EEOC v. Asplundh Tree Expert Co., 11th Cir. Reply brief Filed August 15, 2002 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 02-12386-EEE ________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Florida, Gainesville Division District Court No. 1:99cv121 MMP _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 TABLE OF CONTENTS page SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 3 I. EEOC Responded in Good Faith to Asplundh's Belated Response to the Commission's Proposed Conciliation Agreement. . . . . . . . . . . . . . . . . . . . . 3 II. Asplundh Offers No Reasons For Its Failure to Participate in the Conciliation Process in a Timely Fashion and for its Failure Thereafter to Contact the Regional Attorney When Advised that was the Next Step. . . . . . . . . . . . . . . 10 A. It is necessary and appropriate for EEOC to impose reasonable time frames as part of its administrative processing of charges. . 11 B. Sampo's Letter did not Provide a Basis for EEOC to Delay Filing this Litigation. . . . . 14 1. Asplundh's belated response failed to signal an interest in conciliation. . . 15 2. Asplundh failed to contact the regional attorney as advised. . . . . . . . . . . 20 III. Dismissal Was Inappropriate in any Event Because There is No Evidence the Commission was Grossly Arbitrary or Unreasonable Here, Nor Was There Any Prejudice to Asplundh in This Case. . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES page Bonner v. City of Prichard, 661 F.3d 1209 (11th Cir. 1981) (en banc) . . . . . . . . . . . . . . 16 Eatmon v. Bristol Steel & Ironworks, Inc., 769 F.2d 1503 (11th Cir. 1985) . . . . . . . . . . . . 27 EEOC v. American Express Publishing Corp., 681 F. Supp. 216 (S.D.N.Y. 1988) . . . . . . . . . 25, 26 EEOC v. Costco Companies, Inc., No. 99CV2669, 2000 U.S. Dist. LEXIS 19586 (S.D. Cal. Oct. 27, 2000) . . . . . . . . . 12, 15, 16, 22 EEOC v. Henry Beck Co., 729 F.2d 301 (4th Cir. 1984) . . . 27 * EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984) . . . . . . . . . . . . . 18 * EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir. 1981) . . . . . . . . 1, 18, 23, 24 * EEOC v. Liberty Trucking Co., 695 F.2d 1038 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . 19, 28 EEOC v. Pet, Inc., 612 F.2d 1001 (5th Cir. 1980) . . . 16, 17 EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982) . . . . . . . . . . 20, 26, 27 EEOC v. Reeves, No. CV 00-10515, 2002 WL 1151459 (C.D. Cal. May 6, 2002), appeal docketed, No. 02-56179 (9th Cir. July 17, 2002) . . . . . . . . . 20 EEOC v. Reeves, No. CV 00-10515, 2002 WL 1634013 (C.D. Cal. Feb. 19, 2002), appeal docketed, No. 02-55928 (9th Cir. June 3, 2002) . . . . . . . . . 20 EEOC v. Sears, Roebuck and Co., 650 F.2d 14 (2d Cir. 1981) . . . . . . . . . . . . . . . . . . 24, 25 page Marshall v. Sun Oil Co., 605 F.2d 1331 (5th Cir. 1979) . . . . . . . . . 17, 20, 21 Owens v. West, 182 F. Supp. 2d 180 (D. Mass. 2001) . . . 27 STATUTES 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . 17, 29 REGULATIONS 29 C.F.R. § 1604.11(e) . . . . . . . . . . . . . . . . . . 17 OTHER SOURCES EEOC Compliance Manual § 615.7(b) . . . . . . . . . . . . . 17 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 02-12386-EEE ________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Florida, Gainesville Division District Court No. 1:99cv121 MMP _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ SUMMARY OF ARGUMENT In its opening brief, the Equal Employment Opportunity Commission ("Commission" or "EEOC") explained why its conciliation efforts in this case were adequate under EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir. 1981). First, the Commission outlined to Asplundh the basis for EEOC's belief that Title VII had been violated in its March 31, 1999, Letter of Determination ("LOD"). Next, the Commission extended Asplundh two separate invitations to conciliate (in the LOD and in the EEOC investigator's letter dated April 7, 1999, transmitting a proposed Conciliation Agreement and requesting a response by April 23rd). The EEOC District Director issued a letter indicating conciliation had ended only after the designated time for a response had passed without any contact from Asplundh indicating a willingness to discuss conciliation. When EEOC's investigator subsequently received Asplundh's belated response, she advised Asplundh's newly-retained counsel that he needed to contact the EEOC Regional Attorney. Asplundh's counsel never availed himself of that opportunity, even though he did not learn of EEOC's lawsuit against the company until almost three weeks after the investigator left her message. R. 81, ¶ 10. Clearly, the Commission offered Asplundh an opportunity to engage in conciliation, and Asplundh's belated response was "too little, too late." The Commission's opening brief also explained that the "sanction" imposed by the district court -– dismissal of EEOC's lawsuit -- is completely unprecedented on these facts.<1> If this Court were to conclude that the Commission did not fully satisfy the conciliation requirements of Title VII, the appropriate remedy under these circumstances would be to stay the lawsuit to provide the parties with an opportunity to conciliate further. Asplundh, in its Answer Brief, now concedes the basic facts alleged by the Commission but disputes that under these facts the Commission's actions satisfied the conciliation requirement of Title VII. Asplundh also makes factual misrepresentations and speculations that are unsupported by the record, and the company mischaracterizes a number of the cases on which it relies. The Commission files this Reply Brief to address these points. ARGUMENT I. EEOC Responded in Good Faith to Asplundh's Belated Response to the Commission's Proposed Conciliation Agreement. Asplundh concedes the basic facts alleged by the Commission in its opening brief, which differ in significant respects from the facts Asplundh asserted below, on which the district court based its conclusion that EEOC acted in bad faith in this case. Asplundh has never disputed the Commission's contention that the company never responded to the Commission's first invitation to conciliate (EEOC Form 153, see RE56) which the Commission enclosed in the District Director's LOD. Asplundh furthermore has conceded all along that the cover letter to the Commission's proposed Conciliation Agreement, RE46, requested a response by April 23, 1999, and that Asplundh first responded on April 28, 1999, RE58, almost a week after that deadline. The differences between Asplundh's factual assertions in the court below and its concessions before this Court arise in what occurred thereafter. In the court below, Asplundh asserted that the Commission never responded to its April 28, 1999, letter from Peter Sampo. See R. 81, Affidavit of Peter L. Sampo, ¶ 9 ("Following submission of this letter [the April 28, 1999, letter from Sampo to EEOC Investigator Debra West], I never received any communication from Ms. West, or from anyone with the EEOC.") (emphasis added)(RE63); R. 77, Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment on Issue of Conciliation, at 3 ("Inexplicably, the EEOC failed to respond to Mr. Sampo's request."). The district court relied heavily on Asplundh's repeated assertion of this factual misrepresentation by Sampo in finding that EEOC acted in bad faith. Compare R. 90 at 6 ("EEOC at no time responded to the Defendant's faxed letter or acknowledged having received such letter.") and 10 ("EEOC's response to the foregoing letter was the filing of the instant lawsuit one day thereafter.") with R. 77 at 3 ("Defendant contends that the EEOC's refusal to respond to its April 28th correspondence is indicative of its bad faith concerning its conciliation efforts. . . . Defendant submits that the EEOC, by ignoring Mr. Sampo's letter, failed to endeavor in good faith to conciliate the case sub judice.").<2> Before this Court, Asplundh now concedes that EEOC Investigator Debra West attempted to contact Sampo by telephone, as Sampo requested, and that Sampo called her back at least once.<3> See Answer Brief at 9 (acknowledging voice mail that West left for Sampo on May 10, 1999); 12 ("Asplundh attempted to contact the EEOC by telephone but received a voicemail that the matter was out of the Investigator's hands."); 27-28 (discussing West's telephone messages to Sampo on April 29 and May 10, 1999). No longer relying on Sampo's sworn statement that no one from EEOC ever contacted him after he wrote to the Commission, Asplundh argues, instead, that West's telephone message and voice mail did not constitute a response to Sampo's letter. Answer Brief at 27-32. Among other things, Asplundh questions whether West's attempts to contact Sampo by telephone (as he requested in his letter) were "genuine." Answer Brief at 29 ("Even if West's telephone message and voicemail were genuine, which Asplundh denies, these actions still do not equate to conciliation.") (emphasis added); 31 ("Thus, West's vague message reflecting that she was no longer willing or able to engage in conciliation, even if genuine, did not constitute good faith conciliation.") (emphasis in original and added). Asplundh is apparently suggesting that West's efforts to reach Sampo by telephone were not motivated by a sincere desire to continue conciliation. Asplundh's doubts about West's internal motivation, however, are completely immaterial as well as unsupported by anything in the record. Sampo requested a telephone conference, West attempted to comply, and she was unable to reach him despite several attempts. Asplundh has no basis to speculate that West's efforts to reach Sampo were, for some reason, not "genuine" or that a telephone conversation, had it taken place, would not have furthered the Commission's conciliation efforts. Asplundh's other efforts to explain its view that West's telephone calls did not constitute a "response" to Sampo's letter are equally unpersuasive. Asplundh asserts, for the first time on appeal, that West should have forwarded Sampo's letter to someone else for a response. See Answer Brief at 27 ("Rather than forward the letter to the Regional Attorney (or other appropriate official) for an answer . . . ." and "[W]hile waiting for Sampo to return her call, West evidently did nothing with his letter."); 27-28 ("West, as the EEOC representative, should have . . . communicated to someone at the EEOC that Asplundh had requested to extend the conciliation deadline.")(emphasis in original).<4> There is no reason why West should have forwarded Sampo's letter to someone else for response, since it was addressed to her. Rather than giving the letter to someone else, West complied with Sampo's request and attempted to reach him by telephone. When she could not reach him after two attempts, she left him a message to contact the Regional Attorney. It is hard to see how the result would have been materially different if, instead, the Regional Attorney had telephoned Sampo and left him a message to call her back. Moreover, Asplundh's speculation that West undertook these steps on her own, without also informing her EEOC colleagues in the Miami District Office, is just plain wrong. Although not part of the record below, West advised both her supervisor and the Regional Attorney that she had received Sampo's letter. She then proceeded to try to reach Sampo by telephone, in order to respond to his letter on behalf of the Commission and to let Sampo know that he needed to talk to the Regional Attorney if Asplundh wanted to pursue the matter. The fact that the record is silent on this point belies Asplundh's assertion that EEOC would have had nothing else to add even if the district court had put EEOC on notice that it was, in effect, construing Asplundh's opposition below as an affirmative motion for summary judgment. See Answer Brief at 44-45, responding to EEOC's arguments in its Opening Brief at 25-27. Had Asplundh moved affirmatively for summary judgment and asserted, in that motion, that West acted improperly by not advising other EEOC staff of Sampo's letter while she attempted to reach him by telephone, the Commission could have placed into the record the fact that West discussed Sampo's letter with both her supervisor and the Regional Attorney, who advised West to proceed as she did. Despite Asplundh's efforts to deflect the Court's attention to its fictionalized version of West's conduct, the question is whether the Commission made a good faith effort to conciliate the claims in this lawsuit. EEOC invited Asplundh to engage in conciliation and then established a deadline for response. After that deadline passed without a response from Asplundh and EEOC concluded that Asplundh was not interested in the Commission's conciliation efforts, Asplundh's new attorney belatedly sought to extend the conciliation deadline. The EEOC's investigator told Sampo to contact the Regional Attorney. Given Sampo's failure to contact the Regional Attorney as instructed, the Commission was under no obligation to engage in any further attempts to conciliate this matter before filing suit. II. Asplundh Offers No Reasons For Its Initial Failure to Participate in the Conciliation Process in a Timely Fashion and for its Failure Thereafter to Contact the Regional Attorney When Advised that was the Next Step. Asplundh has essentially taken the position, in the court below and before this Court, that an employer can ignore the Commission's designated time frame for responding to a conciliation proposal and can obtain an extension of time to respond, after the fact, without offering any reason for having missed the deadline.<5> Having now conceded that EEOC did not ignore Sampo's letter, Asplundh appears to assert, in addition, that the Commission was obligated to halt all further enforcement proceedings once it received Asplundh's belated letter. Answer Brief at 37. Asplundh would impose this burden even though (1) West did not receive Sampo's letter until after the District Director sent the notice that conciliation had ended, (2) Sampo's letter did not signal a clear interest in conciliation but simply requested more information concerning something that was evident from the LOD, and (3) West promptly responded to Sampo's letter by attempting twice to reach him by telephone (as he requested), but Asplundh never contacted the EEOC Regional Attorney after the investigator advised Asplundh's counsel that that was the next step. As explained below and in EEOC's opening brief, Asplundh's position is unsupported by any legal precedent. Indeed, the decisions of courts that have addressed this question demonstrate the critical nature of the above-noted facts in assessing the reasonableness of the Commission's response. Had any one of these facts been to the contrary, the cases Asplundh cites might provide support for its attack on the Commission's conduct. On these facts, however, the Commission's decision to proceed with litigation was reasonable, appropriate, and wholly consistent with the Klingler standard. A. It is necessary and appropriate for EEOC to impose reasonable time frames as part of its administrative processing of charges. The Commission can meet its congressional mandate to process the nearly 80,000 administrative complaints of employment discrimination that it receives each year<6> only by setting reasonable time frames for completing each step of the process. The time frame that the Commission set for Asplundh's initial response to the April 7, 1999, proposed conciliation agreement was appropriate under these circumstances. Asplundh was on notice that the conciliation process had started when it received the District Director's March 31, 1999, LOD containing EEOC Form 153. If Asplundh had signaled its interest in conciliation by returning the Form 153, or if Asplundh had contacted the Commission before the time for response had expired, as happened in EEOC v. Costco Companies, Inc., No. 99CV2669 JM, 2000 U.S. Dist. LEXIS 19586 (S.D. Cal. Oct. 27, 2000),<7> the Commission would have known of Asplundh's interest in conciliation, and the District Director would not have had occasion to send a letter indicating that conciliation had ended. That did not happen, however. Instead, almost a month after EEOC issued the LOD and almost a week after the deadline for responding to the proposed conciliation agreement, Sampo sent his letter stating that Asplundh had questions concerning the Commission's determination. By then, the District Director had already issued a letter notifying the parties that conciliation had ended. Asplundh offers no reason why the Commission should have re- opened conciliation after the District Director sent his April 29, 1999, letter. Certainly, there are extenuating circumstances which could make it appropriate for the Commission to extend an employer's time to respond to a proposed conciliation agreement, or even to re-open conciliation after a district director issued a letter indicating conciliation was closed. Extending or re- opening conciliation might be appropriate, for instance, if an employer only received a copy of the Commission's conciliation proposal after the designated time for a response, or if the employer's designated representative was out of the office with a personal emergency or in trial during the time for response, or was unable to respond by the designated deadline for some other reason. The record in this case indicates no such extenuating circumstances, however. Sampo's letter is completely silent concerning Asplundh's failure to respond by April 23, 1999. Likewise, Asplundh's in-house counsel, who was handling the matter previously, never contacted EEOC to advise the Commission that Asplundh was retaining new counsel and needed additional time to respond as a result. Indeed, Asplundh has never, in the court below or before this Court, offered any explanation for the company's failure to respond, or to request additional time to respond, by the Commission's designated response date. Equally puzzling is Asplundh's unsupported and erroneous claim that "EEOC readily admits that it has routinely re-opened conciliation once it was closed . . . ." Answer Brief at 26. Asplundh does not cite to anything in the Commission's opening brief or in the record below to support this assertion. Asplundh merely references two cases in which the Commission happened to extend conciliation based on the particular circumstances. As the Commission noted in its opening brief, the Commission has the authority to re-open conciliation. EEOC's Opening Brief at 22. The two cases cited by Asplundh merely demonstrate that EEOC has exercised this authority in limited and appropriate circumstances. The Commission does not routinely do so, however. B. Sampo's Letter did not Provide a Basis for EEOC to Delay Filing this Litigation. In the end, Asplundh argues that it is immaterial whether West (EEOC's representative for this case) received the Sampo letter before or after the District Director notified the parties that conciliation had ended, because it is undisputed that the Commission received Sampo's letter at least 13 days before it filed suit on May 12, 1999. Answer Brief at 25. There are two reasons Sampo's letter did not provide a basis for delaying the next stage of EEOC's enforcement efforts, the filing of a lawsuit, as Asplundh asserts. Ibid. (citing district court's decision, R. 90, at 10-11). First, the letter itself did not signal Asplundh's interest in discussing settlement. Rather, it contained only what appeared to be a reiteration of Asplundh's consistent position, throughout the investigation, that it could not be liable for "third party harassment," i.e. harassment of one of its employees committed by someone who did not work for Asplundh. Second, West advised Sampo that he needed to contact the Regional Attorney if he wished to discuss the case further. Sampo failed to do so, even though he attested in his affidavit that he did not know about EEOC's lawsuit until approximately three weeks after West's second telephone message. Under these circumstances, the Commission was not obligated to continue pursuing Asplundh to see if it was interested in settling the case. Each of these reasons is addressed, in turn. 1. Asplundh's belated response failed to signal an interest in conciliation. In contrast to the cases Asplundh cites, Sampo's letter simply requested information about the basis for the Commission's cause finding -- information clear from the face of the LOD, in light of the charge Robert Lewis had filed. Such a request does not signal an interest in settlement and is very different from the overtures of employers in many of the cases cited by Asplundh and Amici. The company representative in EEOC v. Costco, for instance, advised the EEOC investigator, in their first conversation after Costco received EEOC's proposed conciliation agreement, that "Costco believed an agreement could be reached." 2000 U.S.Dist. LEXIS 19586 at *3. Although the parties were unable to reach agreement, id. at *3-*4, Costco's initial overtures at least provided a basis for EEOC to continue settlement discussions after conciliation had officially ended. Similarly, in EEOC v. Pet, Inc., 612 F.2d 1001, 1002 (5th Cir. 1980)(per curiam),<8> the employer expressly offered to attempt to conciliate the class issues raised in the case, although it declined to offer any relief to the individual charging party. Thus, this Court's finding in Pet that EEOC did not conciliate in good faith was premised on an actual offer to conciliate from the employer, and not simply a request by the employer for more information about the basis for the Commission's cause finding.<9> The actions EEOC must take to satisfy its obligation under Klingler to act reasonably under the circumstances will differ depending on whether the Commission is dealing with "a repentant wrongdoer" or "an intransigent one." Marshall v. Sun Oil Co., 605 F.2d 1331, 1335 (5th Cir. 1979). In this case, Asplundh denied, from the outset, that it had engaged in any race discrimination, see, e.g., Asplundh's Position Statement to EEOC dated February 3, 1997 (Attached at Apx.1a-3a), and has continued to question EEOC's basis for asserting that it could be liable for harassment by Pete Evans given that Evans was not an employee of Asplundh. See Answer Brief at 17, 39.<10> Sampo's letter requesting more information in order to understand the basis for the Commission's reasonable cause finding, RE58, reflected Asplundh's persistent skepticism on this point. Asplundh knew, however, that the Commission's finding was based on the actions of Pete Evans at the Asplundh worksite. Apx.3a. Klingler does not require EEOC, during conciliation, to explain to an employer the Commission's theory of discrimination or to reveal to an employer all of the evidence that the Commission obtained during the investigation. Klingler only requires the Commission to "outline to the employer the reasonable cause for its reasonable belief that the statute has been violated." 636 F.2d at 107 (emphasis added). The reasonable cause finding is intended to provide a general notice to the employer of the Commission's conclusions. See, e.g., EEOC v. Keco Indus., 748 F.2d 1097, 1100 (6th Cir. 1984)(reasonable cause determination "designed to notify the employer of the EEOC's findings and to provide a basis for later conciliation proceedings"). The opportunity for conciliation that follows is not designed to let the employer contest the soundness of the Commission's findings or engage in a mini-adjudication of the legal theories underlying the Commission's claims, cf. ibid. (discussing pitfalls of allowing a defendant to challenge sufficiency of an investigation leading to a reasonable cause determination), but only to permit the employer to resolve the claims pre-litigation, if the employer so wishes. Asplundh never moved beyond questioning the Commission's ability to assert a claim of harassment against Asplundh where the alleged harasser was not an Asplundh employee. Unlike the employers in the cases cited above, Asplundh never indicated an interest in actually discussing settlement of the Commission's finding that it had reasonable cause to believe Robert Lewis was the victim of racial harassment and retaliation. It is Asplundh's right to question the soundness of this finding and to decline to settle the Commission's claims on that basis. As the Seventh Circuit noted in EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1041 (7th Cir. 1982): Conciliation agreements are voluntary contracts containing terms upon which the employer, the employee, and the EEOC agree. . . . An employer who believes he has not discriminated or that the terms proposed either by the EEOC or the employee are unfair is free to refuse to agree. Asplundh was not required to agree to the conciliation proposal EEOC sent on April 7, 1999, nor was it required to offer a counter-proposal. Having made the decision to continue questioning the Commission's "cause" finding, however, it should not be heard now to complain that EEOC understood its position to be that it "refuse[d] to agree" to conciliate, ibid., and thus proceeded to prosecute these claims in court.<11> 2. Asplundh failed to contact the Regional Attorney as advised. Both Asplundh and Amici take the position that Asplundh did not have to follow the investigator's instructions to contact the Regional Attorney if it wished to pursue the matter further. Asplundh argues that it could, by its inaction, essentially shift responsibility onto the Commission to reopen conciliation and continue attempting to contact Asplundh. See, e.g., Answer Brief at 9 n.3 (asserting "[i]t was West's responsibility to contact the ‘Regional Attorney'."); Brief of Amici Curiae at 18-19. Contrary to Amici's assertion that the onus is on EEOC to make renewed conciliation overtures at every step of the process, see Brief of Amici Curiae at 18-19, conciliation "is not a one-way street." Marshall, 605 F.2d at 1335. Rather, "[b]ecause conciliation involves at least two parties, [this Court] must evaluate one party's efforts with an eye to the conduct of the other party." Ibid. West advised Sampo on May 10th that he needed to contact the Regional Attorney to pursue the matter further; Sampo never did. The Commission was not obligated to continue pursuing Asplundh further before instituting litigation. Asplundh implies that the reason Sampo did not contact the Regional Attorney was because the Commission filed this lawsuit on May 12. See, e.g., Answer Brief at 12, 28. That explanation is somewhat disingenuous. Sampo attested below that he had no knowledge the Commission had filed this lawsuit until sometime in June. R. 81 (RE63).<12> Thus, notwithstanding Asplundh's repeated references to the short time between West's second telephone message to Sampo on May 10 and the filing of the lawsuit on May 12,<13> the institution of this litigation was clearly not the reason Sampo failed to follow West's advice to contact the EEOC Regional Attorney, since he did not learn of the lawsuit until almost three weeks later.<14> Indeed, given the lengthy delay before Sampo returned West's first telephone call (almost a week), the Commission was not obligated to delay litigation to see what Sampo might eventually do, and the fact that Sampo did not call the Regional Attorney during the three weeks between receiving West's second message and learning of the Commission's lawsuit bears out the reasonableness of EEOC's actions in this regard. III. Dismissal Was Inappropriate in any Event Because There is No Evidence the Commission was Grossly Arbitrary or Unreasonable Here, nor was there Any Prejudice to Asplundh in this Case. As the Commission explained in its opening brief, dismissal was inappropriate here, in any event, because even if this Court concludes that the Commission's efforts to conciliate were inadequate, this case does not present the extreme circumstances that would warrant such a drastic sanction. The Court in Klingler suggested that dismissal might conceivably be appropriate only where the Commission's conciliation conduct was "grossly arbitrary and unreasonable" or there was "substantial prejudice to the defendant." 636 F.2d at 107. The Commission explained in its opening brief why its actions here were reasonable and appropriate in light of Asplundh's unexplained failure to respond during the designated time frame and the company's unexplained failure, thereafter, to contact the Regional Attorney when advised to do so if it wanted to pursue the matter further. Indeed, Asplundh's Answer Brief still does not offer any explanation for Asplundh's initial delay, and provides unpersuasive explanations for its inaction thereafter. Likewise, Asplundh has not demonstrated that EEOC's failure to re-open conciliation caused it "substantial prejudice," and there is no basis in the record for such a finding. The only prejudice that Asplundh alleges is that which follows naturally from having to defend a lawsuit in court. See Answer Brief at 37-40. That cannot be what this Court meant in Klingler by "substantial prejudice," however, because it would then, by definition, be present in every case (including Klingler, where this Court reversed the trial court's dismissal of the action). This Court, in Klingler, must have meant something more, but Asplundh has not put forward anything, other than the ordinary costs of defending this lawsuit, to support its claim that it experienced "substantial prejudice" in this instance. As EEOC noted in its opening brief, since Klingler was decided, courts have uniformly held that dismissal is appropriate, if at all, only where EEOC has made absolutely no effort to undertake conciliation on a particular issue or claim. See EEOC's Opening Brief at 33-35. Asplundh cites no cases to the contrary. In EEOC v. Sears, Roebuck and Co., 650 F.2d 14 (2d Cir. 1981), for instance, the Second Circuit upheld the district court's dismissal of EEOC's lawsuit challenging employment practices at two Sears locations (the White Plains and Brooklyn stores) because EEOC's prior conciliation had focused only on a broad discussion of Sears' practices nationwide at 3,000 sites, and EEOC had never offered the company the opportunity, in conciliation, to resolve EEOC's concerns with respect to the two sites that became the sole subject of the litigation. The Second Circuit reasoned that "it was not the intention of Congress that ‘the Commission could attempt conciliation on one set of issues and having failed, litigate a different set.'" Id. at 19 (citation omitted). Even so, the Second Circuit noted that "it would have been preferable for the district court to stay proceedings to promote renewed conciliation rather than dismiss the action." Ibid. Since "the dismissal was without prejudice," however, and the conciliation was "patently inadequate with respect to the two stores in question" (given that those stores had never been the subject of any settlement proposal), the court upheld the district court's exercise of discretion. Ibid. Similarly, the district court in EEOC v. American Express Publishing Corp., 681 F. Supp. 216 (S.D.N.Y. 1988), dismissed the portion of EEOC's lawsuit that was brought on behalf of unnamed individuals (but not the portion addressing the individual charging party's claims) because EEOC's reasonable cause finding and proposed conciliation agreement only addressed the charging party's individual claims of age discrimination and did not fairly apprize the company of the Commission's broader claims on behalf of unnamed individuals. Id. at 220-22. The district court noted the existence of two bodies of cases involving adequacy of conciliation efforts: those in which conciliation was found to be inadequate because it failed to address the scope of the claims and those in which conciliation was found inadequate because it was "too abruptly curtailed." Id. at 221. The court observed that the former cases generally resulted in dismissal, while in the latter cases "defendants' motions for summary judgment have been denied and a stay granted." Id. at 222. The district court found EEOC's claims on behalf of unnamed individuals to fall in the former and dismissed those claims, but left intact EEOC's lawsuit on behalf of the named charging party.<15> The present case is vastly different from Sears and American Express.<16> Contrary to Asplundh's characterization, Answer Brief at 42, the Commission's actions here do not fall within the line of cases where EEOC made absolutely no efforts to initiate conciliation on a given claim or issue. In this case, the Commission sent Asplundh a proposed conciliation agreement which sought relief addressing Robert Lewis's claims of individual race discrimination and retaliation as set forth in the District Director's reasonable cause finding.<17> Those same claims, and only those claims, are asserted in the Commission's lawsuit. The only reason the Commission did not "engage in negotiations or conciliation discussions with Asplundh" on those claims, Answer Brief at 42, is because the EEOC investigator did not receive Sampo's letter until after the District Director had issued the letter indicating conciliation had ended. Even then, Asplundh did not submit a counter proposal or indicate an interest in discussing settlement but merely requested more information, and thereafter failed to contact the Regional Attorney as advised. There is nothing in these facts that makes the present case remotely like those cases in which a court dismissed a claim brought by EEOC because it was not preceded by a reasonable cause finding and an attempted conciliation. Likewise, the evidence does not establish that EEOC "abuse[d] the litigation process or otherwise conduct[ed] [this] litigation in bad faith," as Asplundh asserts as an alternative ground to support the district court's dismissal action. See Answer Brief at 43-44. Given the limited scrutiny that courts properly undertake in examining the sufficiency of the Commission's conciliation efforts, see, e.g., EEOC's Opening Brief at 14, 23, the Commission's actions here were a reasonable and appropriate response to Asplundh's unexplained delay and subsequent inaction. Whether the district court's action is reviewed under the de novo standard applied to review a grant of summary judgment as the Commission asserts, see EEOC's Opening Brief at 10, or an abuse of discretion standard as Asplundh asserts, see Answer Brief at 10, the district court's dismissal of this action is without basis and should be reversed. If the Commission ended conciliation prematurely, and the Commission submits that it did not, the appropriate remedy would be a stay under 42 U.S.C. § 2000e-5(f)(1). CONCLUSION For all of the foregoing reasons and the reasons stated in EEOC's opening brief, EEOC respectfully submits that the district court erred when it held that EEOC did not conciliate this case adequately. The Commission urges this Court to reverse that ruling and remand for further proceedings. Respectfully Submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 August 15, 2002 (202) 663-4791 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in F.R.A.P. 32(a)(7)(B)(i). The brief contains 6,975 words. Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that on this 15th day of August, 2002, two copies of the attached brief, along with an electronic version on floppy disk, were sent by first-class mail, postage prepaid, to the following counsel of record: Robert E. Larkin, III, Esq. Ann Elizabeth Reesman, Esq. Michael Mattimore, Esq. Rae T. Vann, Esq. ALLEN, NORTON & BLUE, P.A. McGUINESS, NORRIS & WILLIAMS 906 North Monroe Street 1015 Fifteenth Street, N.W. Tallahassee, Florida 32301 Suite 1200 Washington, D.C. 20005 Stephen A. Bokat, Esq. Reginald E. Jones, Esq. Robin S. Conrad, Esq. Steven R. Semler, Esq. NATIONAL CHAMBER LITIGATION OGLETREE, DEAKINS, NASH, SMOAK CENTER, INC. & STEWART 1615 H Street, N.W. 2400 N Street, N.W., Fifth Fl. Washington, D.C. 20062 Washington, D.C. 20037 Susan R. Oxford A P P E N D I X APPENDIX TABLE OF CONTENTS page 1. Asplundh's February 3, 1997, Position Statement in Robert B. Lewis v. Asplundh Tree Expert Co., EEOC Charge No. 150963910 . . . . . . . . . . . . 1a 2. Excerpt from EEOC Compliance Manual, Section 615.7, Harassment on the Bases of Race, Religion and National Origin . . . . . . . . 4a *********************************************************************** <> <1> The Commission explained in its opening brief that EEOC also takes issue with the district court’s award of attorney’s fees and costs to Asplundh, which became final on June 12, 2002, after the notice of appeal was filed in this case. EEOC has since appealed the award of attorney’s fees and costs, EEOC v. Asplundh Tree Expert Co., No. 02-13571-E, and recently filed a motion with this Court seeking a stay of that appeal pending the outcome of this matter. <2> Asplundh repeated this factual error at least four more times in the course of arguing to the court below that EEOC acted in bad faith in this case. See, e.g., R. 77 at 5 (“Plaintiff [EEOC]’s blatant disregard of Defendant’s correspondence undermines its contention that it exercised good faith in the instant matter. . . . [H]ere, unlike Marshall [v. Sun Oil Co.], Asplundh never rejected the EEOC’s settlement attempt. . . . To the contrary, . . . . [i]t is the EEOC who refused to respond.”) (emphasis added); 6 (“In contrast to Costco, here the EEOC never responded to Asplundh . . . .”); 9 (“In its eagerness to file suit, the EEOC blatantly ignored the Defendant’s request for discussion and extension of time.”); 10 (asserting that EEOC “ignore[d] Defendant’s attempt to engage in settlement discussions.”). <3> Even though Asplundh now concedes that the EEOC investigator telephoned Sampo after receiving his letter, Amici Curiae Equal Employment Advisory Council and the Chamber of Commerce ignore this fact in their brief in support of Asplundh. See, e.g., Amici Curiae Brief at 5 (“The agency did not respond to Asplundh’s April 28 correspondence . . . .”), 17-18 (EEOC filed suit “never having responded to the company’s request to discuss the basis for its reasonable cause determination . . . .” ), and 23 (EEOC “filed suit in federal district court only two weeks after learning of, but disregarding, Asplundh’s interest in further discussing the case.”)(emphasis added). Since Amici’s brief is premised on this factual misperception, this Court should accord little weight to Amici’s arguments concerning the third prong of the Klingler standard, EEOC’s obligation to respond to an employer in a reasonable and flexible manner. <4> In fact, Asplundh goes so far as to accuse West of hiding Sampo’s letter from everyone else at EEOC. See Answer Brief at 32 (“West’s conduct in concealing Sampo’s letter further confirms the court’s finding that the EEOC was unreasonable and arbitrary.”); cf. Answer Brief at 36 (after Asplundh sent the April 28, 1999, letter “EEOC buried the request . . . .”). It is unclear why Asplundh makes this accusation, as it has no basis in fact and Asplundh cites to nothing in the record in its support. <5> To the extent the brief of Amici EEAC and Chamber of Commerce also adopts this position, this Reply Brief responds to Amici’s brief as well as Asplundh’s Answer Brief. <6> According to the Charge Statistics published at EEOC’s public website (www.eeoc.gov) under “EEOC Enforcement Statistics and Litigation,” the Commission has received an average of 79,690 charges per year for the past five fiscal years (FY 1997 through FY 2001). More than one-third of these charges included a claim of discrimination based on race. <7> In Costco, the Commission advised the employer, in a telephone call on April 27, 1999, that it was seeking both monetary and non-monetary relief in conciliation. The Commission thereafter set forth the specific relief it was seeking in a letter dated May 5, 1999, which requested Costco’s response by May 11. Costco’s attorney left the EEOC investigator a voice message explaining that Costco needed additional time to respond because the company’s corporate counsel was out of town and would not be back by May 11. Costco followed up this telephone message by faxing and mailing a letter on May 12 confirming Costco’s prior telephone request. Thus, Costco requested an extension of time to address EEOC’s conciliation proposal within the time frame set by EEOC for Costco’s initial response. <8> This Court has adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prichard, 661 F.3d 1209 (11th Cir. 1981) (en banc). <9> Even though this Court concluded that EEOC’s refusal of Pet’s express offer to conciliate was “not the sort of good-faith attempt at conciliation . . . that Title VII contemplates,” 612 F.2d at 1002, this Court held that “the sweeping action of the court below” dismissing the Commission’s lawsuit was “far too harsh” a sanction where conciliation had “at least been attempted in good faith, though prematurely aborted.” Ibid. (citation omitted). This Court therefore vacated the district court’s dismissal and remanded for entry of a limited stay pursuant to 42 U.S.C. § 2000e-5(f)(1). Id. at 1002-03. Thus, EEOC v. Pet is yet another example of courts’ consistent conclusions that dismissal is not an appropriate sanction for inadequate conciliation where EEOC has at least initiated the conciliation process with respect to a given claim, even if it is later determined that EEOC ended the conciliation process prematurely. <10> As Asplundh noted in its Answer Brief at 3, the underlying merits of the Commission’s claims are not at issue in this appeal. Nevertheless, it should be noted that EEOC has long taken the position that an employer’s responsibility to maintain a harassment-free workplace includes protecting employees from harassment by third parties who come into contact with the employee as a result of the employee’s job duties. See, e.g., 29 C.F.R. § 1604.11(e); EEOC Compliance Manual § 615.7(b)(“employer . . . may be responsible for non-employee harassment if the employer, its agents, or supervisors knew or should have known of the unlawful conduct and the employer failed to take immediate and appropriate corrective action.”)(excerpt attached at Apx.4a). <11> EEOC v. Reeves, No. CV 00-10515, 2002 WL 1151459 (C.D. Cal. May 6, 2002), appeal docketed, No. 02-56179 (9th Cir. July 17, 2002), which Asplundh also cites, see Answer Brief at 29-31, is inapposite as well. Asplundh erroneously suggests that the court in Reeves dismissed EEOC’s lawsuit for inadequate conciliation. The court had previously granted Reeves’s motions for summary judgment on the merits of EEOC’s sexual harassment claims, see EEOC v. Reeves, No. CV 00-10515, 2002 WL 1634013 (C.D. Cal. Feb. 19, 2002), appeal docketed, No. 02-55928 (9th Cir. June 3, 2002), and discussed the adequacy of conciliation only in the context of the court’s subsequent grant of attorney’s fees to Reeves. 2002 WL 1151459 at *5-*7. In discussing conciliation, the Reeves court did not apply the Klingler standard but relied, instead, on EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982), which is distinguishable from the present case. See p.26 n.16, infra. <12> See Sampo Affidavit at ¶ 10 (“In June, 1999 I was informed that the EEOC had served a summons and complaint on Asplundh.”)(RE63) <13> See, e.g., Answer Brief at 9 (noting that West left Sampo a voice message on May 10, 1999, and that EEOC filed this lawsuit on May 12, 1999, a time frame that Asplundh inexplicably characterizes as “one day later”); 12 (same); 31 (again mischaracterizing the time period from May 10 and May 12 as “one business day later”). Asplundh speculates that EEOC’s decision to file this lawsuit must have been made by the time West made her second telephone call to Sampo on May 10. Answer Brief at 28-29. Precisely when that decision was made is immaterial, however, because a regional attorney has the authority, in his or her discretion and in coordination with EEOC’s Office of General Counsel (OGC), to continue settlement discussions with an employer after suit has been authorized. See, e.g., EEOC v. Costco, 2000 U.S. Dist. LEXIS 19586 at *3-*4 (after EEOC’s OGC approved case for litigation, EEOC counsel contacted Costco’s counsel to inquire whether Costco wanted another opportunity to resolve the matter voluntarily, where company previously told EEOC investigator that it believed agreement could be reached). <14> Alternatively, Asplundh speculates that West failed to provide Sampo with the Regional Attorney’s name and telephone number in her May 10 voice message. See Answer Brief at 28. Asplundh has no basis for this erroneous speculation. See Answer Brief at 27 n.13 (acknowledging that the record evidence, West’s log, does not provide the content of the messages). Asplundh then suggests that it might have been difficult for Sampo to “track down” the Regional Attorney without that information. This suggestion is counter factual. Sampo did not claim that he failed to call the Regional Attorney because of some difficulty in tracking her down; rather, he claimed that no one from EEOC, including West, ever contacted him after he sent his letter. In any event, “tracking down” the Regional Attorney would have posed no challenge, even if West had not left the Regional Attorney’s name and telephone number in her second voice message to Sampo. Sampo could have called West back to obtain this information. A telephone call to the receptionist at EEOC’s Miami District Office, using the telephone number printed at the top of both the LOD and the Proposed Conciliation Agreement, see RE44, RE46, would have also yielded the Regional Attorney’s identification. EEOC’s telephone number is available through various public sources, as well, including the telephone directory, operator information, and the internet. <15> Asplundh’s reference to this case, Answer Brief at 43, is misleading in that Asplundh states that the court dismissed EEOC’s action, without noting that the court only dismissed the claims EEOC brought on behalf of unnamed individuals. <16> Asplundh also cites EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982). Answer Brief at 33. Pierce is inapposite because there the Ninth Circuit was addressing EEOC’s authority under Title VII to seek judicial enforcement of a pre-reasonable cause settlement agreement. The Ninth Circuit disallowed such an enforcement action because it was not preceded by a reasonable cause finding and attempted conciliation as Title VII requires. 669 F.2d at 606-09. In contrast, in the present case EEOC issued a reasonable cause finding and initiated conciliation with respect to the claims litigated. At any rate, other courts have since repudiated the holding in Pierce and have concluded that EEOC can enforce pre-determination settlement agreements under Title VII. See, e.g., EEOC v. Henry Beck Co., 729 F.2d 301, 305-06 (4th Cir. 1984); Owens v. West, 182 F. Supp. 2d 180, 188-90 (D. Mass. 2001)(discussing cases); cf. Eatmon v. Bristol Steel & Ironworks, Inc., 769 F.2d 1503, 1508 (11th Cir. 1985)(employees can seek enforcement in court of employer’s compliance with executive order conciliation agreement). To the extent EEOC’s complaint in Pierce went beyond enforcement of the pre-determination settlement agreement and attempted to litigate additional claims, see Henry Beck, 729 F.2d at 305, Pierce simply represents another decision in the line of cases that hold EEOC must first issue a reasonable cause finding and attempt conciliation before initiating litigation on a specific claim. <17> Asplundh describes the Commission’s April 7, 1999, conciliation proposal, RE47-RE55, as containing “extremely broad and novel requirements.” Answer Brief at 21; see also Answer Brief at 11 n.5 (“The EEOC’s proposed conciliation agreement included vast class relief in spite of no class allegations or any investigation into class discrimination.”). There is nothing unusual or novel about this conciliation proposal, however. Indeed, the only relief the Commission sought in the initial conciliation proposal, other than individual relief for Charging Party Robert Lewis and standard reporting and notice-posting, was EEOC’s proposal that Asplundh provide anti-discrimination training to employees and managers throughout its nationwide operations. To the extent Asplundh objected to this proposed provision as overly broad, see Answer Brief at 21, EEOC’s April 7, 1999, letter invited Asplundh to provide a counter proposal. See RE46; see also EEOC v. Liberty Trucking Co., 695 F.2d at 1041 (employer who believes terms proposed by EEOC are unfair “is free to refuse to agree”).