Case No. 01-8038 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Respondent, v. BEMIS COMPANY, Defendant/Petitioner. ________________________________________________________ On Appeal from the United States District Court For the Southern District of Indiana (Terre Haute), No. TH 01-0112-C T/H The Honorable John Daniel Tinder, Judge Presiding _________________________________________________________ ANSWER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN OPPOSITION TO BEMIS COMPANY, INC.'S PETITION UNDER FED. R. CIV. P. 23(F) FOR INTERLOCUTORY REVIEW OF CLASS CERTIFICATION DECISION _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W., Room 7020 JOSEPH A. SEINER Washington, D.C. 20507 Attorney (202) 663-4772 TABLE OF CONTENTS Page TABLE OF CONTENTS ................................................... i TABLE OF AUTHORITIES .............................................. iii STATEMENT OF JURISDICTION ........................................... 1 STATEMENT OF FACTS AND PROCEEDINGS BELOW ........................... 1 DISTRICT COURT ORDER ................................................. 2 STANDARD OF REVIEW .................................................. 5 SUMMARY OF ARGUMENT.................................................. 6 ARGUMENT ............................................................. 6 I. THIS COURT HAS NO JURISDICTION TO CONSIDER BEMIS'S PETITION FOR AN INTERLOCUTORY APPEAL BECAUSE THE DISTRICT COURT DID NOT ISSUE AN ORDER GRANTING OR DENYING CLASS CERTIFICATION.............................................. 6 II. BEMIS'S PETITION SHOULD BE DENIED BECAUSE THE REASONING OF THE SUPREME COURT IN GENERAL TELEPHONE REMAINS VALID AND APPLICABLE TO THE PRESENT CASE............................. 8 A. The Holding of General Telephone Applies to Suits in Which the Commission Seeks Compensatory and Punitive Damages .................................... 10 B. General Telephone Does Not Require the Commission To Plead a Pattern-or-Practice Claim; Nonetheless, Such a Claim is Clearly Pled by the Commission's Complaint ............................... 14 C. The Supreme Court's Holding in General Telephone Is Applicable To Harassment Claims .................. 17 CONCLUSION ......................................................... 19 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Abrams v. Oppenheimer Government Sec., 737 F.2d 582 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . 8 In re Application of County Collector of Winnebago, Illinois, 96 F.3d 890 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 7 Blair v. Equifax Check Service, Inc., 181 F.3d 832 (7th Cir. 1999) . . . . . . . . . . . . . . . 9, 14, 16 Conticommodity Service, Inc., v. Tueting, 826 F.2d 600 (7th Cir. 1987) . . . . . . . . . . . . . . . . . .5, 8 EEOC v. Dinuba Medical Clinic, 222 F.3d 580 (9th Cir. 2000) . . . . . . . . . . . . . . . . . 3, 13 EEOC v. Gurnee Inn, 914 F.2d 815 (7th Cir. 1990) . . . . . . . . . . . . . . . . .15, 16 EEOC v. Walner & Associates, 91 F.3d 963 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . .15 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . .3, 4, 8-19 Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . .17 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . . . . . . . .18 Midland Coal Co. v. Director, Office of Workers' Compensation Programs, 149 F.3d 558 (7th Cir. 1998) . . . . . . . . 5 Neal v. Director, D.C. Department of Corrections, 1995 WL 517249 (D. D.C. 1995), rev'd on ground that discovery sanction too severe, 93 F.3d 801 (D.C. Cir. 1996) . 17 Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 121 S. Ct. 1946 (2001) . . . . . . . . . . . . . . .10 Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . 5 Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972) . . . . . . . . . . . . . . . . .18 Sims v. Montgomery County Commission, 766 F. Supp. 1052 (D. Ala. 1991) . . . . . . . . . . . . . . . . .17 Sumitomo Copper Litigation v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . 5 Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . .15 United States v. Brisk, 171 F.3d 514 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . 5 FEDERAL STATUTES 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345 . . . . . . . . . . . . . . 1 42 U.S.C. § 706 . . . . . . . . . . . . . . . .1, 3, 4, 10-12, 14, 15, 18 42 U.S.C. § 707 ....................................................14, 15 42 U.S.C. § 1981a . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 42 U.S.C. § 2000e et seq. ("Title VII") . . . . . 1-3, 12, 14, 15, 18, 19 FEDERAL RULES Federal Rule of Civil Procedure 12 . . . . . . . . . . . . . . . . 1, 7, 8 Federal Rule of Civil Procedure 23 ...................................1-19 STATEMENT OF JURISDICTION The jurisdiction of the district court was invoked in this case pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. The Complaint was brought pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII"), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C § 1981a. On October 30, 2001, the district court, pursuant to Federal Rule of Civil Procedure 12(f), granted the EEOC's motion to strike Bemis's defense that the EEOC had failed to comply with Rule 23 of the Federal Rules of Civil Procedure and Local Rule 23.1 of the United States District Court for the Southern District of Indiana in prosecuting this action (decision docketed on November 1, 2001). Bemis now purports to appeal that decision under Federal Rule of Civil Procedure 23(f). This court has no jurisdiction, however, to consider such an appeal, as Rule 23(f) permits an appeal only "from an order of a district court granting or denying class action certification." Neither the EEOC nor Bemis moved for class certification, and the district court did not enter an order granting or denying class certification. Thus, this court has no jurisdiction to consider Bemis's interlocutory appeal. STATEMENT OF FACTS AND PROCEEDINGS BELOW On May 21, 2001, the Equal Employment Opportunity Commission (EEOC or Commission) submitted a Complaint to the United States District Court for the Southern District of Indiana, on behalf of five named individuals and a class of black employees, under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. (See Appendix submitted by Petitioner [hereinafter "Appendix"] at 11). The Commission alleged that Bemis Company, Inc. (Bemis) subjected many of its employees to racial harassment and harassment based on race including, among other things, nooses in the workplace, in violation of Title VII. (Id.). On June 13, 2001, Bemis answered the Complaint, and asserted as a defense to the action that "if the EEOC is seeking to prosecute a class action, said action is inappropriate under Rule 23 of the Federal Rules of Civil Procedure and that the EEOC has failed to plead said right pursuant to S.D. Ind. L.R. Rule 23.1." (Appendix at 17). On June 26, 2001, the EEOC filed a Motion to Strike Defendant's Defense Under Rule 23 and Local Rule 23.1. This motion was granted by the district court on October 30, 2001, and docketed by the court on November 1, 2001. (See appendix at 10). Bemis filed a timely petition for interlocutory review pursuant to Federal Rule of Civil Procedure 23(f). DISTRICT COURT ORDER On October 30, 2001, the district court granted the EEOC's motion to strike the Defendant's defense that the action "is inappropriate under Rule 23 of the Federal Rules of Civil Procedure and that the EEOC has failed to plead said right pursuant to S.D. Ind. L.R. Rule 23.1" (Appendix at 17). The district court held that the Supreme Court's decision in General Telephone Co. v. EEOC, 446 U.S. 318 (1980), was controlling, as the Supreme Court held that the Commission is not subject to the requirements of Rule 23. (Appendix at 3-9). The district court further found Bemis's attempt to distinguish General Telephone unavailing. Bemis had argued that this case was not subject to the Supreme Court's analysis in General Telephone because, unlike General Telephone: (1) the Commission here seeks compensatory and punitive damages; (2) the case here does not involve a pattern or practice of discrimination; and (3) the instant matter involves harassment allegations that are "individual" in nature. (Appendix at 6). First, the district court held that the nature of the damages being sought does not distinguish this case from General Telephone. (Appendix at 7). The court noted that the Supreme Court relied heavily on the history and language of 42 U.S.C. § 706 when it determined that the EEOC could seek relief for a group of individuals without meeting the requirements of Rule 23, and that the Civil Rights Act of 1991, which authorized punitive and compensatory damages in Title VII cases, did not amend § 706. (Appendix at 7). The court agreed with the decision of the Ninth Circuit in EEOC v. Dinuba Medical Clinic, 222 F.3d 580, 587 (9th Cir. 2000), which held that the EEOC is authorized to sue on behalf of a group of aggrieved individuals regardless of the type of relief sought. (Id.). Thus, the district court held that "[t]he fact that the EEOC is seeking compensatory and punitive damages does not distinguish this case from General Telephone." (Id.). Second, the district court found it immaterial that this case allegedly does not involve a "pattern or practice" of discrimination. (Id. at 8). The district court noted that the holding in General Telephone is not limited to pattern-or-practice cases, and that the Supreme Court expressly found that the EEOC can pursue § 706 actions for specific relief without first obtaining Rule 23 class certification. (Id.). Finally, the district court held that it makes no difference that harassment claims are "individual in nature" and that there is thus no "commonality" of the claims of the aggrieved individuals. The district court noted that General Telephone does not apply any such limitation, and that the Supreme Court specifically expressed concerns about applying the requirements of numerosity, commonality, typicality, and adequacy of representation to cases brought by the Commission. (Id. at 8-9). Therefore, the district court held that Bemis had failed to distinguish this case from the Supreme Court's decision in General Telephone, and granted the Commission's motion to strike Bemis' defense that the Commission failed to comply with the requirements of Federal Rule of Civil Procedure 23 and Local Rule 23.1. (Id. at 9). STANDARD OF REVIEW This Court reviews jurisdictional issues de novo. See, e.g., United States v. Brisk, 171 F.3d 514, 519 (7th Cir. 1998). Moreover, this Court has an independent duty to determine whether jurisdiction exists in a particular case. See Midland Coal Co. v. Director, Office of Workers' Compensation Programs, 149 F.3d 558, 561 (7th Cir. 1998) ("[w]e are required to satisfy ourselves of our own jurisdiction"). Under Rule 23(f), this Court is given "unfettered discretion whether to permit the appeal." See Fed. R. Civ. P. 23(f), 1998 Committee Notes. Petitions for appeal under Rule 23(f) should not be lightly granted, however, and "the standards of Rule 23(f) will rarely be met." Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 140 (2d Cir. 2001). In taking a cautious approach to granting such appeals, a court "will prevent the needless erosion of the final judgment rule and the policy values it ensures, including efficiency and deference." Id; see also Prado- Steiman v. Bush, 221 F.3d 1266, 1276 (11th Cir. 2000) (discussing Rule 23(f) appeals and stating that "interlocutory appeals are inherently disruptive, time-consuming, and expensive . . . and consequently are generally disfavored"); Conticommodity Serv., Inc., v. Tueting, 826 F.2d 600, 601 (7th Cir. 1987) ("Interlocutory appeals are disfavored because generally they interrupt litigation and burden appellate courts unduly."). SUMMARY OF ARGUMENT This Court has no jurisdiction to consider Bemis's petition for an interlocutory appeal because the district court did not issue an order granting or denying class certification, as required by Rule 23(f). Even if this Court were to determine that it had jurisdiction to consider this matter, this Court should still deny Bemis's petition for interlocutory review. The Supreme Court clearly held in General Telephone that the Commission is not subject to the requirements of Rule 23, and Bemis cannot distinguish that decision. Because this law is well established, consideration of Bemis's petition will not "further develop the law in class action cases," and the petition should therefore be denied. ARGUMENT I. THIS COURT HAS NO JURISDICTION TO CONSIDER BEMIS'S PETITION FOR AN INTERLOCUTORY APPEAL BECAUSE THE DISTRICT COURT DID NOT ISSUE AN ORDER GRANTING OR DENYING CLASS CERTIFICATION. Bemis purports to bring this interlocutory appeal pursuant to Federal Rule of Civil Procedure 23(f). Rule 23(f) specifically provides, however, that A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. Id. (emphasis added). The district court order from which Bemis appeals is not an order granting or denying class certification. Rather, the district court order granted a motion to strike brought by the Commission. Indeed, neither party moved to certify a class, and such a motion was never before the district court. Bemis fails to explain in its brief how this Court has jurisdiction to consider an interlocutory appeal from the district court's order granting the Commission's motion to strike. While it is true that the district court's order struck Bemis's asserted defense that the Commission failed to certify the class pursuant to Rule 23, the order did not grant or deny class certification. Federal Rule of Civil Procedure 23(f) is clear and unambiguous as to its application. Only those orders granting or denying class certification may be pursued in the appellate courts immediately. The Committee Notes discussing the rule are equally clear about the rule's limited scope, and state that an "[a]ppeal from an order granting or denying class certification is permitted in the sole discretion of the court of appeals. No other type of Rule 23 order is covered by this provision." Id. (emphasis added). In fact, a Rule 23 order is not even at issue here. The Commission brought its motion to strike pursuant to Rule 12(f). It is a "fundamental principle" that this Court is a court of limited jurisdiction, and may consider only matters that fall within its jurisdiction as provided by Congress. See In re Application of County Collector of Winnebago, Illinois, 96 F.3d 890, 895 (7th Cir. 1996). The limited jurisdiction that Rule 23(f) provides does not extend to orders denying a motion to strike, and this court cannot consider such an appeal. Indeed, this Court has taken a narrow view of its jurisdiction over interlocutory appeals. See Abrams v. Oppenheimer Gov't Sec., 737 F.2d 582, 594 (7th Cir. 1984) (declining to address issue that "would impermissibly expand our limited jurisdiction in this interlocutory appeal"); see also Conticommodity Servs., 826 F.2d at 601 (7th Cir. 1987) (noting that interlocutory appeals are generally disfavored). Thus, because Bemis appeals from a Rule 12(f) order granting the Commission's motion to strike, rather than a Rule 23 order granting or denying class certification, this Court has no jurisdiction to consider this issue on interlocutory review, and the petition should be denied. II. BEMIS'S PETITION SHOULD BE DENIED BECAUSE THE REASONING OF THE SUPREME COURT IN GENERAL TELEPHONE REMAINS VALID AND APPLICABLE TO THE PRESENT CASE. Even if this Court were to determine that it had jurisdiction to consider this matter, this Court should still deny Bemis's petition for interlocutory review. This Court has recognized that Rule 23(f) appeals are appropriate in three situations: (1) "death knell" cases where a decision against certification would cause the representative plaintiffs to dismiss their claims because of the cost of continued litigation; (2) where approval of a class would force a defendant to settle without regard to the merits of the case; and (3) where the case will further develop the law in class action cases. See Blair v. Equifax Check Serv., Inc., 181 F.3d 832, 833-35 (7th Cir. 1999). None of these situations applies to the instant case. Bemis asserts that an appeal is warranted in this case because the issue presented would advance class action law. (See Petitioner's Brief at 2).<1> However, the Supreme Court clearly held in General Telephone that the Commission is not subject to the private class action requirements of Rule 23, and Bemis cannot distinguish that decision. Because this law is well established, consideration of Bemis's petition will not "further develop the law in class action cases," and the petition should therefore be denied. See Blair, 181 F.3d at 833-35. Bemis argues that this case is not subject to the Supreme Court's analysis in General Telephone because, unlike General Telephone: (1) the Commission here seeks compensatory and punitive damages; (2) this case allegedly does not involve a pattern or practice of discrimination; and (3) the instant matter involves harassment allegations that are "individual" in nature. (Petitioner's Brief at 7-8). These purported distinctions do not alter the main holding of General Telephone that the Commission need not comply with the requirements of Rule 23. Each of Bemis's arguments is addressed in more detail below. A. The Holding of General Telephone Applies to Suits in Which the Commission Seeks Compensatory and Punitive Damages. Bemis argues that the Civil Rights Act of 1991, 42 U.S.C. § 1981a, which authorizes the Commission to seek compensatory and punitive damages, somehow undermines the Supreme Court's holding in General Telephone and requires the Commission to comply with the requirements of Rule 23 when seeking these types of damages. (Petitioner's Brief at 13). As properly found by the district court, however, the holding of General Telephone is not affected by the nature of the relief sought by the Commission, and the Supreme Court's reasoning applies equally to cases where the Commission seeks punitive and compensatory damages.<2> In General Telephone, the Supreme Court addressed the issue of "whether an action, however it is styled, brought by a Government agency to enforce the federal law with whose enforcement the agency is charged is subject to the requirements of Rule 23." 446 U.S. at 323 n.5. The Court concluded that "Rule 23 is not applicable to an enforcement action brought by the EEOC in its own name and pursuant to its authority under § 706 to prevent unlawful employment practices." Id. at 323. In finding that the Commission was not subject to the requirements of Rule 23, the Supreme Court did not condition its holding on the nature of the relief sought by the Commission. In fact, to the extent that the Supreme Court did address the character of relief, the Court noted that the potential for specific relief for an aggrieved individual does not make the EEOC a proxy for that individual, or a representative of the individual subject to the requirements of Rule 23. See General Telephone, 446 U.S. at 326 ("Although the EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay or benefits denied, on behalf of discrimination victims, the agency is guided by ‘the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.'" (quoting 118 Cong. Rec. 4941 (1972)). Moreover, the Supreme Court, without relying on the type of relief sought, discussed the incompatibility of Rule 23 and the Commission's enforcement authority. The Court stated that [i]t is also apparent that forcing EEOC civil actions into the Rule 23 model would in many cases distort the Rule as it is commonly interpreted and in others foreclose enforcement actions not satisfying prevailing Rule 23 standards but seemingly authorized by § 706(f)(1). The undesirability of doing either supports our conclusion that the procedural requirements of the Rule do not apply. Id. at 329-330. The Supreme Court further analyzed Rule 23's prerequisites of numerosity, commonality, typicality, and adequacy of representation, noting "some of the obvious and more severe problems" that their application to the Commission would cause. Id. at 330-31. The Court indicated that applying the numerosity requirement to the Commission would often be problematic as Title VII can apply to employers with as few as fifteen employees, and the Commission often pursues actions on behalf of aggrieved employees that would not satisfy the numerosity requirement. Id. The Court further noted that the typicality requirement is not consistent with the Commission's role in enforcing Title VII, as the Commission is not limited to the claims presented by the charging party, but can pursue "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint." Id. at 331. Finally, the Court recognized that imposing Rule 23's adequate- representation requirement on the Commission would be problematic because the Commission "is authorized to proceed in a unified action and to obtain the most satisfactory overall relief even though competing interests are involved and particular groups may appear to be disadvantaged." Id. These problems identified by the Supreme Court in applying Rule 23's requirements to the Commission are not altered by the fact that the Commission is seeking compensatory and punitive damages in this matter. Thus, the Supreme Court's clear holding in General Telephone that the Commission need not comply with Rule 23 is equally applicable to the present case.<3> Finally, the only federal appellate court to address this issue to date resolved the matter in favor of the EEOC, stating that General Telephone Company held that the EEOC may seek classwide relief without being certified as a class representative under Rule 23 . . . Because the Court reached this conclusion without any qualifications based on the type of relief sought, there is no principled reason to depart from General Telephone Company and require class certification under Rule 23 simply because the EEOC is now authorized to sue for damages in addition to equitable relief. EEOC v. Dinuba Medical Clinic, 222 F.3d 580, 588 (9th Cir. 2000). Thus, the district court properly found that the nature of the damages sought in this case does not offer a basis for departing from the well-settled rule established by the Supreme Court in General Telephone. Bemis's petition to appeal should therefore be denied, as it presents only an issue of well-settled law that, by its nature, does not advance the law governing private class action lawsuits. See Blair, 181 F.3d at 833-35. B. General Telephone Does Not Require the Commission To Plead a Pattern-or-Practice Claim; Nonetheless, Such a Claim Is Clearly Pled by the Commission's Complaint. Bemis further argues that this case is distinguishable from General Telephone because it does not involve a pattern-or-practice claim. (Petitioner's Brief at 22). To the extent Bemis means only to say that the EEOC did not cite § 707 in its Complaint, see id., this argument makes no sense because General Telephone was not brought under § 707 either. Thus, the holding and rationale of the decision explicitly pertains to suits like this one, brought under § 706. The Court specifically stated, We hold, therefore, that the EEOC may maintain its § 706 civil actions for the enforcement of Title VII and may seek specific relief for a group of aggrieved individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23. Id. at 333-34. Moreover, nothing in the Supreme Court's reasoning or rationale suggests that General Telephone should be limited to pattern-or-practice cases. Indeed, the Supreme Court's expressed concerns about the difficulties the Commission would face in complying with the requirements of Rule 23 would apply equally to cases that do not present a pattern-or-practice of discrimination. Id. at 330-31. In fact, the Commission would likely have more difficulty establishing the Rule 23 elements of commonality and typicality in cases that do not present a pattern-or-practice of discrimination. To the extent Bemis means that the claims in cases controlled by General Telephone must be "pattern-or-practice" claims, even if pleaded under § 706, its argument makes no sense because if there were no claims of a class nature there would be no basis for the application of Rule 23. This argument is also beside the point because the Commission's Complaint in this matter clearly pleaded facts that could establish a pattern-or-practice of discrimination, as that term is commonly used. The Supreme Court has emphasized that the pattern-or- practice language in § 707(a) of Title VII was not intended as a term of art, and that the words reflect only their usual meaning. See Teamsters v. United States, 431 U.S. 324, 336-337 n.16 (1977). The Commission has therefore sought to prove a pattern-or-practice of discrimination in suits filed under § 706, without being restricted to the § 707 enforcement provision. See, e.g., EEOC v. Walner & Associates, 91 F.3d 963, 965 (7th Cir. 1996); EEOC v. Gurnee Inn, 914 F.2d 815, 816 (7th Cir. 1990). In this case, the complaint refers to unlawful employment practices affecting five named individuals, and a class of black employees, and seeks relief for the named individuals and the class. (Appendix at 11). It is clear that the complaining parties share the experience of numerous incidents of harassment. (Appendix at 12-13). Bemis's attempts (to the extent there were any) to prevent and to correct the harassment in question would be relevant to each claim. Thus, much of the relevant evidence in the case is likely shared by the individual claimants, and the Commission therefore properly pleaded the facts necessary to prove a pattern-or-practice of discrimination. See, e.g., Gurnee Inn, 914 F.2d at 816 (testimony of eleven female former employees established that defendant's employee had engaged in a pattern of sexual harassment and the defendant had done nothing to correct his conduct). Thus, the district court properly found that the Commission need not plead a pattern-or-practice claim to be exempt from the requirements of Rule 23. Even if such a requirement were necessary, however, the Commission has pled facts that could support a finding of a pattern-or-practice of discrimination. Bemis's petition to appeal should therefore be denied, as it presents only an issue of well-settled law established by the Supreme Court in General Telephone and therefore will not advance the law governing private class action lawsuits. See Blair, 181 F.3d at 833-35. C. The Supreme Court's Holding in General Telephone Is Applicable To Harassment Claims Finally, Bemis argues that the Commission should be required to comply with Rule 23 because, unlike General Telephone, the case here involves issues of harassment. See Petitioner's Brief at 20-21. Bemis repeatedly points to the "individual" nature of harassment claims in arguing for class certification. Id.<4> Bemis's objection that the "individual" nature of harassment claims should require the Commission to comply with the class action certification requirements is really an objection based on the commonality and typicality requirements of Rule 23. However, the Supreme Court in General Telephone specifically discussed the difficulty of applying Rule 23's requirements of numerosity, commonality, typicality, and adequacy of representation to the Commission as a basis for not requiring the Commission to comply with these requirements. General Telephone, 446 U.S. at 330-31. In fact, the Supreme Court specifically noted that the typicality requirement is not consistent with the Commission's role in enforcing Title VII, as the Commission is not limited to the claims presented by the charging party, but can pursue "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint." Id. at 331. Thus, the Supreme Court recognized that the requirements of Rule 23 do not comport with the Commission's role in enforcing Title VII, and should not be imposed upon the Commission. The Court did not limit its holding to specific types of claims that are not "individual" in nature.<5> Rather, the Court broadly held that "Rule 23 is not applicable to an enforcement action brought by the EEOC in its own name and pursuant to its authority under § 706 to prevent unlawful employment practices." Id. at 323. Thus, the Supreme Court's decision in General Telephone applies equally to all Title VII actions, including harassment cases, and Bemis's attempt to distinguish this binding precedent is of no avail. The district court therefore properly found that the Commission need not comply with the requirements of Rule 23, even in a case alleging harassment. CONCLUSION This Court has no jurisdiction to consider Bemis's petition for an interlocutory appeal because the district court did not issue an order granting or denying class certification, as required by Rule 23(f). Even if this Court were to determine that it had jurisdiction to consider this matter, this Court should still deny Bemis's petition for interlocutory review. The Supreme Court clearly held in General Telephone that the Commission is not subject to the requirements of Rule 23, and Bemis cannot distinguish that decision. Because this law is well established, and consideration of Bemis's petition will not "further develop the law in class action cases," the petition should be denied. Respectfully submitted, Nicholas M. Inzeo Acting Deputy General Counsel Philip B. Sklover Associate General Counsel Carolyn L. Wheeler Assistant General Counsel ___________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 4635 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed R. App. P. 32(a)(5). _____________________ Joseph A. Seiner December 10, 2001 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on this 10th day of December, 2001, two copies of the attached brief were sent via federal express overnight mail to: Thomas P. Krukowski, Esq. Kruskowski & Costello, S.C. 7111 W. Edgerton Avenue Milwaukee, WI 53220 __________________________ Joseph A. Seiner EEOC / Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 December 10, 2001 ********************************************************************************** <> <1> Bemis does not argue that the other two grounds recognized by this Court for granting a Rule 23(f) appeal are applicable (i.e., it is not a case where a decision against certification caused the representative plaintiffs to dismiss their claims because of litigation costs or a case where approval of a class forced the defendant to settle without regard to the merits of the case). See Blair,181 F.3d at 833-35. Because the district court did not enter an order granting or denying certification, the Commission finds these two grounds for appeal inapplicable as well. Moreover, Bemis has not asserted that the district court’s decision not to require the Commission to comply with Rule 23 will cause the defendant to settle the matter without regard to the merits. <2> The Supreme Court recently made it clear that § 1981a remedies are provided in addition to those already available under § 706. See Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 121 S. Ct. 1946, 1951 (2001). Compensatory and punitive damages are available in actions brought pursuant to § 706 because Congress added them through § 1981a. The EEOC’s status as a litigant was not changed by the enactment of § 1981a, however, and Bemis cannot point to any language in the statute or legislative history to suggest otherwise. <3> Bemis’s argument that the EEOC’s pursuit of monetary damages in this case makes the case “individualized in nature” is also of no avail. (See Petitioner’s Brief at 17). In General Telephone, the EEOC sought back pay for the aggrieved workers. 446 U.S. at 321. The calculation of back pay involves potentially complex issues of qualifications and mitigation that are unique to each employee, and are “individualized in nature.” Nevertheless, the Supreme Court still held Rule 23's requirements inapplicable to the Commission. Id. at 333. <4> As discussed in Section II.B., supra, the harassment claims at issue here have many elements in common, as the complaining parties shared the experience of numerous incidents of harassment. (Appendix at 12-13). Bemis therefore overstates the degree to which harassment claims are “individual” in nature. If this were a private lawsuit Bemis would be arguing that class certification is inappropriate because of the individual nature of the claims, but courts have not hesitated to certify classes in appropriate harassment cases. See, e.g., Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1290 (8th Cir. 1997); Neal v. Director, D.C. Dep’t of Corrections, 1995 WL 517249 (D. D.C. 1995), rev’d on ground that discovery sanction too severe, 93 F.3d 801 (D.C. Cir. 1996); Sims v. Montgomery County Commission, 766 F. Supp. 1052, 1061 (D. Ala. 1991). <5> The Supreme Court was obviously aware of harassment cases at the time General Telephone was decided. While the Supreme Court ultimately did not endorse harassment causes of action until after General Telephone (see Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)), plaintiffs had been successfully pleading harassment claims prior to this decision. See, e.g., Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972).