No. 09-7036 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________________________________________ MONICA BROOKS and TRACEE TAYLOR, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. DISTRICT HOSPITAL PARTNERS, L.P., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the District of Columbia No. 01-2361 The Honorable Henry H. Kennedy, Jr. ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF PLAINTIFFS-APPELLANTS ____________________________________________ JAMES L. LEE JENNIFER S. GOLDSTEIN Deputy General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E. Assistant General Counsel Washington, D.C. 20507 (202) 663-4733 Jennifer.goldstein@eeoc.gov CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A) Parties and Amici. Except for the Equal Employment Opportunity Commission, appearing as amicus curiae on behalf of Plaintiffs-Appellants, all parties, intervenors, and amici appearing before the district court and in this Court are listed in the Brief for Plaintiffs-Appellants. (B) Rulings Under Review. References to the rulings at issue appear in the Brief for Plaintiffs-Appellants. (C) Related Cases. There are no related cases. TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES. . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . .v STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .1 A. EEOC Charge and Investigation . . . . . . . . . . . . .2 B. District Court Decisions . . . . . . . . . . . . . . .5 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .8 STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .9 ARGUMENT The district court should have applied the single filing rule consistently to hold the plaintiffs satisfied administrative exhaustion requirements because, regardless of the procedural context in which the exhaustion issue arises, the critical factor is always the similarity of the two groups' claims . . . . . . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . 11 Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . 12 Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . 14 Calloway v. Partners Nat'l Health Plans, 986 F.2d 446 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 12, 22 Cook v. Boorstin, 763 F.2d 1462 (D.C. Cir. 1985) . . . . . 11, 13 *DeMedina v. Reinhardt, 686 F.2d 997 (D.C. Cir. 1982) . . . . . . . . . . . . . . . 12, 13, 14, 18 *Foster v. Gueory, 655 F.2d 1319 (D.C. Cir. 1981) . . . . . . 8, 12, 13, 14, 15, 17, 18, 19, 20 Gen'l Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) . 19, 20, 21 Griffin v. Dugger, 823 F.2d 1476, 1493 (11th Cir. 1987) . . . 19 Hartman v. Duffey, 88 F.3d 1232 (D.C. Cir. 1996) . . . 14, 15, 23 Kizas v. Webster, 707 F.2d 524 (D.C. Cir. 1983). . . . . . . . 11 LaShawn v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) . . . . . . . 11 Martinez v. Oakland Scavenger Co., 680 F. Supp. 1377 (N.D. Calif. 1987) . . . . . . . . . . . . . . . . . . . . . 22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . 11, 16 *Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . 14, 15 Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986) . . 12, 17 *Authorities upon which we chiefly rely are marked with asterisks. Tolliver v. Xerox Corp., 918 F.2d 1052 (2d Cir. 1990) 10, 20, 22 Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987) . . . . . . . 21 Wheeler v. American Home Prods. Corp., 563 F.2d 1233 (5th Cir. 1977) . . . . . . . . . . . . . . . . . . . . .12, 22 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) . . . 11 STATUTES and REGULATIONS Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 9 42 U.S.C. § 2000e-5(e)(1) . . . . . . . . . . . . . . . . 11 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . . . 11 29 C.F.R. § 1601.24(a) . . . . . . . . . . . . . . . . . . . . 17 GLOSSARY EEOC . . . . . . . . . . . . Equal Employment Opportunity Commission GWUH . . . . . . . . . . . . George Washington University Hospital MST . . . . . . . . . . . . . . . . . . . . Multi-Skilled Technician STATEMENT OF THE ISSUE<1> Whether the district court should have applied the single filing rule consistently to hold the plaintiffs satisfied administrative exhaustion requirements because, regardless of the procedural context in which the exhaustion issue arises, the critical factor in deciding whether plaintiffs can rely on another's charge is always the similarity of the parties' claims. STATEMENT OF FACTS In November 1998, defendant George Washington University Hospital ("GWUH") eliminated the position of Nursing Assistant and replaced it with a new position called Multi-skilled Technician ("MST"). JA72. To be considered for the MST position, both internal applicants (i.e. former Nursing Assistants) and external applicants had to pass the same three screening tests. JA72-73. The tests sought to measure reading, writing, and arithmetic skills. JA72. Upon passing the test, internal and external applicants faced diverging paths to hiring. JA73. GWUH entered internal applicants into a ten-part training program, with ten examinations. GWUH guaranteed internal applicants who successfully completed the training program an MST position. Id. By contrast, external applicants who passed the initial screening tests were evaluated against other successful external applicants based on their skills and were not guaranteed an MST position. Id. GWUH did not enter external applicants into any training program. Id. A. EEOC Charge and Investigation In April 1999, Renae Marable, a former Nursing Assistant, filed a charge on her own behalf and on behalf of other former Nursing Assistants alleging the tests discriminated on the basis of race.<2> JA167. The charge stated that Nursing Assistants had to pass screening tests that were "not job related to the skills required for the [MST position]" and were "discriminatory." JA168. The charge also stated, incorrectly, that GWUH did not require external applicants to take the screening tests. Id. During the course of the investigation, the EEOC investigator learned that GWUH required external applicants "to pass the same three tests that were administered to the Nursing Assistants," and the EEOC conveyed that information to counsel for Marable. JA219. The EEOC received data from the parties on both internal and external applicants in the course of investigating whether the tests caused an unlawful disparate impact on the basis of race. See JA222 (chart reflecting test scores of each applicant by race, and by status as "Internal" or "External" applicant). The EEOC investigator examined whether the test discriminated against all applicants, as reflected in a letter from the EEOC investigator showing data on the total number of applicants who took the tests, with pass and fail numbers broken down by race. JA434. After reviewing the data, the EEOC investigator stated that she determined the tests "may have a disparate impact on black and Hispanic examinees," and therefore requested that GWUH perform a validation study of the three screening tests to measure whether the selection procedure is related to job performance. JA210. GWUH contracted an outside researcher, who performed a broad validation study. R.55-2. The study did not simply measure how effectively the screening tests predicted internal applicants' performance in the training program – GWUH's stated reason for administering the screening tests to internal applicants and the basis for the district court's denial of a class of both internal and external applicants. Instead the study looked extensively at "whether a relationship exists between the knowledge/skills assessed by the three screening instruments, and the knowledge/skills needed for MSTs to perform their expected tasks." R.55-2 at 2.<3> The need to measure likely performance as an MST was the reason GWUH gave for administering the tests to external applicants. JA76. Indeed, the validation study explicitly assessed how predictive or otherwise appropriate the test was for external applicants. See, e.g., R.55-2 at 4 ("External MST candidates who met the higher level application requirements scored higher on the writing and math screening instruments, compared to internal MST candidates."). After receiving the validation study, the EEOC investigator requested further information about external applicants, including all external applications; a listing of external applicants who did not meet various requirements, by race; and "[a]ny alternative selection instruments or techniques considered by Respondent in filling the MST jobs, both using internal and external personnel." JA220-21. On August 10, 2001, the EEOC issued a determination letter and right to sue notice. The letter noted that the reading and writing tests "were administered to internal and external applicants" and "did in fact have a disparate impact on Black candidates," but nonetheless were not unlawful under Title VII because they had criterion related validity and were content valid, and no alternative selection procedures offered the same advantages as the screening tests. JA343. Marable and five other named individuals filed a complaint on behalf of themselves and all similarly-situated black former Nursing Assistants. JA39. After some discovery, plaintiffs moved to certify a class consisting of all black applicants for MST position – both internal and external – who failed to pass the screening tests. B. District Court Decisions On August 31, 2006, the district court denied certification of a broad class of applicants. JA71. The court relied on GWUH's contention that the purpose of the screening tests was different for internal applicants than for external applicants. GWUH maintained that for internal applicants, the tests were designed to measure the ability to succeed in the training program, and for external applicants, the tests were designed to measure whether the applicants possessed the minimum proficiency in reading, writing, and math required for the job. The court accordingly held the plaintiffs failed to demonstrate commonality. JA75-80. The court rejected certifying a subclass of external applicants because the proposed subclass lacked a class representative. JA83-84. The same day that the district court denied class certification, the plaintiffs moved to add as named plaintiffs Monica Brooks and Tracee Taylor, two external applicants who failed the screening tests, in order to cure the lack of external applicants to serve as class representatives for a subclass of rejected external applicants. JA85, 94. The district court permitted intervention in an order dated May 29, 2007. JA223. The court addressed administrative exhaustion and, in particular, the "single-filing rule." JA227. The court held that the requirements of the single- filing rule had been met, for Marable had filed an EEOC charge on behalf of herself and all Nursing Assistants challenging the screening tests. Id. Marable had not included external applicants because she initially was unaware they were subject to the screening test – a fact uncovered during the EEOC investigation. JA228. The EEOC investigation thus encompassed external applicants, and GWUH was "well aware" of this expanded scope of the investigation. Id.; see also id. (Marable's allegations in her EEOC charge "bore a ‘reasonable relationship' to the complaint made here by the external applicants and their claim here could ‘reasonably be expected' to have grown out of the investigation of Marable's EEOC charge"). The court accordingly held that the exhaustion requirement was "not an impediment" to the external applicants' motion to intervene. Id. Plaintiffs moved to certify a class of black external applicants who failed one or more of the screening tests. The district court denied the plaintiffs' motion not on Rule 23 grounds, but on the ground that "none of the proposed class members, most importantly the named representatives, has exhausted administrative remedies." JA335. The court stated it had not addressed the administrative exhaustion issue previously, and only now was that issue "front- and-center." Id. The court did acknowledge, however, that it had allowed Brooks and Taylor to intervene under the single-filing rule. The court also stated it could not evaluate whether to apply the single filing rule to a non-filing plaintiff where the charge alleges discrimination against a class because Marable's charge was not before the court.<4> JA338-39. After the district court summarily denied plaintiffs' motion for reconsideration, the Brooks plaintiffs moved to sever their claims from those of the internal applicants. JA517. On February 24, 2009, the district court granted the motion and severed the two groups of plaintiffs. JA535. That same day, the court ordered the plaintiffs to show cause why the court should not dismiss all claims asserted by Brooks and Taylor. JA559. The parties responded and the district court, without discussion of the issue, issued an order on March 10, 2009, dismissing the Brooks plaintiffs' claims. JA571. SUMMARY OF ARGUMENT The purpose of Title VII's requirement that individuals file an administrative charge before commencing a lawsuit is twofold: providing notice to the employer and permitting possible conciliation by the EEOC where agency finds reasonable cause to believe the employer has engaged in unlawful discrimination. Courts have long recognized that the charge filing requirement may be exhausted not only directly, but also vicariously, by virtue of the single filing rule. To determine when it is appropriate to apply the single filing rule, this Court does not allow the procedural posture of the case to govern the vicarious exhaustion analysis. Instead of creating an artificial bright-line rule, this Court invokes the purpose of the charge filing requirement, and applies the single filing rule where the claims of two plaintiffs are "so similar that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges." Foster v. Gueory, 655 F.2d 1319, 1322 (D.C. Cir. 1981). The touchstone is similarity, and sufficient similarity exists in this case. Both the Marable charge and the plaintiffs here allege the three screening tests had an unlawful discriminatory impact on the basis of race. Both Marable plaintiffs and the plaintiffs here sought the same MST position. GWUH made both groups pass the screening tests as part of the hiring process for the MST position. The actual EEOC investigation encompassed both internal and external applicants, and the investigator explicitly asked GWUH to include both groups of applicants in the validation study. The EEOC ultimately concluded it did not believe the tests were unlawful, and there is no reason to believe the administrative process would have turned out differently had the Brooks plaintiffs filed a charge directly. Evaluating this case in light of the purposes of a charge – notice and an opportunity to conciliate – the claims of the Marable plaintiffs and the Brooks plaintiffs were sufficiently similar to hold that the Brooks plaintiffs vicariously exhausted their administrative requirements. STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is the agency charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises issues related to the breadth of the EEOC's investigation of an administrative charge alleging race discrimination. This case also raises a significant procedural issue that may affect the ability of individuals to bring Title VII actions. Because successful enforcement of Title VII depends significantly upon such private actions, the Commission has a strong interest in the outcome of this appeal. We therefore seek to present our views to this Court. ARGUMENT The district court should have applied the single filing rule consistently to hold the plaintiffs satisfied administrative exhaustion requirements because, regardless of the procedural context in which the exhaustion issue arises, the critical factor is always the similarity of the two groups' claims. When first asked to decide whether the plaintiffs had vicariously exhausted their administrative requirements by virtue of the single filing rule, the district court determined that the plaintiffs had done so, and allowed them to intervene. The district court subsequently reversed itself: when asked to certify a class of external applicants, the court held that it would not do so because the plaintiffs – the putative class representatives – had not exhausted their administrative remedies, even when considering the single filing rule. After it severed the external applicants' individual claims, the court again declined to apply the single filing rule, and it dismissed the individual claims. The Commission submits that the district court's initial decision to apply the single filing rule to plaintiffs' claims was proper, especially in light of this Court's precedent and the underlying rationale for the single filing rule. Cf. Tolliver v. Xerox Corp., 918 F.2d 1052, 1059 (2d Cir. 1990) (in analogous case, views of EEOC are "entitled to considerable weight"). In our view, there was no principled reason for the court to depart from its initial decision and to apply a different rule at the intervention stage than at the latter class certification and dismissal stages. Cf. LaShawn v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) ("Inconsistency is the antithesis of the rule of law."). The court therefore erred when it denied class certification and dismissed the plaintiffs' action based upon their purported failure to exhaust administrative remedies. Title VII generally requires that a timely charge be filed "by or on behalf of the person aggrieved," and that a civil action be initiated within 90 days of the Commission's right-to-sue notice. 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1);<5> see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99 (1973). It has long been recognized by the Supreme Court that these administrative provisions do not require that a charge be filed by each and every individual seeking relief under Title VII. See generally Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975). Indeed, it is well- settled in this Court and in the other courts of appeals that a plaintiff may rely on the EEOC charge of another individual to satisfy the administrative exhaustion requirement. See Cook v. Boorstin, 763 F.2d 1462, 1465 (D.C. Cir. 1985) (noting Circuit precedent that "allow[s] the exhaustion requirement to be satisfied vicariously"); DeMedina v. Reinhardt, 686 F.2d 997, 1012-13 (D.C. Cir. 1982); Foster v. Gueory, 655 F.2d 1319, 1322 (D.C. Cir. 1981); see also Snell v. Suffolk County, 782 F.2d 1094, 1100-01 (2d Cir. 1986); Wheeler v. American Home Prods. Corp., 563 F.2d 1233 (5th Cir. 1977); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876 (8th Cir. 1977); Calloway v. Partners Nat'l Health Plans, 986 F.2d 446 (11th Cir. 1993). This vicarious exhaustion rule – known as the single filing rule – applies both in class action cases, and in cases where a plaintiff seeks to join individual actions. See, e.g., Foster, 655 F.2d at 1322 (single filing rationale "has been extended to situations where no class action had been certified"); Snell, 782 F.2d at 1101 (decertified class action) (relying on Foster); Wheeler, 563 F.2d 1233 (decertified class action) (cited in Foster, 655 F.2d at 1322); Allen, 554 F.2d 876 (individual case) (cited in Foster, 655 F.2d at 1322). The district court stated that when exhaustion is considered in the class action context, this Court applies a rigid, "bright-line rule" demanding that a putative class representative exhaust administrative remedies directly, and not vicariously. JA336. The district court was mistaken, for this Court's precedents do not support the premise that any bright-line rule exists. This Court consistently has held that the touchstone for applying the single filing rule, whatever the procedural context, is similarity between the charge filed and the claims of those who did not file. See Foster, 655 F.2d at 1322 ("the critical factor . . . is the similarity of the two plaintiffs' complaints"); DeMedina, 686 F.2d at 1012 (same); see also Cook, 763 F.2d at 1466 ("The test set forth in Foster for vicarious exhaustion hinges on functional identity of claims," though specific circumstances giving rise to grievances of each may differ). Similarity of the claims is the touchstone because that is the inquiry that will reveal whether the purpose of the administrative charge requirement has been met. Indeed, this Court consistently looks to the purpose of the charge requirement, and not some rigid bright-line rule tied to the procedural context, to guide it in determining whether vicarious exhaustion is appropriate. The purpose of the administrative charge requirement is to "enabl[e] the EEOC to provide the alleged wrongdoer with notice and to permit possible conciliation." Foster, 655 F.2d at 1323; see also DeMedina, 686 F.2d at 1013 (same). Where the claims of one individual are sufficiently similar to the claims of the individual who filed a charge, no purpose is served by requiring the filing of multiple charges. Id. As the Fifth Circuit explained in a frequently-quoted opinion: It would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume that the next one would be successful. Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968) (quoted in Foster, 655 F.2d at 1322, and DeMedina, 686 F.2d at 1013 n.11). This Court accordingly applies the single filing rule where the claims of two plaintiffs are "so similar that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges." Foster, 655 F.2d at 1322. The district court maintained that this Court's precedents set out a contrary bright-line rule requiring direct exhaustion of administrative remedies by "at least one named plaintiff" in a class action. See JA336-37. The district court was mistaken, for none of this Court's decisions that the district court relied on to devise this bright-line rule holds that a class representative must have exhausted directly, rather than vicariously. The Court in Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1434-35 (D.C. Cir. 1988), for example, addressed an altogether different issue that arose because the defendant in the lawsuit had never been named as a respondent in the EEOC charge and thus had no notice of the alleged violations. The Court did not purport to state an exhaustion rule applicable to the situation in this case, where plaintiffs seek to rely on the charge of another individual complaining about the identical allegedly discriminatory screening tests, administered in the same time frame, to applicants for the same job. The Court in Hartman v. Duffey, 88 F.3d 1232, 1235 (D.C. Cir. 1996), merely acknowledged that exhaustion by one class member satisfies the requirement for the other class members, as was the factual backdrop for that case. The Hartman Court did not indicate the single filing rule demanded such a factual scenario. In fact, the Hartman decision suggests a contrary understanding of the single filing rule, for the Court concluded that the vicarious exhaustion question was not affected by the procedural posture of the case. See id. at 1236 (analysis of exhaustion question not altered by change in status of non-charge filers from members of the class to intervenors in class action). Finally, the district court's reliance on Foster, 655 F.2d 1319, was particularly inapt as Foster was not a class action case at all. Moreover, the Foster Court held that it was appropriate to extend the single filing rule beyond the case in which "one member of the plaintiff class has met the filing requirement," to individual cases in which the plaintiffs' claim was sufficiently similar to the charge filer's claim. Id. at 1321-22. In Oatis, 398 F.2d 496, the seminal case upon which this Court relied in developing its single filing doctrine, the Fifth Circuit rejected the notion that the procedural posture mattered to the vicarious exhaustion analysis. The Oatis court held that non-filing plaintiffs, so long as their claims were sufficiently similar to those of the filing plaintiff, not only could join the class, but also could serve as class representatives of a subclass consisting of employees of their particular departments. Id. at 499. Under the Foster similarity standard, the district court correctly held in its initial ruling (allowing the Brooks plaintiffs to intervene) that the single filing rule should apply. As the district court emphasized in that ruling, it was the EEOC investigation that uncovered the evidence that external applicants had to pass the screening tests, and so the investigation plainly encompassed external applicants. GWUH had the requisite notice, for it was "well-aware" of the expanded scope of the investigation. JA228. The EEOC did not conciliate the claims of any applicants, external or internal, due to the fact that the EEOC determined that the statute had not been violated.<6> Specifically, the EEOC investigator found that the screening tests were administered to both internal and external applicants and had a disparate impact on black applicants, but the investigator concluded that the screening tests were content valid and that alternative selection procedures did not offer the same advantages as those used. The EEOC investigator, before reaching this conclusion, specifically requested of GWUH's counsel data on external applicants and information on "[a]ny alternative selection instruments or techniques considered by respondent in filling the MST jobs, both using internal and external personnel." JA220-21 (emphasis added). Moreover, the study assessing the validity of the tests looked extensively at how well the tests predicted successful MST job performance – the reason GWUH gave for administering the tests to external applicants. Given this evidence, it is thus reasonable to infer that had the EEOC found reasonable cause to believe the screening tests violated Title VII, it would have conciliated the claims of both internal and external applicants. See 29 C.F.R. § 1601.24(a) ("In conciliating a case in which a determination of reasonable cause has been made, the Commission shall attempt to achieve a just resolution of all violations found.") (emphasis added). Conversely, in light of the evidence that the EEOC investigator considered the discriminatory impact of the tests on external applicants at the same time it considered the impact on internal applicants, and that the investigator reached a no cause determination, there is no reason to believe that the administrative process would have turned out differently had the Brooks plaintiffs filed separate EEOC charges. See Snell, 782 F.2d at 1101 (where EEOC did not find cause, "[t]here is scant reason to believe" that the similar claims of non-filing plaintiffs "would have been settled extra-judicially"); cf. Foster, 655 F.2d at 1322 (single filing rule applies where "no conciliatory purpose would be served by filing separate EEOC charges"). Consideration of the tests themselves and of GWUH's reasons for employing them demonstrates that the external and internal applicants' claims are sufficiently similar for purposes of the single filing rule. GWUH required both internal and external applicants to pass the same three screening tests. The fact that GWUH put in place a training program that would enhance the chance that the former Nursing Assistants would be hired as MSTs does not alter the fact that GWUH believed the reading, writing, and math tests were important and effective screening devices for MSTs, whether they came from the internal applicant pool or the external applicant pool. Both the Marable plaintiffs and the Brooks plaintiffs alleged that the tests had a disparate impact on their candidacies for the very same job. Cf. DeMedina, 686 F.2d at 1013 (claims sufficiently similar where plaintiffs both alleged failure to promote from same GS level, and both alleged intentional discrimination, rather than disparate impact); Foster, 655 F.2d at 1322-23 (claims sufficiently similar, even though one group of applicants were union members and other group were not, because both groups alleged they were the "victims of the same discriminatory practices"). This case is thus quite different from Griffin v. Dugger, 823 F.2d 1476, 1493 (11th Cir. 1987), where the Eleventh Circuit held there was insufficient similarity where the charge filer, an employee, claimed his employer's subjective promotion and discipline practices were discriminatory, while the non-charge filer, an applicant, claimed an objective screening examination was discriminatory. Here the allegations of the Marable plaintiffs and the Brooks plaintiffs challenging the very same screening tests were "so similar that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges." Foster, 655 F.2d at 1322. The district court, in holding that it would not certify the Brooks class because the requirements of the single filing rule were not met, emphasized that it previously had held the internal and external applicants' claims were sufficiently dissimilar so as to defeat "commonality" under Rule 23. The district court was operating under an apparent misunderstanding of the differences between Rule 23's commonality requirement and the "similarity" requirement of the single filing rule. Rule 23 demands a showing of commonality to ascertain whether "the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Gen'l Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n. 13 (1982). The single filing rule, by contrast, only requires sufficient similarity to ensure notice to the employer and to afford the Commission the opportunity to conciliate to eliminate the unlawful employment practices. See Foster, 655 F.2d at 1322; see also Tolliver v. Xerox Corp., 918 F.2d 1052, 1059 (2d Cir. 1990) ("whatever differences among the discharged employees might suffice to preclude class certification do not necessarily defeat application of the single filing rule"). Even if the commonality analysis were understood to inform the similarity issue, the Supreme Court's decision in Falcon supports applying the single-filing rule. In Falcon, the Court noted that it agreed that "racial discrimination is by definition class discrimination" but held that merely alleging an employer's discrimination against Mexican-Americans as a group would not support an across-the-board class action attack on all the employer's allegedly unequal employment practices unless the plaintiffs could meet Rule 23's requirements. 457 U.S. at 158-59. The Court specifically rejected the argument that a failure to promote claim would necessarily raise issues sufficiently common to a failure to hire claim to satisfy Rule 23's requirements. Of particular relevance to this case, however, the Court emphasized that if the employer "used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a)." Id. at 159 n.15 (emphasis added); see also Wagner v. Taylor, 836 F.2d 578, 589 (D.C. Cir. 1987) (where putative class alleged employer used biased testing procedure to evaluate both applicants for employment and incumbent employees seeking promotions, proof of the practice "should assure certification of a class containing both actual and potential employees"). The district court expressed concern that permitting the Brooks plaintiffs to proceed "has the potential to excuse plaintiffs from exhausting administrative remedies anytime they can point to a similar charge by a similar plaintiff with respect to the same defendant." JA339. This exception, the court worried, "could swallow the rule." Id. But the district court's concern is obviated by a proper application of the single filing rule because the claims of the non-filer must be sufficiently similar to the claims of the individual who filed to satisfy the purposes of the charge filing requirement. In any event, the point of the single filing rule is to ensure that individuals need not jump through unnecessary and wasteful hoops before pursuing their discrimination claims. If the notice to the employer and an opportunity to conciliate the claims have been achieved, as was the case here, there is no reason to require a separate EEOC charge. Finally, there was no principled reason to dismiss the individual claims of Brooks and Taylor for failure to exhaust after their claims were severed from those of the internal applicants. The district court did not explain its reasoning in dismissing the individual claims. The same factors that led to application of the single filing rule at the intervention stage support application of the rule at this stage: the EEOC investigation of the Marable charge gave notice to GWUH that external applicants were encompassed within the investigation, and the claims of both sets of applicants challenging the screening tests were sufficiently similar so that no purpose would have been served by requiring an additional EEOC charge. The procedural posture should not affect the single filing rule analysis. See Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 450 (11th Cir. 1993) (Title VII plaintiff invoking single filing rule may file separate lawsuit provided claims are sufficiently similar); Tolliver, 918 F.2d 1052 (after class decertification non- charge filing plaintiffs, sufficiently similar to charge-filers, may bring separate individual lawsuits under ADEA); Wheeler, 563 F.2d at 1238-40 (non-filing intervenors in class later decertified may proceed with Title VII claims even though original plaintiffs had all settled their claims) (cited in Foster, 655 F.2d at 1322); Martinez v. Oakland Scavenger Co., 680 F. Supp. 1377, 1389-90 (N.D. Calif. 1987) (after class representatives settled their claims, non-filing plaintiffs permitted to intervene as plaintiffs and pursue Title VII claims); see also Hartman, 88 F.3d at 1236 (procedural posture does not alter single filing analysis). CONCLUSION We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 5,032 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). ______________________ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that I mailed two copies of this brief by first-class mail, postage prepaid, on this 10th day of November, 2009, to the following: S. Micah Salb. Esq. Lippman Semsker & Salb, LLC 7979 Old Georgetown Road Suite 1100 Bethesda, MD 20814-0000 Charles B. Wayne, Esq. Elisha A. King, Esq. Jamie M. Konn, Esq. DLA PIPER LLP (US) 500 Eighth Street, N.W. Washington, DC 20004 Leslie David Alderman, III, Esq. Alderman, Devorsetz & Hora, PLLC 1025 Connecticut Avenue, NW Suite 615 Washington, DC 20036 Susan E. Huhta Washington Lawyers' Committee for Civil Rights & Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, DC 20036 _______________________ Jennifer S. Goldstein EEOC *********************************************************************** <> <1> The Commission takes no position on any other issue raised in this appeal or on the underlying merits of the plaintiffs' claim. <2> In denying the motion to certify the class of external applicants, with Brooks and Taylor as named class representatives, the district court mistakenly indicated that the Marable charge was not in the record. JA339. In fact, the charge and all materials related to the EEOC investigation were submitted prior to the court's ruling. R.10 Exh. 1. <3> The study concluded that the "[k]nowledge and skills assessed by each screening instrument were related to important work MSTs are expected to do." R.55-2 at 3. <4> As indicated supra at n.2, the Marable charge materials were, in fact, before the court. <5> These provisions set out the requirements for non-federal sector employees. Whether federal employees have a stricter exhaustion standard is not at issue in this case. Cf. Kizas v. Webster, 707 F.2d 524, 545-547 (D.C. Cir. 1983) (discussing differences between administrative provisions governing private sector and federal employees). <6> The EEOC's administrative determination that it did not believe the plaintiffs would be able to prove race discrimination has no bearing on the eventual disposition of the merits of the plaintiffs' claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799 (1973).