparation. EEOC alleged, from the beginning, that Cintas denied employment to "a class of women as alleged in [private] Plaintiffs' Second Amended Complaint by refusing to recruit and hire them as Drivers/Service Sales Representatives because of their sex." R.98 ¶8. The referenced "Second Amended Complaint" alleged Cintas engaged in a "policy, pattern, or practice of denying 'Service Sales Representative' positions to female applicants." R.70 ¶1. The parties and court discussed EEOC's intent to pursue its claim under the pattern or practice framework at the August 10, 2009, scheduling conference and, confirming its understanding of the model of proof to be used, the district court issued an order the next day (regarding scheduling of the private plaintiffs' case vis-à-vis EEOC's) in which the court referenced EEOC's "'pattern or practice' action against the Defendant." R.647 at 1. In a brief filed on August 21, 2009, EEOC elaborated on the respective burdens of proof in "an EEOC pattern or practice case" under the Teamsters, bifurcated trial model. R.651 at 2-3. Cintas indicated its understanding of EEOC's claim when it filed a brief, also on August 21, 2009, stating that "EEOC ... has raised a claim that Cintas engaged in a pattern or practice of discriminatory hiring." R.653 at 2. As early as August 2009, then, it was apparent to all involved in this case that EEOC was seeking to pursue its claim under the Teamsters model. It is true that in late October 2009, the parties began disputing whether EEOC could proceed under the Teamsters framework. See R.660, R.662. EEOC sought clarification of the scheduling order to make explicit that, in the interests of economy, "discovery pertaining to individual class members should take place only after a finding in favor of the Commission at the first stage of trial." R.660 at 3. Cintas contested that motion, and the district court never ruled on it, deeming it mooted by the §§706/707 decision issued on February 9, 2010. R.725. Until the February ruling, however, the focus of discovery was on proving a pattern or practice of discrimination, not on identifying individual victims of discrimination. Cf. Teamsters, 431 U.S. at 360 n.46 ("at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking"); Bacon, 370 F.3d at 575 (same). Only after that ruling did the focus of discovery shift to identifying victims and proving individual claims. See R.735 at 16 (requiring EEOC to disclose names of individuals for whom it was seeking relief by March 23, 2010). By seeking to amend the complaint, EEOC was acting in a manner consistent with its representations from the outset about how the case should be proven. EEOC was not bringing forward a new claim, under a new statute. In this context, Cintas cannot assert it would have suffered "undue prejudice" from an amendment to the complaint. The district court therefore abused its discretion in denying leave to amend, but its error is moot if this Court agrees EEOC can use the Teamsters framework in a §706 suit. III. EEOC satisfied all the administrative prerequisites to filing suit by investigating and conciliating its claim. Section 706(b) of Title VII sets out the statutory prerequisites EEOC must fulfill prior to filing suit against an employer. Upon receiving a charge of discrimination, EEOC must serve notice of the charge on the employer, make an investigation of the charge, and, if it finds "reasonable cause," attempt conciliation with the employer. 42 U.S.C. §2000e-5(b). These requirements provide for notice to the employer by ensuring that "a potential defendant is kept informed of the progress of the action ... during ... EEOC administrative proceedings." Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 372 (1977). The progress of the administrative proceedings may include expansion of the discrimination investigated, for Title VII does not oblige EEOC "to cast a blind eye" over evidence of broader discrimination, but instead gives EEOC the flexibility to expand its investigation. EEOC v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976). Indeed, it is well-settled that "the original charge is sufficient to support action by the EEOC ... for any discrimination ... developed in the course of a reasonable investigation ... provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by ... conciliation ..." Id. at 366; see also Occidental Life, 432 U.S. at 372 n.32 (reasonable cause determination provides notice to employer of expanded investigation). If EEOC finds reasonable cause but fails to reach an acceptable conciliation agreement, it has no authority to impose fines or otherwise sanction an employer, but may bring suit and attempt to prove its claim in court. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (EEOC "cannot adjudicate claims or impose administrative sanctions ... responsibility for enforcement of Title VII is vested with federal courts"). For this reason, courts do not review EEOC determinations to see if they are supported by substantial evidence because a two- stage adjudication model would "deflect the efforts of both the court and the parties from the main purpose of this litigation: to determine whether [the employer] has actually violated Title VII." EEOC v. Keco Indus., 748 F.2d 1097, 1100 (6th Cir. 1984) (internal quotations omitted). The district court in this case violated this well-established principle when it held that EEOC did not satisfy the administrative prerequisites to suit. Although EEOC spent over two years actively investigating whether Cintas engaged in hiring discrimination against a class of women in Michigan, and spent well over two-and-a-half years vigorously engaging in conciliation on the claim that Cintas discriminated against a class of women, the court held EEOC's efforts inadequate.<13> In so holding, the court delineated the contours of what it considered to be an adequate investigation and conciliation. According to the court, it is not enough for EEOC to notify an employer it is investigating discrimination against a class of women. Instead, said the court, EEOC must identify each woman injured by the systemic discrimination at the administrative stage, or else it may not seek relief on her behalf. The court's approach - dictating how the agency must investigate and conciliate before it may invoke its statutory authority to bring suit - stands in direct conflict with the statute and with this Court's history of according EEOC flexibility in its investigations and conciliations. See 42 U.S.C. §2000e-5(f) ("If ... 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 ... named in the charge.") (emphasis added). This Court's most germane pronouncement on the issue came in Keco, 748 F.2d 1097, a case quite similar to this one. In Keco, a woman filed a charge alleging pay discrimination, and the EEOC investigation expanded to encompass both pay and hiring discrimination. Id. at 1098. EEOC found cause to believe the employer was discriminating against women as a class, and subsequently filed suit alleging discrimination against women as a class, without identifying each woman. Id. The defendant challenged EEOC's investigation, questioning whether it formed a sufficient basis for EEOC's class discrimination finding, and challenged EEOC's conciliation efforts, which only generally referenced the class discrimination aspects of the case. Id. at 1100-01. This Court rejected both challenges to EEOC's administrative activity. As to EEOC's investigation, the Court held that a district court errs by "inquir[ing] into the sufficiency of the Commission's investigation." Id. at 1100. In so holding, the Court emphasized that the investigation and resulting cause determination "do[] not adjudicate rights and liabilities; [they] merely place[] the defendant on notice of the charges against him. If the charge is not meritorious, procedures are available to secure relief, i.e. a de novo trial in the district court." Id. (citation omitted). This Court next held that a district court should not probe into conciliation beyond determining "only ... whether the EEOC made an attempt at conciliation." Id. at 1102. Indeed, a district court errs by inquiring into the sufficiency of conciliation, for the "form and substance of those conciliations is within the discretion of the EEOC as the agency created to administer and enforce our employment discrimination laws and is beyond judicial review." Id. In sum, stated the Court, EEOC's general reference to class claims during conciliation was adequate, for "the class-based claim is basically the same as [the charging party's] claim; only the number of [claimants] has changed." Id. The district court in this case effectively ignored Keco, relegating it to a long list of precedent that the court stated were distinguishable because they were all "lawsuits in a class-action, or ... were proper class-based actions." R.936 at 10. This case is different, the district court stated, because "this case is not now, nor has it ever been, a class-based lawsuit." R.936 at 10-11. The district court's statement is the crux of its holding, but is wholly inexplicable. EEOC's action, of course, was an action explicitly brought on behalf of "a class of women." R.98 ¶¶8, 9, 11. More to the point, Cintas was on notice during the administrative proceedings that EEOC expanded its investigation and was examining evidence related to a class of women. See R.48-8 at 3; R.48-9. The Letter of Determination referenced discrimination "against females as a class." Perhaps most notably, Cintas itself acknowledged, repeatedly, in briefs and other filings with the district court, that it was on notice that EEOC's investigation had expanded to encompass a class of women. For example, it stated in a brief: "While Cintas vehemently denies that it discriminated in SSR hiring in Michigan ..., it does admit that the EEOC gave notice, through its investigation, of a potential Michigan class." R.338 at 37; see also R.338 at 32 ("the Determination and the corresponding Conciliation Agreement applied - most broadly - to Michigan facilities and contemplated - at most - a Michigan class"); R.47 at 10 (Def. Opp. Mem. at 6) (from February 2003 onward, "the parties' conciliation efforts were focused solely on Cintas' facilities in the State of Michigan"); R.836 at 9 (Omnibus Mot. at 3) ("the investigation eventually expanded beyond Ms. Serrano's individual allegations and broadened into a class-wide investigation regarding Cintas' hiring of females as SSRs throughout the State of Michigan"). The district court does not explain what it means by saying that "this case is not ... a class-based lawsuit," R.936 at 10-11, but presumably the court is referencing its §§706/707 decision, and is conflating EEOC's authority to pursue a claim based on the pattern-or-practice framework under §706 (which the district court held EEOC lacks) with EEOC's authority to pursue a claim on behalf of a class of individuals under §706 (which EEOC plainly possesses). If this is the court's meaning, it is at odds with binding decisions from this Court and the Supreme Court explicitly recognizing EEOC's authority to pursue a claim on behalf of a "class" of individuals under §706. In particular, EEOC brought Keco, the Sixth Circuit case the district court effectively disregarded, under §706. See R.876-3 at ¶¶1, 3. EEOC likewise brought General Telephone, the case in which the Supreme Court recognized EEOC's authority to seek classwide relief in its own name, under §706. 446 U.S. 318. Keco is not a decision whose import is suspect. To the contrary, numerous courts rely on it for its two central teachings: (1) a district court should only determine whether EEOC made a good faith conciliation attempt, not whether the district court is satisfied with the substance of the attempts at conciliation, and (2) EEOC is not required to name the specific class members at the administrative stage as long as the parameters of the class are identified. Like Keco Industries itself, these cases provide that EEOC need not identify each individual for whom it seeks relief during investigation and conciliation when, as here, EEOC alleges class-wide discrimination under §706. See EEOC v. Calif. Psychiatric Transitions, 644 F.Supp.2d 1249, 1272-73 (E.D. Cal. 2009) ("no legal authority" requiring that EEOC "specifically identify" women in class) (citing Keco) (§706 case); *EEOC v. Paramount Staffing, 601 F.Supp.2d 986, 989-90 (W.D. Tenn. 2009) (recognizing EEOC discretion during administrative stage and holding that EEOC was not "obligated to disclose the identities of all two hundred class members" as long as outline of class is identified) (citing Keco) (§706 case); EEOC v. Cone Solvents, Inc., 2006 WL 1083406, at *6-7, *9 (M.D. Tenn. 2006) ("As long as the outline of the class is identified, each female within the 'class' need not be specifically identified in the conciliation process.") (citing Keco) (§706 case); *EEOC v. David Lerner Assocs., 2005 WL 2850080, *1, *3 (D. Conn. 2005) ("EEOC's conciliation obligation does not require the agency to identify every potential claimant") (citing Keco) (§706 case); ?EEOC v. Mike Fink Corp., 1998 WL 34078445, *3-4 (M.D. Tenn. 1998) (EEOC may pursue claim on behalf of "unidentified persons") (citing Keco) (§706 case); cf. EEOC v. Dial Corp., 156 F.Supp.2d 926, 938-42 (N.D. Ill. 2001) (§707 case relying on Keco and holding EEOC need not identify every class member during administrative process). Other courts of appeals have reached the same conclusion as Keco. See EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996) (noting "EEOC's ability to challenge discrimination affecting unidentified members of a known class" under §706) (citation omitted); EEOC v. Bruno's Rest., 13 F.3d 285, 287, 289 (9th Cir. 1993) ("'in a class action suit, [t]he EEOC is not required to provide documentation of individual claimants to conciliate on behalf of each potential claimant'") (§706 case) (quoting EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16, 17 (3d Cir. 1989)); EEOC v. Am. Nat'l Bank, 652 F.2d 1176, 1184-86 (4th Cir. 1981) (EEOC may pursue hiring claims involving locations not specifically identified in conciliation where employer knows hiring practices affected those locations) (§706 case). EEOC plainly identified the outline of the class for which it was seeking relief, and Cintas has acknowledged as much: the class consisted of rejected female applicants for SSR positions in Michigan. See R.338 at 37. Indeed, as part of its initial efforts to identify women in the class, EEOC named six of the 13 women for whom it later sought relief in a draft conciliation agreement created to explain to Cintas "the types of relief necessary to remedy the violation of the statute." R.876-6 at 1; R.876-7 at 5-6 (Draft Agr. at 3-4). In the narrowest sense, then, it was incorrect for the district court to state that none of the 13 women "were the subject of any pre-suit investigation or conciliation procedures." R.936 at 15. More fundamentally, the court was incorrect because all 13 women, as members of the identified class, were encompassed within EEOC's investigation and conciliation. Under these circumstances, Keco and its progeny instruct that EEOC satisfied all administrative prerequisites to bringing an action on behalf of women who fell within the parameters of the identified class. The district court makes only a passing reference to Keco, and instead devotes six pages of its decision to a district court opinion from outside this Circuit, EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa 2009), on appeal, Nos. 09-3764, 09-3765, 10-1682 (8th Cir.). R.936 at 11-16. CRST 's holding that EEOC must identify each individual in a class at the administrative stage before bringing suit under §706 cannot be reconciled with binding precedent from this Court. Moreover, CRST is an outlier, at odds with overwhelming authority from various appellate and district courts, and currently is on appeal to the Eighth Circuit. For the reasons explained above, the court erred in holding EEOC's conciliation efforts inadequate. Even if those efforts were somehow lacking, however, the appropriate remedy is not the "severe" penalty of dismissing a potentially meritorious claim. Cf. R.936 at 16. Rather, the appropriate remedy would be staying court action to permit further administrative proceedings. Such a remedy is expressly envisioned by the statute. See 42 U.S.C. §2000e-5(f)(1) ("the court may, in its discretion, stay further proceedings ... to obtain voluntary compliance"). EEOC actively participated in conciliation efforts for two years. Its decision to end conciliation was not made in bad faith, nor was it arbitrary or unreasonable. Under these circumstances, courts have held it proper to utilize the stay permitted by Title VII to enable EEOC to obtain voluntary compliance. EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981); Dial Corp., 156 F.Supp.2d at 942 n.11 (citing cases). The district court erred in dismissing EEOC's case. IV. The district court erred in granting summary judgment to Cintas on EEOC's claim that Cintas discriminated against 13 individual women. If this Court reverses the pattern or practice (§§706/707) ruling or the ruling denying leave to amend the complaint, it will be unnecessary for the Court to review the 13 decisions the district court issued on each individual claimant. Probing into each individual case would be unnecessary because, on remand, EEOC's burden at the liability phase will be to prove a pattern or practice of hiring discrimination, and not that each individual was the victim of discrimination. Teamsters, 431 U.S. at 336, 342 n.24, 359-60 & n.46; Bacon, 370 F.3d at 575 (when proving pattern or practice, focus is on policy of discrimination, not individual hiring decisions). If EEOC proves a pattern or practice of discrimination, then the parties may participate in a second proceeding in which Cintas would have to show an individual applicant was denied employment for lawful reasons. Teamsters, 431 U.S. at 362 (citing Franks, 424 U.S. at 773 n.32). Alternatively, the parties may forego a second trial in favor of a class-wide approach to the measure of back pay. Such an alternate approach is appropriate where the employer's practices and recordkeeping make it difficult to replicate which claimants would have been selected absent discrimination. See McClain v. Lufkin Indus., 519 F.3d 264, 281 (5th Cir. 2008). But under either scenario, McDonnell Douglas does not come into play. By contrast, if this Court affirms both pattern-or-practice rulings, the district court's assessment of the individual claims becomes critical, and EEOC therefore addresses the errors in the court's opinions. Those errors led the court to grant summary judgment to Cintas improperly, because there was ample evidence from which a jury could conclude gender was a motivating factor in Cintas' hiring decisions. This Court therefore should reverse the district court judgment. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000) (en banc) (grant of summary judgment reviewed de novo). A. The district court erred in holding that EEOC did not establish a prima facie case for eight claimants, based on evidence that Cintas acquired years after the hiring decisions that could not have motivated those decisions. The district court held that EEOC established a prima facie case of discrimination for five claimants (Barber, Colfer, Harrington, Leach, Schelske) because EEOC showed the women applied for a position for which they were qualified, Cintas rejected them, and Cintas continued to seek applicants to fill the SSR position. See, e.g., A-883 (citing McDonnell Douglas, 411 U.S. at 802). In so holding, the court properly rejected Cintas' contention that the subjective opinions of its managers rendered the women unqualified; the court emphasized precedent that a plaintiff establishes a prima facie case by showing "'his or her qualifications are at least equivalent to the minimum objective criteria required for employment.'" A-883-884 (quoting Wexler v. White's Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003) (en banc)); see also Wexler, 317 F.3d at 574 (court may not consider employer's alleged nondiscriminatory reason for decision at prima facie case stage because "[t]o do so would bypass the burden-shifting analysis" and deprive plaintiff of opportunity to show pretext). With regard to the remaining eight claimants (Bradstrom, Comiska, Kremhelmer, Raby, Thompson, Vitale, Washington, Williams), however, the court held them unqualified for the SSR position based upon evidence Cintas uncovered years after its hiring, when this litigation prompted Cintas to scrutinize the women's applications and background. The court held the claimants' "lack of honesty" rendered them unqualified, even though the problems identified in Cintas' summary judgment motions, such as omissions of some prior jobs or inaccurate reporting of their high school grades, were unknown to the officials when they decided not to hire the women. The court's ruling that such after- acquired evidence of discrepancies on the women's applications somehow negates their prima facie case is incorrect. When an employer acquires negative information about an individual during discovery, that information may serve to limit the relief to which the individual is entitled. But such after-acquired evidence does not address whether the employer unlawfully discriminated. That is the question the prima facie case is designed to help answer. The court's holding to the contrary misapprehends the very purpose of the prima facie requirement, and cannot be reconciled with Supreme Court precedent explaining how to evaluate after-acquired evidence. The purpose of the prima-facie-case requirement and the overall analytical framework described in McDonnell Douglas is to provide "a sensible, orderly way" to present and evaluate evidence, and "is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981); see also Swierkiewicz, 534 U.S. at 510 (purpose of prima facie case is satisfied when plaintiff puts forward evidence creating inference of discrimination sufficient to require employer to produce an explanation for its actions); Burdine, 450 U.S. at 253 (establishing prima facie case is "not onerous" because it shifts only burden of production to employer). At the end, "the ultimate factual question in the case ... is whether the defendant intentionally discriminated against the plaintiff." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) (internal quotations omitted); see also Wexler, 317 F.3d at 576 (framework meant to answer "whether the employer's proffered reason for the employment action was its actual motivation"). If Cintas officials did not know about the resume problems Cintas now highlights when those officials made their decisions, the alleged problems could not have motivated the officials' decisions, and thus do not factor into the liability determination. The Supreme Court has made this precise point: "The employer could not have been motivated by knowledge it did not have." McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 360 (1995). In McKennon, the Court rejected the argument that information of misconduct the employer acquired after the plaintiff's discharge negated liability for discrimination. What was critical, stated the Court, was "the employer's motives" when it made the decision. Id. The Court did not hold evidence of misconduct wholly irrelevant, but explained that it only implicates "the specific remedy to be ordered," if the employer can establish the misconduct is of sufficient "severity." Id. at 360-63. Since McKennon, this Court has applied its central holding in a variety of situations. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 416 n.2 (6th Cir. 2004); Cavin v. Honda of Am., 346 F.3d 713, 718 n.3 (6th Cir. 2003); Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1168 (6th Cir. 1996); Quinn-Hunt v. Bennett Enters., 122 F.App'x 205, 207-08 (6th Cir. 2005). The district court briefly considered McKennon in an opinion issued in October 2008 (in case No. 06-12311, consolidated with the Serrano/EEOC case) where Cintas acquired after-the-fact evidence of a misrepresentation on one application. R.511 at 4-5. The court held that any reliance on McKennon was "misplaced," stating summarily: "At the prima facie stage, the burden is on Plaintiff to establish that he was objectively qualified for the position. Here, Plaintiff is unable to demonstrate his objective qualification for the SSR position [because of the misrepresentation]." Id. at 5. The court did not undertake to analyze the purpose of the prima-facie-case requirement or the meaning of McKennon, and it relied on the 2008 opinion to hold in EEOC's (Serrano) case that evidence Cintas unearthed during discovery obviated the need for any inquiry into the motives of Cintas' hiring officials. R.935 at 12 (citing R.511). The court's opinion plainly is at odds with McKennon. The evidence in this case is that before hiring an individual for an SSR position, Cintas checked driving records and administered a drug test. A-264-265 ¶7. Beyond the minimal background check, there is no evidence that, for example, Cintas ever checked the high school or college transcripts of male applicants, nor did Cintas require applicants to submit a transcript with their application. There is no evidence Cintas conducted extensive investigations to ascertain whether a male applicant's detail of his work experience was precise. Only in reaction to this litigation did Cintas probe into each female applicant's past, a practice about which the Supreme Court expressed its "not ... insubstantial ... concern that employers might ... undertake extensive discovery into an employee's background ... to resist claims under the Act." McKennon, 513 U.S. at 363. Regardless of Cintas' reasons for uncovering information about the female claimants, that information can serve to limit the claimants' relief if Cintas can show any omissions or misrepresentations were "of such severity" that it would not have hired the women had it known at the time of its decision. Id. at 362-63. Thus if Cintas can show that, for example, it would not have hired Raby solely because she did not mention she worked at a gas station for two weeks while looking for work, A-514 (Dep. at 33), then Raby would not be awarded relief from the time Cintas learned this information. McKennon, 513 U.S. at 362-63. What McKennon and its progeny instruct, though, is that any evidence Cintas uncovered long after its officials made their decisions cannot logically have motivated the officials and so does not speak to whether Cintas unlawfully discriminated against the female applicants. In holding to the contrary, the district court erred. B. The district court erred in according great significance to Cintas' after-the-fact explanations where no officials remember a claimant, nor do any contemporaneous records explain the claimants' rejections. Cintas has acknowledged its officials do not remember the female applicants and the reasons for their rejection. See, e.g., A-135. In order to meet the McDonnell Douglas/Burdine burden of proffering a legitimate, nondiscriminatory reason for the applicants' rejection, Cintas had its officials review the claimants' applications "in connection with this litigation." A-136. In particular, the officials looked over the women's applications, the applications of the men Cintas chose to hire instead, and the women's deposition testimony. E.g., A-326 ¶9. Each and every time, the officials' review of the materials led them to conclude that the men were "more qualified" than the women. A-142. Precisely what made the men more qualified varied somewhat from applicant to applicant, though there was one constant: the backgrounds of the men always made them more qualified than the women. Thus Cintas stated it considered Susan Barber, who had extensive sales experience in retail settings, less qualified than the men they hired because her experience was in retail. A-134. When evaluating Robin Leach, however, Cintas stated it considered Jason Muck more qualified because he had retail sales experience. A-250. Cintas rejected Leila Vitale in favor of Michael O'Keefe because he had owned a store. A-285-286. Yet Barber too owned a store, but was not qualified enough to be hired. A-167. Cintas rejected Gayle Bradstrom in favor of two men in part because the men had or were working towards a college degree. A-186. Gina Comiska had a college degree, but Cintas rejected her in favor of men who did not, John Butki and Kip Tyra. A-334; A-336; A-871. Comiska, according to Cintas, was less-qualified than Tyra because his prior employment "involved physical labor." A-311. When Patricia Washington applied, the physical labor component of her prior job still left her less qualified than a man who had owned a gift shop and worked as a financial services consultant. A-104-105. Finally, Cintas officials stated repeatedly that they "preferred candidates who previously held a route sales ... position," A-134, yet Cintas officials consistently deemed the female applicants with route sales experience - such as Bradstrom, Colfer, Vitale, and Washington - less qualified than the male applicants. The district court found nothing unsettling in Cintas officials, after the fact, deeming a particular qualification valuable in one case, but then insignificant in the next. The court stated that "there is nothing wrong with Cintas' proffered argument advancing reasons why it would not have hired [claimant]." E.g. R.931 at 16. While Cintas may be free to offer hypothetical explanations, the court should have assessed the explanations for what they are: hindsight opinions that valued one kind of experience or qualification when men possessed it, but not when women did. The court should have weighed the explanations accordingly. Cf. Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1398 (6th Cir. 1990) (articulated reasons are "transparently pretextual" and "tailored to the needs of the occasion" where qualifications changed after employer learned identity of candidates); see also Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (employer must be able to establish "its reasonable reliance on the particularized facts that were before it at the time the decision was made"). C. The district court erred by failing to accord EEOC's statistical evidence, evidence of comments by Cintas officials and applicants evincing a "male- only" mindset, and comparative evidence any weight even though that evidence was probative of pretext. In addition to misapprehending EEOC's prima facie burden for eight of the claimants, the district court failed in all cases to give proper weight to EEOC's pretext evidence. A plaintiff may show pretext by producing evidence that the employer's explanation is unworthy of credence. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147-48 (2000). EEOC's statistical, anecdotal, and comparative evidence cast doubt on Cintas' explanation that each female claimant was less well-qualified than the man or men hired in her stead. The court erred in disregarding this probative evidence of pretext, which should have precluded the court from granting Cintas summary judgment. 1. Statistical evidence was probative of pretext In each of the 13 decisions on the individual claimants, the district court utterly discounted the probative value of EEOC's statistical evidence. E.g., R.934 at 20-22. That evidence showed Cintas' underhiring of women for SSR positions was "extreme" over a 4-year period, and "extensive" for the ensuing two-and-a- quarter year period. A-633. The underhiring over the entire time period analyzed would have occurred by chance less than one in a trillion times, or one in a billion times, depending on the female availability measure used. A-642. The district court accorded this evidence of gender discrimination across all Michigan locations no weight whatsoever in assessing the 13 individual hiring decisions, as if the statistical evidence made it no more likely than not that gender played a role in those decisions. By ignoring the evidence, the court erred: it has long been recognized that statistics, because they can make it more likely that an individual decision was infected with gender bias, should be considered in the mix of a plaintiff's pretext evidence. See Sims v. Cleland, 813 F.2d 790, 794 (6th Cir. 1987) (in attempt "to prove pretext under [McDonnell Douglas] formula, a plaintiff is free to offer ... statistical evidence tending to establish sex-based animus"); see also McDonnell Douglas, 411 U.S. at 804-05 (statistics useful at pretext stage to determination of whether individual decision conformed to general pattern of discrimination); Bender v. Hecht's Dep't Stores, 455 F.3d 612, 622 (6th Cir. 2006) (statistical data showing pattern of conduct towards class can, if unrebutted, create inference defendant discriminated against individual members of class); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1390 (6th Cir. 1993) (plaintiff may use statistics to show "he has been discriminated against"); Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1990) (statistical evidence can create inference employer discriminated against individual members of same class); Bell v. EPA, 232 F.3d 546, 553 (7th Cir. 2000) (statistics "relevant to and probative of the issue of pretext"). The district court made three critical errors in deciding to accord no significance to the statistics. First, the court stated that statistics "standing alone" cannot establish individual disparate treatment. E.g. R.934 at 20 (quoting Bowdish v. Continental Accessories, Inc., 1992 WL 133022, *5 (6th Cir. 1992)). EEOC does not disagree with this statement. Statistics alone cannot explain why an employer rejects a particular applicant. But statistics are relevant, as this Court has held, for statistical evidence is circumstantial evidence "making discrimination more likely," and "coupled with other circumstantial evidence" can show pretext. Cicero v. Borg-Warner Automotive, 280 F.3d 579, 592-93 (6th Cir. 2002) (state law case); see also McDonnell Douglas, 411 U.S. at 804-05; Sims, 813 F.2d at 794; Riordan v. Kempiners, 831 F.2d 690, 698 (7th Cir. 1987) (noting all courts view statistics admissible "to show intentional discrimination against an individual plaintiff"). What statistics do is put hard numbers behind the assertion that an employer is discriminating; as the Seventh Circuit put it: "All evidence is probabilistic - statistical evidence merely explicitly so." Riordan, 831 F.2d at 698. Further, because of their objective nature, statistics can help courts evaluate a subjective employment decision without probing into the merits of that decision. Lynn v. Regents of Univ. of Calif., 656 F.2d 1337, 1343 (9th Cir. 1981) (use of statistics allows court "to steer a careful course between excessive intervention in the affairs of the [employer] and the unwarranted tolerance of unwanted behavior proscribed by Title VII") (internal quotations omitted). Second, the district court criticized EEOC for attempting "to bootstrap a pretext finding ... from statistics" from other locations and other times. E.g. R.934 at 21. It is unclear how Cintas is helped by confining the analysis to particular locations. At Location 31 (Madison Heights), for example, where Bradstrom, Colfer, Harrington, and Kremhelmer applied, Cintas made 63 SSR hires from '99- '05Q1. All 63 hires were men. A-639. "When these kinds of figures speak a court would have to be deaf not to hear." Gamble v. Birmingham S. R.R., 514 F.2d 678, 683 (5th Cir. 1975). In any event, DiPrete's report addressed the issue of different hiring locations, noting that data at each Michigan location was similar to the overall statewide data, even though "hiring was done at specific locations, each of which had its own local labor market." A-634, A-640. Moreover, courts have recognized that statistics derived from decisions made at other locations and by different officials are relevant to the pretext analysis in an individual case, for "[o]ne way of reaching conclusions about an employer's motives is by ascertaining whether the employer's explicit or implicit policies encourage or permit discriminatory employment decisions by its supervisory personnel" across different geographic locales. Diaz v. AT&T, 752 F.2d 1356, 1363-64 (9th Cir. 1985). As for the fact that the statistics cover several years, it makes little sense to say that a statistical analysis must be confined to the narrow time period of a particular hiring decision. To the contrary, statistics must cover a "sufficiently long period of time" to be reliable. Sweeney v. Bd. of Trustees of Keene State College, 604 F.2d 106, 113 n.11 (1st Cir. 1979).<14> Finally, the district court critiqued the female availability figure used by DiPrete, stating that "clearly" EEOC's figures "overly inflate female availability for SSR positions." E.g. R.934 at 22. There is nothing "clearly" problematic with DiPrete's carefully-derived female availability figures. The district court superficially discussed only the first (of four) methods DiPrete used to reach a female availability figure - the weighing of Census code 913. DiPrete explained that he decided against using the percentage of females in code 913 because only 21% of SSRs came from a job falling in that code. Instead DiPrete thought it most accurate to weigh each job category based on the number of people Cintas actually hired from that job category, given that SSRs, as an entry-level-type job, come from a wide range of feeder jobs. DiPrete elected to be conservative and weigh code 913 based on all hirees who had ever worked in that job category (rather than who came directly from a code 913 job). DiPrete thus gave code 913 a weight of 33%, rather than 21%. The district court faults DiPrete for factoring in jobs such as teachers, artists, clergy, and cooks into the final availability figure. R.934 at 21. DiPrete factored in these jobs because a few people actually came directly from them. More significantly, what the court neglects to explain is that DiPrete gave each of these job categories a miniscule 0.29% weight (to reflect the small number of hirees from those positions). Combined, DiPrete accorded these four job categories only a total 1.16% weight. By contrast, DiPrete gave "Parts Salesperson" a 3.48% weight, "Customer Service Representatives" a 6.67% weight, "Freight, Stick and Material Movers" a 2.61% weight, and "Sales Representatives, Wholesale and Manufacturing" a 2.32% weight. These four job categories, combined, had a 15.08% weight. Using this careful method of weighing, DiPrete arrived at a 27% female availability figure. Tellingly, the other methods DiPrete used to estimate female availability - methods derived from applications Cintas received - confirmed the 27% availability figure DiPrete derived from the weighing method. Under all methods of assessing availability, Cintas underhired women by wide, statistically-significant margins. Even self-reporting (which could not account for female deterrence and raised questions reporting inaccuracies) revealed underhiring at significant levels. Although DiPrete is widely respected in his field and his report persuasively explains the high statistical likelihood that Cintas' underhiring of women was the result of factors other than chance, a fact finder is free to disagree with DiPrete's method. But it is for a jury, not the district court, to "weigh[] the credibility of the competing expert reports [because such weighing] amounts to improper fact- finding." Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005); see also id. (competing expert opinions present "classic battle of the experts" and it is for jury to evaluate merit of each). The case relied on by the district court, Long v. City of Saginaw, 911 F.2d 1192 (6th Cir. 1990), does not undermine this principle, for it involved no expert report. To the contrary, this Court criticized the City of Saginaw for defending its affirmative action plan from constitutional challenge without "incorporat[ing] any statistical source material" into the record. Id. at 1199-1200. Here EEOC provided a thorough statistical assessment of Cintas' hiring patterns in its expert's report. The district court invaded the province of the jury by deeming it unworthy of merit. 2. Anecdotal evidence evincing a "male-only" culture was probative of pretext EEOC produced evidence of comments from the company president, hiring officials, and female applicants reporting what various Cintas personnel told them about the all-male ethos across Michigan locations. Those comments included hiring official Mark Gerhard's depiction of an atmosphere in which the SSR job was considered "man's work." They included hiring official Roger Farver's confession that he "probably thought" the SSR position was "a man's job." They included applicant Kristen Foley's statement that the human resources manager, a hiring official, told her the SSR position was a "masculine job." They included female SSR applicants' reports that Cintas employees tried to steer them towards jobs in sewing, laundry, factory, inside sales, or clerical work. Finally, the comments included CEO Farmer's apparent concession that Cintas managers were not hiring women because of a widespread "myth" about women's ability to perform the SSR job. The district court gave this evidence - evidence of a problem at Cintas locations across Michigan - no weight. In so ruling, the court made some of the same mistakes that plagued its ruling on statistics. The court acknowledged Sixth Circuit precedent that comments evincing "a discriminatory atmosphere" in a workplace may combine with other evidence to show pretext. E.g. R.929 at 14 (quoting Risch v. Royal Oak Police Dep't, 581 F.3d 383 (6th Cir. 2009)). But the court dismissively rejected the comments' value on the grounds that anecdotal evidence "standing alone" cannot show pretext, nor can "[o]ther location" or "other time" decisions be relevant to the analysis of a particular hiring decision. R.929 at 14-15. Of course, EEOC does not rely on comments alone to show pretext; the comments that Cintas employees widely considered SSRs a male-only position buttress the statistics showing a lack of female hiring and the comparative evidence about the qualifications of women rejected vis-à-vis men hired. Several of the comments were made by hiring officials at the same locations where EEOC's claimants applied but were rejected. For example, Holly Woonton's statement that the SSR position was a "masculine job" may have infected her assessment of the applications of Barber, Bradstrom, Colfer, Comiska, Harrington, Kremhelmer, and Thompson. Mark Gerhard screened applications at the same location and during the same time period that Vitale and Washington applied. Roger Farver worked at Madison Heights, where Bradstrom, Colfer, Harrington, and Kremhelmer applied. Comments by individuals who "may have played a role" in a decision or who were "in a position to shape the attitudes ... and decisions" of hiring officials plainly are relevant in evaluating those decisions. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998). For this reason alone, the district court erred in disregarding the evidence. While statements by decision-makers or those in a position to influence them obviously are of high probative value, this Court has held that "the absence of a direct nexus does not necessarily render a discriminatory remark irrelevant." Id. at 355. The district court utterly disregarded this Court's thoughtful opinion in Ercegovich, where the Court explained why and how comments without a direct nexus may be relevant to individual hiring decisions. As the Court put it, "[c]ircumstantial evidence establishing the existence of a discriminatory atmosphere at the defendant's workplace ... may serve as circumstantial evidence of individualized discrimination directed at the plaintiff." Id. at 356; see also Risch, 581 F.3d at 393 (quoting Ercegovich). As the Court explained, evidence of a discriminatory atmosphere is not conclusive proof of a discriminatory decision, but it "does tend to add 'color' to the employer's decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff." Ercegovich, 154 F.3d at 356; see also id. (referring to comments that could cause a trier of fact "to raise an eyebrow"). Ercegovich rejected the contention that decisions made at other times or in other places have no value. The district court here revived that notion, but it cannot be squared with Ercegovich, where this Court held that "evidence of a corporate state-of-mind or a discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific events that generated a claim of discriminatory treatment." Id. (internal quotation omitted); see also id. (consideration of impermissible factor in one context may support inference that impermissible factor entered into decision- making process in another context); Risch, 581 F.3d at 393 (same). In holding otherwise, and in disregarding evidence attesting to the prevalence of a discriminatory atmosphere across Cintas' Michigan locations, the court erred. 3. Comparative evidence indicating Cintas rejected highly-qualified female applicants in favor of less-qualified male applicants was probative of pretext EEOC presented evidence that female applicants possessed qualifications equal or superior to those of male applicants who were hired. This comparative evidence, considered against the backdrop of a pattern of rejecting female applicants and evidence that the SSR position was widely thought to be male-only, comprised evidence of pretext that should have precluded summary judgment. The district court recognized the force of EEOC's comparative evidence, acknowledging, with respect to Colfer, for example, that "perhaps her route experience would have looked more favorable than Mr. Dantzer's lack of such experience. And perhaps Mr. Wright's experience in the carpentry field was less than optimal preparation for a laundry route." A-893. Yet the court said it would not undertake a "side-by-side comparison[]" because it did not wish to "second- guess[]" Cintas' hiring decisions. A-893-894 (citing Bender, 455 F.3d at 628). In refusing to consider the qualifications evidence as probative of pretext, the court erred. This Court, in Bender, explicitly "reject[ed] ... a rigid rule that qualifications evidence is never probative of pretext." 455 F.3d at 628 (citing Burdine). Bender also rejected the notion that a "business-judgment rule [should] shield employers from claims of discrimination." Id.; see also Wright, 455 F.3d at 708 ("Although we will not micro-manage the process used by employers in making their employment decisions, we also will not blindly assume that an employer's description of its reasons is honest.") (internal quotations omitted); Wexler, 317 F.3d at 576 ("An employer's business judgment ... is not an absolute defense to unlawful discrimination."). Bender held that the value of comparative qualifications evidence will depend upon the existence of other evidence of discrimination. Where there is no other evidence, the qualifications evidence "must be of sufficient significance itself to call into question the honesty of the employer's explanation." 455 F.3d at 627. But where, as here, the plaintiff provides "other probative evidence of discrimination, that evidence, taken together with evidence that the plaintiff was as qualified or better qualified than the successful applicant, might well result in the plaintiff's claim surviving summary judgment." Id. at 626-27. Bender noted that "other evidence" could be no more than evidence of "irregularities in the application and selection process, inconsistencies in the reasons given ... for not hiring her, and the lack of African-American women in supervisory positions." Id. at 627 (internal quotations omitted). Here EEOC provided considerably more; it provided evidence that Cintas underhired women at an "extreme" and then an "extensive" level during the same period as the individual decisions, and EEOC provided evidence of managers' views that only men were qualified to be SSRs. The court therefore should have considered the comparative qualifications of the male and female applicants.<16> The district court erred in a second important respect: it imposed a now- discredited "pretext-plus" standard on EEOC. The court held that "[e]ven assuming the EEOC could show that Cintas' purportedly legitimate, nondiscriminatory reasons for not hiring Ms. Colfer were pretextual, the EEOC has failed to offer any evidence ... that these reasons were a pretext for gender discrimination." A-894. It is unclear what more the district court would have EEOC show. If EEOC presents evidence that the "better qualified" explanation for each woman is false, it presumably has shown that the relative qualifications of each, considered against the backdrop of the statistics and evidence of a male-only culture, are sufficient evidence from which to infer Cintas' explanation is false. At summary judgment, this evidence of pretext should end the inquiry because it would allow the trier of fact to decide the ultimate question: whether Cintas discriminated against female applicants. The court's requirement that EEOC produce something more comprised reversible error. This Court has held squarely that once the employer proffers a legitimate reason for its action, the burden shifts back to the plaintiff to "come forward with evidence that the company's reason for the employment action is false, [but plaintiff] need not present independent evidence that the proffered reason is a pretext for [sex] discrimination." Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 434 (6th Cir. 2002) (citing Reeves, 530 U.S. at 148); see also Chen v. Dow Chem., 580 F.3d 394, 400 & n.4 (6th Cir. 2009) ("[t]o carry her burden in opposing summary judgment, Chen must produce sufficient evidence from which a jury could reasonably reject Dow's explanation of why it fired her"); Kline v. TVA, 128 F.3d 337, 347 (6th Cir. 1997) (once plaintiff "has disproved the reasons offered by the defendant, the factfinder is permitted to infer discrimination" and plaintiff need not "introduce additional evidence of discrimination to prevail on the merits"). Hopson, Chen, and Kline are consistent with a line of Supreme Court cases explaining that the prima facie case and evidence that the employer's proffered reason is not the real reason for its decision (that is, evidence of pretext) are sufficient to show discrimination. See Hicks, 509 U.S. at 511 ("factfinder's disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination"); see also id. ("rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination"); Reeves, 530 U.S. at 147 (permissible for "trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation"). The district court erred when it held, on summary judgment, that evidence of pretext is not evidence of gender discrimination. V. The District Court abused its discretion by limiting EEOC's discovery. A district court's discovery orders are reviewed for abuse of discretion. Audi AG v. D'Amato, 469 F.3d 534, 541 (6th Cir. 2006). It is an abuse of discretion to "rely on erroneous findings of fact, apply the wrong legal standard, misapply the correct legal standard, or make a clear error in judgment." Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, 583 F.3d 948, 953 (6th Cir. 2009). In three rulings, the court here abused its discretion by imposing legally erroneous discovery limitations. A. The magistrate abused his discretion by precluding the deposition of Scott Farmer, because he possessed relevant information and Cintas failed to show his deposition would pose an undue burden. EEOC learned that in a 2003 speech at an annual management meeting, Scott Farmer, Cintas' President and CEO, expressed concern about widespread sex discrimination in SSR hiring. Farmer admonished Cintas' managers to "put the myth that females cannot be SSRs out of your mind and hire more women SSRs." A-32. He told managers, "[Cintas] must make a concentrated effort to increase [its workforce diversity]." A-31. Farmer highlighted how one location, in San Leandro, had eschewed gender stereotypes, having "six of the location's 28 routes ... run by female SSR's," and discussed the positive results that flowed, noting that "female SSR's consistently perform in the top 20% in all areas." A-32. He assured his audience that female SSRs "are absolutely dependable day in and day out" and that "there is no evidence of a lack of ability to do the work." A-33. EEOC sought to depose Farmer to ask questions related to the speech, and to his knowledge of hiring practices from his position heading the diversity committee. The magistrate refused to allow a deposition under any terms, instead granting a protective order precluding the deposition. In so ruling, the magistrate adopted a standard for CEO depositions more demanding than contemplated by the discovery rules, a standard that impermissibly shifted the burden to EEOC to show why a protective order should not be granted. The magistrate erred as a matter of law, and thus abused his discretion. See Bridgeport Music, 583 F.3d at 953. A party is entitled to depose a person with information relevant to the party's claims or defenses. Fed.R.Civ.P. 26(b), 30(a). Relevancy under the rules is very broad: the party seeking the deposition must show only that the "discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1); see also Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 & n.12 (1978) (courts should interpret "'relevant' very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation"); Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998) (scope of discovery is "quite broad"). Farmer's 2003 speech plainly is relevant, for he was discussing Cintas managers' rejection of women for SSR positions based on gender stereotypes. A- 32. The magistrate dismissed his comments as "[i]solated general statements." R.831 at 6. But how and why Farmer reached those conclusions pose questions that lie at the heart of this case. See Marisco v. Sears Holding Corp., 370 F.App'x 658, 664-65 (6th Cir. 2010) (district court abused discretion in disallowing deposition of high executive officials, for no one but executives can explain "the context and circumstances in which [arguably ageist] comments were made"); see also Ercegovich, 154 F.3d at 354 (noting importance of comments about discrimination by high-level official who is "in a position to shape the attitudes, policies, and decisions of the division's managers"). Farmer also "personally chair[s]" Cintas' diversity committee and has exhorted his personnel to "focus[] on diversity." A-35. How and why Farmer came to believe that Cintas must improve its hiring of women also is relevant to this case. Indeed, Cintas itself conceded that Farmer had relevant information, placing him first on a list of nine people "who have knowledge of some of Cintas's hiring and promotion practices, and some diversity efforts." A-23. That a deposition of Farmer would "appear[] reasonably calculated to lead to the discovery of admissible evidence," Fed.R.Civ.P. 26(b)(1), is manifestly evident. Moreover, evidence that managers might be rejecting female applicants based on gender stereotypes is relevant both to show a pattern or practice of discrimination and to show Cintas discriminated against individual women. See, e.g., Bacon, 370 F.3d at 575 ("pattern-or-practice evidence may be relevant to proving an otherwise-viable individual claim for disparate treatment under the McDonnell Douglas framework"). Despite the relevant information Farmer appeared to possess, the magistrate blocked his deposition based on a special exception for CEOs not found in the discovery rules-known as the apex doctrine. The magistrate stated that because of the "unique and important position of chief executive officers, and the potential for harassment and abuse inherent in subjecting them to discovery burdens," a party seeking discovery of "such high officials" must "first demonstrate that the proposed deponent has 'unique personal knowledge' of facts relevant to the dispute." R.831 at 4. Contrary to the magistrate's understanding, this Court has never embraced the apex doctrine. See R.831 at 3 (citing Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1999), and Lewelling v. Farmers Ins. of Columbus, 879 F.2d 212, 218 (6th Cir. 1989)). Neither Bush nor Lewelling adopted a special rule for high-level company officials, but simply applied the existing federal discovery rules. See Lewelling, 879 F.2d at 218 (CEO's deposition denied where he had no knowledge of pertinent facts); Bush, 161 F.3d at 367 (affirming decision to limit high-level executives' depositions in time and scope). Many courts have rejected the apex doctrine because it is both unsupported by the discovery rules and unwarranted. See FTC v. Bisaro, __ F.Supp.2d __, 2010 WL 4910266, at *7 (D.D.C. 2010) (rejecting application of apex doctrine to preclude deposition of high-ranking official and noting that doctrine has "very limited application"); Turner v. Novartis Pharms., 2010 WL 5055828, at **2-3 (E.D. La. 2010) (rejecting any per se apex doctrine because "there is no rule that prohibits the deposition of a high-ranking corporate official;" depositions permissible when high-level official's conduct or knowledge is relevant); Gauthier v. Union Pac. R.R., 2008 WL 2467016, at *4 n.2 (E.D. Tex. 2008) (rejecting "rigid 'apex doctrine'" because case is governed by federal discovery rules, where no apex doctrine is found); Van Den Eng v. Coleman Co., 2005 WL 3776352, at *2 (D. Kan. 2005) (rejecting apex doctrine because court "is unaware of any federal case, interpreting the Federal Rules of Civil Procedure, that has adopted such an absolute threshold test that must be met before Apex Officials can be deposed"). This Court likewise should reject the apex doctrine in favor of a straightforward application of the discovery rules-regardless of the position of the person from whom discovery is being sought. The existing discovery rules provide sufficient protection for the interests addressed by the apex doctrine without endorsing a categorical bar. A high-level official with relevant knowledge can be shielded from a deposition if it subjects him to "annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1). The party seeking protection has "the burden of establishing good cause for the protective order." Nix v. Sword, 11 F.App'x 498, 500 (6th Cir. 2001). Cintas made no such showing, arguing only that Farmer's duties are "extremely time-consuming, and involve extensive travel." R.816 at 8. But Farmer's executive status alone, absent the requisite Rule 26 showing, does not render him immune from discovery, and an executive's "busy schedule cannot shield that witness from being deposed." Six West Retail v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 102 (S.D.N.Y. 2001). Furthermore, if a deposition would be burdensome to Farmer, it should not be prohibited altogether. Rather, it should be circumscribed to protect from undue burden. Fed.R.Civ.P. 26(c)(1); see also Bush, 161 F.3d at 367 (limiting time and content of company president's deposition strikes proper balance); Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) ("very unusual" for court to prohibit deposition altogether "and absent extraordinary circumstances, such an order would likely be in error"). EEOC was willing to accept limits on the length and location of the deposition. A-17. Prohibiting it altogether, under these circumstances, was an error. Instead of applying the proper test and burden under Rule 26, the magistrate erroneously required EEOC to show that Farmer had "unique personal knowledge" to defeat the protective order. R.831 at 6. Even if the "unique personal knowledge" test of the apex doctrine applied, the magistrate should have allowed Farmer's deposition. Farmer did possess unique personal knowledge about the practice of not hiring female SSRs: he spoke about stereotypes affecting female SSR hiring, he chaired the diversity committee, and Cintas conceded he had relevant information about its hiring practices. The magistrate, however, required EEOC to show not only that Farmer had unique knowledge, but also that he had unique knowledge of the specific situations of the named class members, knowledge he claims not to possess. Even if this Court assumed that Farmer had no specific knowledge, which it should not, see Six West, 203 F.R.D. at 102 ("where ... high- ranking corporate officer denies personal knowledge of the issues at hand, this claim ... is subject to testing by the examining party"), the magistrate's ruling went too far. Under the magistrate's logic, if Farmer had ordered managers not to hire women but knew nothing of any specific hiring decision, EEOC could not depose him. But even the stringent apex doctrine is satisfied when the proposed deposition would focus on Farmer's "unique" knowledge of relevant information-Cintas's practice of not hiring females as SSRs based upon gender stereotypes. See HCP Laguna Creek v. Sunrise Sr. Living Mgmt., 2010 WL 890874, at *4-5 (M.D. Tenn. 2010) (deposition directed at questioning CEO about specific conversations satisfied "unique knowledge" requirement). B. The district court abused its discretion when it refused to compel Cintas to produce unredacted applications. During discovery, EEOC requested that Cintas provide various employment applications. R.759, Ex.1. Cintas produced the requested applications, but in doing so, redacted key information, including the last names, addresses, telephone numbers, and social security numbers from many of them. R.759 at 4-5. The redactions prevented EEOC from contacting the rejected female-applicants to learn about their circumstances and determine whether they were rejected because of sex discrimination. Cintas nonetheless refused to provide unredacted applications, and EEOC moved to compel. R.814. The assigned magistrate ruled that Cintas did not have to provide unredacted applications because, according to the magistrate, "EEOC did not plead a cause of action under 42 U.S.C. §2000e-6 and therefore, was never entitled to discovery in support of a pattern and practice theory," and that "at this point in the litigation" the "burden and expense of producing documents from Cintas locations not associated with current claimants outweighs the potential for identification of additional claimants." R.807 at 2-3. The district court concurred. R.843, R.938. The district court abused its discretion by making three errors of law. First, as discussed above, EEOC properly sought to prove a pattern or practice of sex discrimination. If the §§706/707 or complaint amendment rulings are reversed, EEOC plainly would be entitled to the unredacted information because contacting the other women could help EEOC prove there was a larger pattern or practice of discrimination. Second, evidence of sex discrimination against other applicants is relevant to prove individual discrimination because "pattern-or-practice evidence may be relevant to proving an otherwise-viable individual claim for disparate treatment under the McDonnell Douglas framework." Bacon, 370 F.3d at 575; see also Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991) ("well-settled" that information concerning "employer's general employment practices is relevant even to a Title VII individual disparate treatment claim"). The district court downplayed this Court's clear statement in Bacon, deeming it mere dicta and stating that, in any event, "Bacon does not stand for the proposition that such evidence is always relevant." R.843 at 6. That is beside the point. "Relevant information," for discovery, "need [only be] reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The district court also relied on Scales for the proposition that where "'employment decisions were made locally, discovery may be properly limited to the employment unit.'" R. 843 at 6 (quoting Scales). But Scales upheld limited discovery because the allegation was that one supervisor on three separate occasions hired a man instead of the plaintiff to fill a position. 925 F.2d at 906-07. That is, under the plaintiff's own theory, the scope of the discrimination was limited to one person, and it therefore made sense to limit discovery the location where it occurred. Here, the allegation is that Cintas engaged in widespread sex discrimination that injured individual women. Whether other women also were victimized by discrimination plainly is relevant to EEOC's claim. Third, the district court erred in concluding that production of unredacted applications would be burdensome even though Cintas failed to show that production would create any burden at all. The court reasoned that "while Cintas may not have addressed the 'burden' that the ... request would create during its briefing, the argument was raised by Cintas at oral argument," specifically noting that Cintas argued that it would be an "extraordinary burden" and "extraordinarily expensive." R.843 at 4; R. 938 at 4. The "mere statement" by Cintas that a request for production is burdensome "is not adequate." Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982). On the contrary, the "party resisting discovery must show specifically how each [request for production] is not relevant or how each question is overly broad, burdensome or oppressive." McLeod, Alexander, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). Cintas did not show-nor could it show- that producing unredacted applications was burdensome. Redacting takes extra effort; the failure to redact takes none. Indeed, Cintas itself used some of the very sought-after unredacted applications in a later deposition, demonstrating both that the unredacted applications were relevant and that producing them posed no burden. R.839 at 2-3. C. The district court abused its discretion by denying EEOC's motion to extend discovery. For nearly a decade-from April 2000, when Serrano filed her charge, to EEOC's intervention in this litigation in November 2005, until the district court's decision in February 2010-EEOC investigated and litigated this matter as a class- wide discrimination case to be proved under the Teamsters pattern-or-practice framework. On February 9, 2010-just weeks before the close of discovery-the district court radically altered the contours of the case when it held that EEOC could not pursue this case under Teamsters but must instead pursue it under McDonnell Douglas. Until the drastic change, EEOC was prepared to meet the previously-established May 10, 2010, discovery deadline. After the February order, EEOC faced the prospect of proving sex discrimination through scores of individual disparate treatment cases, rather than the Teamsters framework for which it had spent years preparing. EEOC realized it would be unworkable to develop cases for all potentially-injured female applicants in the short discovery period remaining, and so it immediately (on February 17, 2010) moved for a discovery extension. R.731. The district court denied EEOC's motion. R.783. EEOC diligently pursued discovery and sought an extension only because of the court-imposed shift in the method of proving its case. See Plott v. General Motors Corp., 71 F.3d 1190, 1197 (6th Cir. 1995) ("overarching inquiry in [deciding to extend discovery] is whether the moving party was diligent in pursuing discovery"). Because the order and not EEOC's dilatoriousness precipitated the need for an extension, the district court abused its discretion by refusing to extend discovery. Cf. Garrett v. City & County of San Francisco, 818 F.2d 1515, 1518-19 (9th Cir. 1987) (district court improperly denied Rule 56(f) motion where Title VII plaintiff diligently pursued discovery but was unable to obtain complete responses within original time frame). CONCLUSION We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel s/ Jennifer S. Goldstein JENNIFER S. GOLDSTEIN ERIC A. HARRINGTON Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 24,415 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I have filed a motion to file an oversize brief concurrently with this brief. s/ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that on March 16, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system. s/ Jennifer S. Goldstein ADDENDUM Designation of Relevant District Court Documents Not Under Seal ------+----------------------------------------------------------------------- Docket| Description No. | ------+----------------------------------------------------------------------- 1 | Complaint Filed by Mirna E. Serrano 47 | Cintas Corporation's Memorandum in Opposition to Plaintiff's Motion | for Leave to File a Second Amended Complaint 48-2 | Notice of Charge of Discrimination 48-3 | Exhibit B - Letter to Robert Maxwell from EEOC of 6/1/2000 48-4 | Exhibit C - Letter to Robert Maxwell from EEOC of 8/1/2000 48-5 | Exhibit D - Letter to EEOC Investigator from Neil Sarkar of 6/21/2000 48-6 | Exhibit E - Letter to EEOC Investigator from Neil Sarkar of 8/17/2000 48-7 | Exhibit F - EEOC Subpoena to Cintas of 3/21/2001 48-8 | Exhibit G - Respondent's Petition to Revoke or Modify Subpoena and | Memorandum in Support 48-9 | Exhibit H - Determination on Respondent's Petition to Revoke or | Modify Subpoena of 4/25/2001 48-10 | Exhibit I - Letter to Deborah Barno, EEOC Sr. Trial Attorney, from | Robert Maxwell of 6/29/2001 48-11 | Exhibit J - Letter to Robert Maxwell from EEOC of 1/22/2002 48-14 | Exhibit M - Letter to Thomas Frooman, Cintas General Counsel, from | EEOC Investigator, of 10/10/2002 49-2 | Exhibit A - Letter to Frances Angiano, EEOC Investigator, from | Seyfarth Shaw of 11/4/2002 49-3 | Exhibit B - Letter to Seyfarth Shaw from Peter Morelli, EEOC | Supervisory Investigator, of 6/27/2005 70 | | Second Amended Complaint and Jury Demand 98 | | EEOC's Complaint in Intervention and Jury Trial Demand 338 | | Defendant Cintas Corporation's Motion for Summary Judgment on All | Claims Brought on Behalf of Class Members Applying Outside the State | of Michigan 511 | | Order Overruling Plaintiffs' Objections to Magistrate's Report and | Recommendation [Doc. No. 439] and Granting Cintas' Motions for | Partial Summary Judgment [Doc. Nos. 227, 237] 627 | | Order Denying Motions to Certify Class and Motions to Strike 646 | | Scheduling Order 647 | | Order Regarding Briefing on Proposed Scheduling Order 650 | | Amended Third Party Complaint by EEOC and Jury Trial Demand 651 | | EEOC's Brief on Proposed Scheduling Order Pertaining to the Claims of | Private Plaintiffs in the Serrano Case 653 | | Cintas' Supplemental Brief re: Order Regarding Proposed Scheduling as | to Individual Claims of Plaintiffs Serrano, McVay and Allen 660 | EEOC's Motion to Clarify Scheduling Order 662 | Defendant Cintas Corporation's Motion for Judgment on the Pleadings | with Respect to Plaintiff-Intervenor's Pattern or Practice Discrimination | Claim, With Attached Brief in Support 664 | EEOC's Response to Cintas' Motion for Judgment on the Pleadings 723 | Opinion & Order Granting Defendant's Motion for Judgment on the | Pleadings [Doc. No. 662] 725 | Opinion & Order Denying as Moot EEOC's Motion to Clarify | Scheduling Order [Doc. No. 660] 728 | EEOC's Motion to Amend Order to Add Certification Pursuant To 28 | U.S.C. § 1292(b) 731 | EEOC's Motion for Extension of Discovery 735 | Order Granting Defendant Cintas Corporation's Motion to Compel | Production of Plaintiff-Intervenor's Documents and Responses to | Defendant's Discovery Requests 752 | Opinion & Order Denying the EEOC's Motion to Amend Order to Add | Certification Pursuant to 28 U.S.C. § 1292(b) [Doc. No. 728] 759 | Motion to Compel by Equal Employment Opportunity Commission 765 | Plaintiff EEOC's Second Motion to Amend Complaint 781 | EEOC's Motion to Extend Discovery 783 | Opinion & Order Denying the EEOC's Motion to Extend Discovery | [Doc. No. 731] 807 | Order Denying Motion to Compel [Doc. No. 759] 814 | EEOC's Objection to Magistrate Judge's Order Denying Motion to | Compel [Doc. No. 807] 816 | Defendant Cintas Corporation's Motion for Protective Order With | Attached Brief in Support 829 | Opinion & Order Denying the EEOC's Second Motion to Amend | Complaint [Doc. No. 765] 831 | Order Referring Cintas' Motion for Protective Order for Hearing, dated | June 10, 2010 836 | Defendant Cintas Corporation's Omnibus Motion for Summary | Judgment as to the EEOC's Claims on Behalf of Susan Barber, Gayle | Bradstrom, Christine Colfer, Gina Comiska, Kari (Denby) Kremhelmer, | Tracy (Gerke) Williamns, Leila (Houston) Vitale, Miranda Hurley, | Robin Leach, Susan (Majewski) Harrington, Frances O'Neal, Diana | Raby, Lori Schelske, Tanya Thompson, and Patricia Washington 836-5 | Exhibit 3 - Deposition Excerpts of Linda Sankovich 839 | EEOC's Supplemental Brief re: Objection to Magistrate Judge's Order | Denying Motion to Compel [Doc. No. 807] 843 | Order Overruling EEOC's Objection to Magistrate Judge's Ruling on | Motion to Compel [Doc. No. 814] 876-3 | Exhibit A - EEOC v. KECO Industries, Jurisdiction and Venue 876-6 | Exhibit 2 - Determination by EEOC on Serrano Charge No: 230-A0- | 0845 of 7/03/2002 876-7 | Exhibit 3 - Conciliation Agreement Between Mirna Serrano and Cintas 876-8 | Exhibit 4 - EEOC Letter to Seyfarth Shaw re: Serrano v. Cintas from | James Neely, District Director, of 4/14/2005 876-10| Deposition Excerpts of Frances Angiona dated April 5, 2007 876-11| Deposition Excerpts of Peter Morelli dated April 25, 2007 884 | EEOC's Response to Cintas's Motion to Dismiss All Claims of Plaintiff | Mirna E. Serrano With Prejudice 923 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Susan Majewski Harrington [Doc. No. 856] 924 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Tracy Gerke Williams [Doc. No. 848] 926 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Tanya Thompson [Doc. No. 871] 927 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Patricia Lee Washington [Doc. No. 854] 928 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Leila Vitale [Doc. No. 867] 929 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Robin Leach [Doc. No. 862] 930 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Gina Comiska [Doc. No. 873] 931 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Susan Barber [Doc. No. 858] 932 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Diana Lee Raby [Doc. No. 869] 933 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Lori Schelske [Doc. No. 852] 934 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Kari Denby Kremhelmer [Doc. No. 864] 935 | Opinion & Order Granting Defendant's Motion for Summary Judgment | re: Gayle Bradstrom [Doc. No. 859] 936 | Opinion & Order Granting Defendant's Omnibus Motion for Summary | Judgment [Doc. No. 836] 937 | Opinion & Order Granting Defendant's Motion to Dismiss All Claims of | Plaintiff Mirna E. Serrano [Doc. No. 881] 938 | District Court Order Overruling EEOC's Objection to Magistrate Judge's | Order Denying Motion to Compel [Doc. No. 814] 940 | Amended Opinion & Order Denying the EEOC's Second Motion to | Amend Complaint [Doc. No. 765] 941 | Judgment Dismissing Plaintiffs' Complaint With Prejudice of October | 18, 2010 943 | Motion for Attorney Fees and Costs Pursuant to 42 U.S.C. § 2000e-5(k) | by Cintas Corporation 1070 | Notice of Appeal ********************************************************************************** <> <1> "R.*" refers to the docket entry number in the district court docket sheet. The docket sheet is included in the Appendix, paginated as "D-*." "A-*" refers to the Appendix and contains sealed documents. <2> DiPrete, then a sociology professor at Columbia University and now at the University of Wisconsin, specializes in quantitative methodology, demography, and labor market study. A-634. <3> Six female hires may be an overstatement; Cintas' records identify Jerry Wright and Jason Lewis as female, but their names and testimony about the number of women at their location suggest they are, in fact, male. R.902-3 at 14; see also www.firstnamesex.com (97.52% of people named "Jerry" are male; 99.70% of people named "Jason" are male) (visited February 22, 2010). Four female hires of 268 total is less than 1.5%. Nonetheless, DiPrete and EEOC have assumed that Cintas hired six women during the relevant time period. <4> As discussed in n.3, the actual number of female hires at West Grand Rapids may be 1, or 2%. <5> Although DiPrete used this lower number in his statistical analysis, he questioned its accuracy for two reasons. First, he pointed out that low female hires during that time period very likely deterred female applicants based on a rational assumption that the effort of applying would be unlikely to produce any benefit. A-638, A-642. Second, the variability patterns in the period from location to location became suspect when compared to data in the systemized database (i.e. data that cannot be manipulated). A-638. <6> Courts generally use 2 standard deviations - or differences that would have occurred by chance less than 1 out of 20 times - to be statistically significant and potentially indicative of discrimination. A-640. <7> EEOC never learned how Farmer acquired information about the "myth" that women cannot be SSRs because the magistrate precluded EEOC from taking his deposition. EEOC challenges that ruling infra at 88. <8> Even in San Leandro, the female SSRs were hired from within that location's plant; they were not outside hires. A-33. <9> Haridy's answer addressed the fact that Bradstrom's application noted "P/T" next to "Service Driver," though not next to "Route Driver." A-219. Bradstrom's application also indicated she could work the first shift, and work it in its entirety. Id. Haridy was responding to a question about the "P/T" notation when she answered that nothing on the application should have disqualified Bradstrom from consideration. <10> In addition to private and EEOC class claims, which do not use the model described in McDonnell Douglas, actions alleging disparate impact, sex harassment, failure to make religious accommodations, and direct evidence of intentional discrimination are brought under §706 but obviously do not use the McDonnell Douglas model. See, e.g., Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002) (McDonnell Douglas "does not apply in every employment discrimination case"). <11> The district court cited to Lowery v. Circuit City Stores, 158 F.3d 742 (4th Cir. 1998), and EEOC v. Mitsubishi Motors Manufacturing, 990 F.Supp. 1059 (C.D. Ill. 1999), but those cases lend no support to the district court's interpretation of §706. Lowery said only that in a private, non-class action, plaintiffs "typically" prove their case using McDonnell Douglas. 158 F.3d at 760. More troubling is the district court's citation to Mitsubishi, because the lengthy quotation the court uses omits critical language, noted in bold: "a §706 case seeks to vindicate, sometimes on a class-wide basis, the rights of aggrieved individuals...." 990 F.Supp. at 1084. In any event, neither court was addressing whether EEOC may use the Teamsters model of proof when it proceeds exclusively under §706. <12> A circuit split existed because the Fifth Circuit had held EEOC must obtain certification, based on that court's view that EEOC's role under Section 706 was merely that of vindicating the rights of "the private litigant in whose place it stands." EEOC v. D.H. Holmes Co., 556 F.2d 787, 794 (5th Cir. 1977). It is precisely this long-discredited conception of section 706 that the district court here invokes. R.723 at 4 ("'it is axiomatic that the EEOC stands in the shoes of those aggrieved persons....") (internal quotation marks and italics omitted); but see Gen. Tel., 446 U.S. at 326 & n.8 ("the EEOC is not merely a proxy for the victims of discrimination"); Waffle House, 534 U.S. at 297 ("the EEOC does not stand in the employee's shoes"). Moreover, the district court seeks to buttress its idea about the relative meaning of §§706 and 707 with a quote from General Telephone, R.723 at 4-5, but the district court neglects to mention that the Supreme Court was quoting from D.H. Holmes, the decision the Court overruled. 446 U.S. at 327 n.9 (quoting D.H. Holmes, 556 F.2d at 792 n.8). <13> In this case, the Serrano charge itself provided notice of the class nature of the alleged violation. ? The decisions in these cases do not specify the enforcement provision, but the complaints (available on Pacer) do. <14> The case relied on by the district court, Davis v. Hammonds, 103 F.App'x 51 (8th Cir. 2004), did not involve statistics. <15> With many claimants - such as Barber, Thompson, Williams - the court neglected to mention several of the men who Cintas hired instead of the female applicants. While additional comparators plainly would not have altered the court's decision, it erred by failing to consider evidence of less qualified men who Cintas nonetheless hired. <16> In general, the court treated the evidence of pretext as to each individual in the same manner. However, the court did seem to think the qualifications evidence of ten claimants (Bradstrom, Colfer, Comiska, Kremhelmer, Leach, Raby, Schelske, Vitale, Washington, Williams) better than that of three (Barber, Harrington, Thompson), because it was willing to assume the group-of-ten "more qualified" than the male applicants, while it expressed its reluctance to make that assumption for the group-of-three. E.g., R.923 at 22 ("emphatically" not holding Harrington more qualified). The court did not explain why it made this distinction, and it is immaterial on summary judgment. With all 13, the statistical, anecdotal, and comparative evidence combined to show pretext. Additionally, the court stated that, with regard to Bradstrom, it was "undisputed" she was seeking only part-time, evening work. R.935 at 20. EEOC does dispute the court's statement. Bradstrom indicated she wanted the first shift (not the evening), and she made a "P/T" notation next to one job she was seeking, but not next to the "Route Driver" position she listed. A-219.