Page(s)

Cases

Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006)................................................................................ 11

Brown v. Buhman,
822 F.3d 1151 (10th Cir. 2016)........................................................ 13–5

Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53 (2006).................................................................................. 21

Donovan v. Cunningham,
716 F.2d 1455 (5th Cir. 1983).............................................................. 23

EEOC v. American & Efird Mills, Inc.,
964 F.2d 300 (4th Cir. 1992)................................................................. 20

EEOC v. Astra U.S.A., Inc.,
94 F.3d 738 (1st Cir. 1996)............................................................. 21–22

EEOC v. Outback Steakhouse of Florida, Inc.,
75 F. Supp. 2d 756 (N.D. Ohio 1999)............................................ 22–23

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984).................................................................................. 21

FEC v. National Conservative Political Action Committee,
470 U.S. 480 (1985)................................................................................ 20

Gad v. Kansas State University,
787 F.3d 1032 (10th Cir. 2015)............................................................ 11

Ind v. Colorado Department of Corrections,
801 F.3d 1209 (10th Cir. 2015)............................................................ 18

Kifafi v. Hilton Hotels Retirement Plan,701 F.3d 718
(D.C. Cir. 2012)....................................................................................... 17

NAACP v. City of Evergreen, Alabama,
693 F.2d 1367 (11th Cir. 1982)............................................................ 17

Occidental Life Insurance Co. v. EEOC,
432 U.S. 355 (1977)................................................................................ 20

Rio Grande Silvery Minnow v. Bureau of Reclamation,
601 F.3d 1096 (10th Cir. 2010)............................................................ 14

Sheely v. MRI Radiology Network, P.A.,
505 F.3d 1173 (11th Cir. 2007)...................................................... 17–18

WildEarth Guardians v. Public Service Company
of Colorado, 690 F.3d 1174 (10th Cir. 2012)......................... 13–14, 20

Statutes

28 U.S.C. § 1291............................................................................................ 1

28 U.S.C. § 1331............................................................................................ 1

28 U.S.C. § 1343(a)(4)................................................................................... 1

28 U.S.C. § 1345............................................................................................ 1

Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34.... passim

.... 29 U.S.C. § 623(d)..................................................................................... 2

.... 29 U.S.C. § 626(b).............................................................................. 1, 19

.... 29 U.S.C. § 626(f)(4)............................................................................. 2, 6

Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ............................... 19

.... 29 U.S.C. § 216(c)............................................................................... 1, 19

Older Workers Benefit Protection Act........................................................ 6

Other Authorities

Federal Rule of Appellate Procedure 4(a)(1)(B)....................................... 1

EEOC,“Enforcement Guidance on Non-Waivable Employee Rights Under Equal Employment Opportunity Commission Enforced Statutes,” available at https://www.eeoc.gov/policy/docs/ waiver.html................................ 7

Statement of Related Cases

There are no prior or related appeals.

Statement of Jurisdiction

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought this lawsuit to enforce the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34 (“ADEA”). The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(4), and 1345. See also 29 U.S.C. §§ 626(b) and 216(c).

This Court has jurisdiction over this appeal under 28 U.S.C. § 1291 because the district court entered a final judgment that disposed of all claims raised by the parties. R-137.[1] The district court entered a final judgment on June 23, 2016, R‑137, and the EEOC filed a timely notice of appeal on August 22, 2016, R-154, within the sixty days allowed by Fed. R. App. P. 4(a)(1)(B).

Statement of the Issue

The EEOC’s complaint alleged that CollegeAmerica interfered with Debbi Potts’s right to file charges and participate in EEOC proceedings and with the EEOC’s right to receive information from her. Did the district court err in dismissing this claim as moot?

Statement of the Case

The ADEA prohibits an employer from retaliating against an employee because the employee has filed a charge or otherwise participated in an EEOC proceeding, and it prohibits employers from using waiver agreements to interfere with the protected right of an employee to file charges and participate in EEOC proceedings. 29 U.S.C. §§ 623(d) (retaliation), 626(f)(4) (interference). The Commission brought its interference claim after learning that: (1) CollegeAmerica had entered into an agreement with Potts that barred her from contacting any government agency and from giving the EEOC any information that disparaged the company; and (2) the company had sued Potts in state court after she filed her first charge and had alleged in that state action that she was violating the agreement by filing charges with the EEOC. The factual setting that gave rise to these violations is as follows:

The defendant, CollegeAmerica, operates a number of campuses in several states. The charging party, Debbi Potts, was the director of the company’s Cheyenne, Wyoming, campus from January 2009 until she resigned on July 16, 2012. 1TT-37.[2] After resigning, Potts applied for and was awarded unemployment benefits, but CollegeAmerica appealed that award. 2TT-49; App-44.[3] Potts also filed a claim with the Wyoming Department of Workforce Services for $7,000 in unpaid bonuses she had earned while working for CollegeAmerica. 2TT-53. Asserting it did not owe Potts any compensation, CollegeAmerica also contested this claim. 1TT-83.

Eric Juhlin, the defendant’s chief executive officer, contacted Potts in late August 2012 suggesting that they discuss settlement of the two pending state administrative proceedings (one on unemployment benefits and one on her bonus claim). 1TT-78; Ex. A. On August 31 and September 1, Juhlin and Potts communicated by phone and email and exchanged two preliminary drafts of an agreement. 2TT-54–58, 62–63; Ex. 1 at 3; Ex. 3. On September 1, they agreed on a final draft and signed it. 1TT-99–100; App-44. CollegeAmerica agreed to pay Potts $7,000, withdraw its appeal of and opposition to her unemployment-benefits award, and hold her harmless for any agency contact she had initiated before the date of the agreement. App-44. Potts in turn agreed to three provisions. First, she agreed to “refrain from . . . contacting any governmental or regulatory agency with the purpose of filing any complaint or grievance that shall bring harm to CollegeAmerica.” App‑44. Second, she agreed to “direct any complaints or issues against CollegeAmerica . . . that may arise with disgruntled staff, students, or the public at large to CollegeAmerica’s toll free complaint number.” App-44. Third, she agreed to “not intentionally with malicious intent (publicly or privately) disparage the reputation of CollegeAmerica.” App-44.

In early December 2012, Potts exchanged several private online messages via LinkedIn with Kenneth Barnhart, a former CollegeAmerica student and employee. 1TT-37–38; App-45–46. Potts included in those messages a number of comments critical of CollegeAmerica and its top executives. App-45–46. Later that month, Barnhart forwarded a copy of these messages to CollegeAmerica. 1TT-38.

Juhlin testified that he believed that Potts’s statements in these messages violated the promise she made in their September 2012 agreement not to disparage the company. 1TT-117. According to his testimony, he decided in late December to get the $7,000 back, including by suing her if necessary. 3TT-398.

On January 11, 2013, Matthew Gerber, the defendant’s general counsel, sent Potts a demand letter. App-47. Gerber quoted passages from the LinkedIn messages and labeled them “clear violations” of the agreement. App-47. He demanded that she return the $7,000 within thirty days and warned her that CollegeAmerica would sue her if she failed to meet that deadline. App-47.

On January 23, Potts filed a charge with the EEOC and the Wyoming Fair Employment Program. App-48–49. She alleged that CollegeAmerica had discriminated against her on the basis of her age by constructively discharging her and giving her a less desirable severance package than the defendant gave younger employees. App‑48–49. Potts also claimed that the September 2012 agreement violated the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f)(1). App-49.

On February 1, 2013, the Wyoming agency notified CollegeAmerica that Potts had filed a charge against it, but that notice did not require the company to respond in any way. 1TT-38–39; Ex. 8 at 1–2. On March 18, CollegeAmerica received a notice of the charge from the EEOC that asked the company to respond to Potts’s charge by submitting a position statement and answering the attached request for information. 1TT‑39; Ex. 53. One week later, on March 25, CollegeAmerica sued Potts in state court. App-50–51. The company’s complaint alleged breach of contract for violating the 2012 agreement’s non-disparagement clause and sought as relief return of the $7,000. App-50–51.

Between August and October 2013, CollegeAmerica repeatedly took the position in its state court action that any disparaging statements Potts made to the EEOC, whether in a discrimination charge or not, violated the September 2012 agreement, and that the company therefore had the right to discover any documents Potts submitted to the Commission.

On August 12, 2013, for example, in opposing Potts’s motion to dismiss CollegeAmerica’s state court lawsuit, the company stated that Potts had violated the 2012 agreement “through her filing of additional administrative claims against the College, including multiple charges with the EEOC, alleging federal age discrimination.” App-64. CollegeAmerica maintained this position even after Potts warned the company that its position was unlawful. On August 16, Potts responded to the statement just cited by quoting portions of the EEOC’s guidance on employer interference with an employee’s rights under the anti-discrimination statutes, including the statement: “An employer may not interfere with the protected right of an employee to file a charge, testify, assist, or participate in any manner in an investigation, hearing, or proceeding” under the ADEA. App-18 (quoting EEOC’s “Enforcement Guidance on Non-Waivable Employee Rights Under Equal Employment Opportunity Commission Enforced Statutes,” available at https://www.eeoc.gov/policy/docs/ waiver.html). Even after receiving this information, CollegeAmerica sought discovery of all communications Potts had with the EEOC, implying that the non-disparagement clause in the September 2012 agreement applied to anything Potts said to the Commission’s staff in connection with its investigation of her charges. App-67–70, App-72–74.

The Commission sent CollegeAmerica a letter of determination on December 20, 2013, finding that the company’s state lawsuit was retaliatory. App-75–76. The letter also stated that the company was violating the ADEA by interpreting the 2012 agreement to bar Potts from filing charges with the EEOC or participating in its investigations. App-76.

CollegeAmerica’s initial response suggested that the company recognized the problems with the 2012 agreement’s language. It informed Potts and the Commission in early January 2014 that “the College does not currently allege and will not allege at any time in the future that Ms. Potts is liable for breaching the [2012] contract based on the filing of her charges with the Commission.” App-78, App-80. In February 2014, the company filed an amended complaint in its state action disavowing the assertion that Potts violated the 2012 agreement by filing EEOC charges. App-82 n.1. Finally, in August 2014, Gerber stated in an affidavit:

The College does not and will never assert that the Agreement constitutes a waiver of Ms. Potts’s ADEA claims or waives her otherwise unfettered right to file charges of discrimination and cooperate in any proceeding conducted by the EEOC or [state anti-discrimination agencies], whether that proceeding is based on a charge filed by Potts or anyone else.”

App-89–90.

The Commission sued CollegeAmerica on April 30, 2014. R-1. The complaint contended that the defendant had violated the ADEA by: (1) interfering with Potts’s right to file charges with the EEOC and participate in its investigations, and with the EEOC’s right to receive and investigate such charges; (2) using form separation and release agreements that, when applied to other employees leaving the company, interfered with those same rights; and (3) retaliating against Potts by suing her because she had filed a charge. App-22–24.

CollegeAmerica moved to dismiss. R-6. It initially argued that the Commission’s first claim had never presented a justiciable controversy or at least had become moot. R-6 at 2–4. In its reply brief the company additionally argued that the EEOC did not have initial standing to bring the claim. R-11 at 2–6. The company filed in support of its assertions an affidavit signed by its general counsel (Gerber) in August 2014—after the Commission sued.

The district court did not address the EEOC’s standing to bring the claim but instead ruled on mootness grounds. It applied the rule that when a defendant argues that a lawsuit has become moot because it has voluntarily stopped the allegedly unlawful conduct, the defendant must show that it is absolutely clear that the unlawful conduct cannot reasonably be expected to recur. App-34–35. Relying on the company’s two January 2014 letters, its February 2014 amended state court complaint, and Gerber’s August 2014 affidavit, the district court held that CollegeAmerica met that standard. App-34–36.

The district court also dismissed the Commission’s second claim, relating to CollegeAmerica’s form severance agreements, ruling that the EEOC had failed to notify the company of this allegation and to attempt to resolve it in conciliation. App-36–41.[4]

The district court denied CollegeAmerica’s motion to dismiss the EEOC’s retaliation claim, App-42–43, and that claim proceeded to trial. R-121, R-124, & R-126. In the February 2016 pre-trial order in this action, CollegeAmerica reversed itself on how it would interpret the 2012 agreement. Notwithstanding its earlier assurances that it would not rely on the language of the 2012 agreement—on the basis of which the district court had granted the company’s motion to dismiss the EEOC’s interference claim—CollegeAmerica took the position that Potts violated the 2012 agreement by filing charges and giving the Commission information without giving the company prior or contemporary notice of her allegations. App-91–92; 1TT-110–11.

The jury found for the defendant, R-136, and the district court entered judgment on that verdict, R-137.

Summary of Argument

The district court erred in dismissing the EEOC’s interference claim. CollegeAmerica moved to dismiss that claim on the grounds that it presented no case or controversy, arguing both that it had become moot and that the EEOC lacked standing when it filed its complaint. The district court ruled solely on the grounds of mootness. The court recognized that the mootness alleged by College America had been created by CollegeAmerica and that the voluntary cessation doctrine accordingly applied. The district court erred, however, in ruling that the company’s statements met the doctrine’s high standard, especially since the company engaged in repeated violations and never acknowledged that its actions had been unlawful.

Although the district court did not address the standing issue asserted by the company, the EEOC had standing to raise the interference claim. The EEOC showed that both Potts and the EEOC itself had suffered injuries caused by CollegeAmerica’s interpretation of the 2012 agreement, injuries that would likely be redressed by a favorable decision. The EEOC therefore had standing to raise the claim.

Argument

The district court erred in dismissing the

EEOC’s claim that CollegeAmerica interfered with

the EEOC’s and Potts’s rights under the ADEA.

A. The district court erred in ruling that the EEOC’s interference claim was moot.

The district court improperly dismissed the EEOC’s interference claim on the grounds of mootness. The court erred in ruling that CollegeAmerica met its heavy burden to show that the company could not reasonably be expected to use the 2012 agreement to interfere with the Commission’s and Potts’s rights under the ADEA. Mootness is jurisdictional, and this Court accordingly reviews the district court decision de novo. WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1181 (10th Cir. 2012).

Article III of the Constitution authorizes federal courts to address only cases and controversies. Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016). The courts enforce that limitation on their jurisdiction through the standing and mootness doctrines. Id. The plaintiff bears the burden of establishing standing by showing that when it filed its complaint, it was suffering an injury in fact that was caused by the challenged action and will probably be redressed by a favorable judicial decision. Id. at 1164. If something happens after the filing of the complaint that might render the case moot, the defendant bears the burden of establishing that mootness. WildEarth Guardians, 690 F.3d at 1182–83.

Thus CollegeAmerica bore the “‘heavy burden’” here of persuading the court that “‘the challenged conduct cannot reasonably be expected to start up again.’” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The company had to show that “‘it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.’” Id. at 1115 (quoting Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005) (per curiam)). It is too easy for a defendant to stop its unlawful activity temporarily in order to avoid an adverse judgment and then resume the activity after the enforcement action has been terminated. As this Court recognized in Brown, “‘voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.’” 822 F.3d at 1166 (quoting Knox v. Serv. Emps. Int’l Union Local 1000, 132 S. Ct. 2277, 2287 (2012)).

The district court relied on several statements by CollegeAmerica in ruling that the Commission’s interference claim was moot: the letters that the company’s attorney sent the EEOC and Potts in January 2014, the footnote in the company’s February 2014 amended state court complaint, and the affidavit that Gerber signed in August 2014. App‑34–36. None of these statements render the EEOC’s interference claim moot.

Even if the court were justified in relying on the January 2014 letters and the February 2014 amended complaint as trustworthy guarantees of a new and enduring attitude on the company’s part toward Potts’s protected activity, the statements did not eliminate the interference that the Commission was challenging. They addressed only whether Potts violated the 2012 agreement by filing charges with the EEOC. They said nothing about the Commission’s concern that the agreement interfered with Potts’s right to participate in protected activity in other ways besides filing charges, including by giving the EEOC information during the agency’s investigation of her or others’ charges. Indeed, the record suggests that CollegeAmerica did not understand the breadth of the Commission’s interference claim. The defendant’s motion to dismiss the first claim as moot addressed only whether the 2012 agreement waived Potts’s right to file a charge alleging a substantive violation of the ADEA. R-6 at 2–3. It did not discuss at all whether the agreement’s promises applied to the other ways Potts might participate in an EEOC investigation beyond filing a substantive age charge.

The affidavit that Gerber signed in August 2014, after the Commission sued, went somewhat further than the college’s January and February statements. The affidavit stated:

App-89–90.

The question thus is whether Gerber’s August 2014 affidavit met CollegeAmerica’s burden to show that the challenged conduct cannot reasonably be expected to recur. The district court erred in ruling that Gerber’s affidavit was sufficient to meet the company’s heavy burden. See Kifafi v. Hilton Hotels Ret. Plan, 701 F.3d 718, 725 (D.C. Cir. 2012) (defendant’s promise to refrain from violating the statute in the future did not moot the claim). The timing of the affidavit was suspicious, as it was filed with the defendant’s reply memorandum in support of its motion to dismiss. R-11, Ex. A. “Courts should keep in mind . . . that ‘reform timed to anticipate or blunt the force of a lawsuit offer[s] insufficient assurance that the practice sought to be enjoined will not be repeated.’” NAACP v. City of Evergreen, Ala., 693 F.2d 1367, 1370 (11th Cir. 1982) (quoting James v. Stockham Valves & Fittings Co., 559 F.2d 310, 354–55 (5th Cir.1977)).

One key factor in assessing a claim of mootness based on voluntary cessation is “whether the challenged conduct was isolated or unintentional, as opposed to a continuing and deliberate practice.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007). Here the company in its state action continued to interfere with Potts’s right to participate in protected activity even after having been informed that such conduct was unlawful. Potts quoted the EEOC’s guidance on non-waivable rights, reminding CollegeAmerica that employers “may not interfere with” an employee’s protected rights under the ADEA, App-18, but the company responded by two times seeking to discover the information that Potts had given the EEOC. App-68, App-70, App-73–74. Moreover, “a defendant’s failure to acknowledge wrongdoing similarly suggests that cessation is motivated merely by a desire to avoid liability.” Sheely, 505 F.3d at 1187. Counsel for CollegeAmerica never acknowledged that its interference with Potts’s rights was unlawful. The district court therefore should have followed the rule that “a court will not dismiss a case as moot if . . . the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time.” Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015).

The wisdom of the voluntary cessation doctrine is illustrated well in this case. CollegeAmerica secured dismissal of the Commission’s interference claim by having its general counsel assure the district court that the company would “never” assert that the 2012 agreement waived Potts’s “unfettered right to file charges of discrimination and cooperate in any proceeding conducted by the EEOC . . . , whether that proceeding is based on a charge filed by Potts or anyone else.” App-89–90. After securing that dismissal, CollegeAmerica then reversed course by arguing (in the pretrial order regarding Potts’s retaliation claim) that Potts violated the 2012 agreement by filing charges with the EEOC and giving the EEOC information without having given the company prior or simultaneous notice of her allegations. App-91–92; 1TT-110–11.

B. The EEOC had standing to bring the interference claim.

While the district court ruled solely on the ground that the case had become moot, CollegeAmerica argued in its reply memorandum that the EEOC lacked standing at the outset. In the event the company renews this argument on appeal, it should be rejected because the Commission had standing to enforce the ADEA in the public interest and to protect its access to the information necessary for its investigations. The standard of review is again de novo. WildEarth Guardians, 690 F.3d at 1181.

Congress has expressly authorized the Commission to sue to enforce the ADEA. Section 626(b) of the ADEA directs the EEOC to enforce the ADEA “in accordance with the powers, remedies, and procedures provided in sections . . . 216 (except for subsection (a) thereof) and 217” of the Fair Labor Standards Act (“FLSA”), and section 216(c) of the FLSA empowers the Secretary of Labor to bring “an action in any court of competent jurisdiction” to enforce the FLSA. 29 U.S.C. §§ 626(b), 216(c). Thus, the claim here is expressly authorized by statute. Cf. FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 484 (1985) (statute expressly authorized the FEC to bring its action).

Congress has directed the EEOC to enforce the federal anti-discrimination statutes by investigating and conciliating charges and by bringing enforcement actions in appropriate cases. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977) (Title VII case); EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300, 303–04 (4th Cir. 1992) (ADEA case). The Commission receives information about potential violations from the charges people file and the interviews the agency conducts when investigating those charges. The principal purpose of the anti-retaliation and anti-interference provisions in the anti-discrimination statutes is to protect that flow of information from employees to the Commission. These provisions enable the EEOC to carry out its statutory duties; they also protect individual employees by maintaining their “‘unfettered access’” to the remedies those statutes provide. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)); EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984) (“[I]t is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired.”).

In EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 741–42 (1st Cir. 1996), for example, the defendant employer had provisions in agreements with some of its employees that prevented them from cooperating with the EEOC in its investigations of Title VII charges. The court upheld an injunction barring the employer from enforcing those provisions. The First Circuit agreed with the EEOC that “if victims of or witnesses to sexual harassment are unable to approach the EEOC or even to answer its questions, the investigatory powers that Congress conferred would be sharply curtailed and the efficacy of investigations would be severely hampered.” Id. at 744. The court concluded that “any agreement that materially interferes with communication between an employee and the Commission sows the seeds of harm to the public interest.” Id.

Thus, when the Commission sues an employer alleging retaliation or interference, it often does so to protect the public interest in having the EEOC perform its statutory functions as well as to vindicate the statutory rights of the victim. See EEOC v. Outback Steakhouse of Fla., Inc., 75 F. Supp. 2d 756, 761 (N.D. Ohio 1999) (EEOC had standing to sue for retaliation to “vindicate the public interest” even after the retaliation victim settled her claim).

The Commission therefore had standing to bring its interference claim against CollegeAmerica. The company entered an agreement with Potts that prevented her from contacting any government agency, including the EEOC, to file a complaint against the company. App-44. Potts filed a charge with the EEOC, and the company then sued her for violating that agreement. App-48–51. In its lawsuit, CollegeAmerica alleged that one of the ways Potts was violating the agreement was by filing charges with the Commission. App-64. The EEOC thus had standing to sue CollegeAmerica for interference both to protect the Commission’s access to the information it needs to enforce the ADEA and to vindicate Potts’s right to file charges and participate in EEOC proceedings without facing retaliation or interference. See Outback Steakhouse, 75 F. Supp. 2d at 761.

As argued supra pp. 15–16, the company’s January 2014 letters and its February 2014 amended complaint, even if fully credited, disavowed only a portion of the company’s unlawful activity. They accordingly did not deprive the Commission of standing to bring its interference claim. See Donovan v. Cunningham, 716 F.2d 1455, 1461 (5th Cir. 1983) (settlement of parallel action did not moot Secretary of Labor’s claim for breach of fiduciary duty because it did not render all relief sought by the Secretary unnecessary).

Conclusion

The district court erred in ruling that CollegeAmerica met its heavy burden of showing that its voluntary cessation rendered the EEOC’s interference claim moot. The Commission therefore respectfully urges this Court to reverse the order dismissing that claim.

[1] “R-137” refers to entry 137 on the district court docket sheet.

[2] “1TT-37” refers to page 37 of the first volume of the trial transcript.

[3] “App-44” refers to page 44 of the appendix.

[4] The District Court erroneously ruled that the notice and conciliation requirements are jurisdictional prerequisites to bringing suit under the ADEA. App-37–38. Referring to the requirements as jurisdictional, rather than simply as pre-suit obligations, is incorrect, as made clear by the Supreme Court in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006). See also Gad v. Kan. State Univ., 787 F.3d 1032, 1035–38 (10th Cir. 2015).