No. 09-16640 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GNLV CORP., d/b/a GOLDEN NUGGET HOTEL AND CASINO, and DOES 1-10 Inclusive, Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the District of Nevada Hon. Brian E. Sandoval, Judge _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ JAMES L. LEE GAIL S. COLEMAN Deputy General Counsel Attorney EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE, Room 5SW24L CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") requests oral argument. The district court wrongly conflated the EEOC's systemic claim that GNLV was engaged in a pattern or practice of tolerating sexual and/or racial harassment of its employees with the EEOC's separate claims that GNLV had tolerated such harassment against specific, named individuals. In light of its holding that the EEOC could not establish a pattern or practice of discrimination, the district court held, the EEOC's claims on behalf of specific employees were moot. The district court misunderstood the controlling law. Oral argument will allow this Court to explore the issues in greater depth. TABLE OF CONTENTS Statement Regarding Oral Argument. . . . . . . . . . . . . .i Table of Authorities . . . . . . . . . . . . . . . . . . . iv Statement of Jurisdiction. . . . . . . . . . . . . . . . . .1 Statement of the Issues. . . . . . . . . . . . . . . . . . .1 Statement of the Case. . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings . . . . . . . . . . . . . . .2 B. Statement of Facts. . . . . . . . . . . . . . . . .3 C. District Court's Decisions. . . . . . . . . . . . 13 Summary of Argument. . . . . . . . . . . . . . . . . . . . 16 Argument . . . . . . . . . . . . . . . . . . . . . . . . . 18 A. The EEOC's claims that GNLV tolerated discrimination against specific, named individuals were not rendered moot by the district court's award of summary judgment to GNLV on the EEOC's additional claim that GNLV engaged in a widespread pattern or practice of discrimination . . . . . . . . . . . . . 18 1. Standard of Review . . . . . . . . . . . . . 18 2. Discussion . . . . . . . . . . . . . . . . . 18 B. The district court abused its discretion in striking four of the EEOC's claimants for being named less than ninety days before the discovery cut-off when no rule or discovery order required that the claimants be named earlier and GNLV had ample time to depose the newly identified claimants . . . . . . . . . . . . . 22 1. Standard of Review . . . . . . . . . . . . . 22 2. Discussion . . . . . . . . . . . . . . . . . 22 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 25 Statement of Related Cases Certificate of Service TABLE OF AUTHORITIES Cases Brother Records, Inc. v. Jardine, 318 F.3d 900 (9th Cir. 2003) . . . . . . . . . . . . . . . 22 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984). . . . . . . . . . . . . . . . 18, 20, 21 DeFunis v. Odegaard, 416 U.S. 312 (1974) . . . . . . . . . 18 EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) . . . . . . . . . . . . . . . 19 EEOC v. Valentino Las Vegas, LLC, No. 04-1357 (D. Nev. Mar. 1, 2005) . . . . . . . . . . . . 23 General Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . . . . 19 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . . . . . . . . . .16, 19-21 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . . . . 20 Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458 (9th Cir. 1987) . . . . . . . . . . . . . . . 20 Qwest Corp. v. City of Surprise, 434 F.3d 1176 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . 18 Statutes and Rules Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.. . . . . . . . . . . . . . . . . .1 § 2000e-5 . . . . . . . . . . . . . . . . . 1, 12, 18-19 § 2000e-6 . . . . . . . . . . . . . . . . . 1, 12, 18-19 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . .1 Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . .1 Local Rules of Practice for the U.S. District Court for the District of Nevada, Rule 26-1(e)(2). . . . . . . . 23 STATEMENT OF JURISDICTION The district court had jurisdiction over this Title VII racial and sexual harassment and retaliation case under 42 U.S.C. §§ 2000e-5 and 2000e-6. On June 2, 2009, the district court granted GNLV's motion for summary judgment on the section 2000e-6 pattern-or-practice claim and then denied as moot GNLV's separate motions for summary judgment on the section 2000e-5 individual claims. (R.110, Order, E.R.<1> at 4.) The district court entered final judgment that same day. (R.111, Judgment, E.R. at 3.) Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the EEOC filed a timely notice of appeal on August 3, 2009. (R.120, Notice of Appeal, E.R. at 1.) This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Did the district court err in dismissing the EEOC's claims of discrimination against specific individuals as moot simply because the EEOC could not also establish that discrimination was GNLV's standard operating procedure? 2. Did the district court abuse its discretion in striking four of the EEOC's claimants for being named less than ninety days before the discovery cut-off when no rule or discovery order required that the claimants be named earlier and GNLV had ample time to depose the newly identified claimants? STATEMENT OF THE CASE A. Course of Proceedings The EEOC filed this Title VII action against GNLV on September 29, 2006, seeking relief on behalf of charging party Robert Royal and other similarly situated, still unnamed individuals. (R.1, Complaint, E.R. at 40.) On March 13, 2007, the EEOC identified five claimants, bringing the number of identified individuals to six.<2> (R.44-3, ex. 2, EEOC's Initial Disclosures.) The EEOC named one more claimant on June 3, 2008,<3> another on June 19, 2008,<4> and two more on June 27, 2008.<5> (R.44-7, ex. 16, EEOC's original and supplemental answers to GNLV's second set of interrogatories). Arguing that the EEOC could not name new claimants after the deadline for adding new parties had already expired, GNLV moved to strike the EEOC's last four claimants as untimely. (R.38, Motion to Strike.) On September 9, 2008, the magistrate judge granted this motion. (R.49, Order, E.R. at 20.) The EEOC appealed to the district court (R.50, Request for Review), which affirmed on October 28, 2008. (R.59, Order, E.R. at 18.) Soon thereafter, GNLV filed nine separate motions for summary judgment on the EEOC's various claims. (R.61, Motion for S.J. on Pattern or Practice Claim; R.62, Motion for S.J. on Punitive Damages; R.67, Motion for S.J. on Affirmative Defenses; R.63 – R.66, R.68 – R.70, Motions for S.J. on Individual Claims.) On June 2, 2009, the district court granted the motion for summary judgment on the pattern-or-practice claim and denied the other summary judgment motions as moot. (R.110, Order, E.R. at 4.) The court entered final judgment that same day. (R.111, Judgment, E.R. at 3.) The EEOC filed a timely notice of appeal on August 3, 2009. (R.120, Notice of Appeal, E.R. at 1.) B. Statement of Facts Robert Royal, a black man, was a blackjack dealer for Golden Nugget Hotel and Casino. (R.76-13, Charge; R.76-3, Royal Dep. Vol. 1 at 89.) On April 18, 2003, he filed a charge with the EEOC alleging that Golden Nugget had subjected him to a racially hostile work environment and had retaliated against him for complaining about the harassment. (R.76-13, Charge.) In the course of its investigation, the EEOC found evidence to support Royal's claim as well as evidence that other Golden Nugget employees had also been subjected to racial or sexual harassment and/or retaliation. (R.76-5, EEOC Determination.) The instant lawsuit stems from Royal's charge. Ten individuals testified that they personally experienced racial harassment, sexual harassment, and/or retaliation while working at Golden Nugget. (R.76-3, Royal Dep. Vol. 1 at 184; R.76-34, Fein Dep. at 48; R.76- 43, Smith Dep. at 38-39; R. 76-42, Hunter Dep. at 94-95; R.76-22, Nixon Decl. ¶8; R.76-33, Blake Dep. at 88; R.76-51, Lee Dep. at 102; R.77-14, Kennedy Dep. at 55-56; R.76-52, Hawthorne Dep. at 63; R.76-50, Sarant Dep. at 48.) They testified to harassment from customers, supervisors, and coworkers. With the exception of Tequella Candice Smith, all of these witnesses were dealers who testified about harassment on the casino floor or in the dealers' break room. Smith, a food and beverage worker, testified that her supervisor took her against her will to a storage closet four or five times where he kissed her and touched her all over her body for an hour each time. (R.76-43, Smith Dep. at 38-40.) Additionally, she testified that a kitchen coworker repeatedly groped her and otherwise harassed her. (Id. at 100-03.) Multiple witnesses testified that casino customers repeatedly called black dealers "nigger" to their faces and also used that term in their presence to describe other African Americans. Kelly Hawthorne testified that customers called him "nigger" more than 100 times. (R.76-52, Hawthorne Dep. at 155, 179.) Hawthorne testified that customers also called him "spear chucker," "coon," "black monkey," "base monkey," and "tar baby." (Id. at 155, 178.) Customers asked him, "Do all black men have big dicks?" (Id. at 170.) "Can [you] all screw like rabbits?" (Id.) "What kind of ghetto were you raised in?" (Id. at 178.) Robert Royal testified that in addition to being called "nigger" 15-20 times and "blackie" a few times, he was also told by a customer, "I'll kick your black ass." (R.76-3, Royal Dep. Vol. 1 at 166, 170, 171, 182.) After Royal told a customer that he had not cut the deck of cards thick enough, as it had to be a deck and a half, the customer responded, "What do you mean a dick and a half? Do you think I'm black?" (Id. at 207.) Eddie Mae Hunter, a black dealer, testified that when a customer at her table started losing after a black man who had also been seated there got up and walked away, the customer announced, "I just need that monkey to come back over here." (R.76-42, Hunter Dep. at 94.) Witnesses also testified that customers sexually harassed female dealers. Dorothy Blake testified that one customer on her game repeatedly "talk[ed] about eating my pussy out . . . how much I would enjoy it." (R.76- 33, Blake Dep. at 88, 90.) Susie Fein testified that although she backed away from him, customer Ernie Martini leaned across the table and kissed her on the lips 20 times. (R.76-34, Fein Dep. at 74-75, 242.) When he was losing money, Martini called Fein "fucking cunt" about five times and "fucking bitch" up to 200 times. (Id. at 77, 80.) Fein testified that a customer named Joe and a customer she called Mr. Hello repeatedly called her a "fucking bitch." (Id. at 96, 101.) Other witnesses confirmed that they, too, repeatedly heard customers use the terms "fucking bitch" and "fucking cunt." (R.77-3, Zakalyk Dep. at 108-09; R.76-51, Lee Dep. at 142-43; R.77-7, Gelfo Dep. at 71; R.77-14, Kennedy Dep. at 171.) Additionally, witnesses testified that when some male customers lost to female dealers, they threw cards at the dealers' chests or slapped the dealers' hands. (R.76- 34, Fein Dep. at 88-89, 92, 98, 102-03; R.77-7, Gelfo Dep. at 72.) Witnesses testified that coworkers and supervisors contributed to a racially and sexually hostile work environment. Inappropriate comments and behavior from coworkers and supervisors included repeated suggestions that a group of African American dealers who had joined the staff at the same time had only gotten their jobs because they were all welfare recipients (R.76-52, Hawthorne Dep. at 63, 113-14; R.76-33, Blake Dep. at 77, 193); comments that all blacks look the same (R.76-3, Royal Dep. Vol. 1 at 305-06); questions about whether all black people beat their children (R.76-52, Hawthorne Dep. at 142), whether all black people steal (id.), or why most black children end up in "juvie" before the age of 15 (id.); observations about the "tits and asses" of female dealers and customers (R.76-50, Sarant Dep. at 79, 109); visible gawking at women's breasts (R.76-33, Blake Dep. at 75, 106-07, 155-56); repeated propositions from a married supervisor to a subordinate that she go to a Big Bear cabin with him (R.76-34, Fein Dep. at 55-57); reference to a female subordinate as a "dumb blonde" (R.76-50, Sarant Dep. at 48); and numerous comments about women's "boobs." (R.77-7, Gelfo Dep. at 78; R.77-14, Kennedy Dep. at 173.) When asked if he had ever referred to a female employee as a "fucking bitch" or a "fucking cunt," supervisor James Gelfo admitted that it was "quite possible." (R.77-7, Gelfo Dep. at 73.) When asked in what context he would have referred to a female employee that way, Gelfo testified, "If I felt they were a fucking bitch or a fucking cunt." (Id.) While there is evidence that supervisors and/or the Human Resources department sometimes responded quickly and appropriately to employees' complaints of harassment (e.g., R.77-5, Threet Dep. at 52-60), there is also evidence that this was not uniformly true. Supervisor Alex Zakalyk testified that Golden Nugget had a consistent policy of allowing "high roller" customers to do and say whatever they wanted to dealers. (R.77-3, Zalalyk Dep. at 34, 36-37.) Zakalyk confirmed that casino management would look up a customer to see what level he was at and how much credit he had in evaluating what to do. (Id. at 119.) He testified that on several occasions he personally witnessed various pit managers looking up the status of customers to determine whether or not to eject them for harassing a dealer. (Id. at 119-21.) In some cases, management ended up giving high roller customers who had been accused of harassment drinks or a free hotel room to apologize for the unpleasantness. (R.76-52, Hawthorne Dep. at 145; R.77- 3, Zakalyk Dep. at 36, 38.) "If you've got the money," Zakalyk testified, "you can do damn well anything you please." (R.77-3, Zakalyk Dep. at 164-65; see also R.76-52, Hawthorne Dep. at 132 ("If . . . the customer is spending enough money, I don't care what they say. It's going to happen.").) Indeed, Fein testified that the president of the hotel sat at her table on more than one occasion when a regular high roller customer named Joe called her a "fucking bitch" and that the president did nothing. (R.76- 34, Fein Dep. at 96-97.) As a result of biannual trainings, most dealers knew that Golden Nugget's anti-harassment policy allowed them to complain either to supervisors or to Human Resources. (R.77-12, Stanton Dep. at 33.) They sometimes complained to their supervisors, with varying results, and they complained to Human Resources more rarely. (R.76-52, Hawthorne Dep. at 53.) There was a general sense in the casino that regardless of the written policy, employees had to follow their departmental chain of command before going to Human Resources. (R.77-3, Zakalyk Dep. at 17, 26, 28; R.76-42, Hunter Dep. at 63-65; R.76-50, Sarant Dep. at 58, 62-63.) Also, because customers might just be passing through for a single day, only supervisors on the casino floor were in a position to address dealers' complaints of customer harassment. (R.77-13, Bell Dep. at 26.) Testimony shows that some supervisors took this responsibility seriously and others did not. Several witnesses testified that supervisors sometimes pretended not to hear when customers engaged in sexual or racial harassment, even though it was obvious from their physical proximity or from the fact that they, too, were laughing at an offensive joke, that they had heard the comments. (R.76-34, Fein Dep. at 96-97, 232; R.76-50, Sarant Dep. at 88; R.76-52, Hawthorne Dep. at 133-35, 137, 192-93; R.77-14, Kennedy Dep. at 56.) Other times, supervisors told dealers to "let me know if they say it again" rather than responding immediately. (R.76-52, Hawthorne Dep. at 174-75.) When Royal complained about one incident of racial harassment, he testified, his supervisor "told me that I had broad shoulders and I could just go back to the game." (R.76-3, Royal Dep. Vol. 1 at 254.) Blake testified that when one customer was being especially offensive, propositioning her with graphic descriptions of oral sex, she called for her supervisor to come over and the supervisor refused. According to Blake, the supervisor said, "Now, now, you're a big girl. You can handle it." (R.76-33, Blake Dep. at 73-75, 90-91.) After the supervisor finally approached the table and learned the details of what the customer had been saying, she accepted the customer's apology on Blake's behalf. She then required Blake, over Blake's objections, to play a hand after the customer put money on the table as a bet for her. [Id. at 74-75, 111.] "It just made me feel like a prostitute to be accepting money from this man," Blake testified. (Id. at 111.) Having seen supervisors blatantly ignore harassment, employees were not always confident that there was any point in complaining when harassment happened to them. As Hawthorne testified, "At that point, I had already been through the system numerous times. So it was getting to be a waste of my time to keep going upstairs, because I knew these were the type of customers we had to deal with on a daily basis, and it ain't changing." (R.76-52, Hawthorne Dep. at 197.) Ervin Nixon testified that he was wary of using the complaint process in part because his supervisor had directly threatened him with retaliation for complaining to the casino manager about perceived discrimination in scheduling. (R.76-22, Nixon Decl. ¶¶ 14, 20.) Likewise, Blake testified that pit manager Richard Freeman had told her to be careful what she complained about because she might end up in the mail room. (R.76-33, Blake Dep. at 103.) Smith, the kitchen worker who complained to Human Resources about a coworker's sexual harassment, lost all confidence in the complaint process when, after a brief separation, her harasser was permitted to return to work in the same kitchen as her, where he once again grabbed her breasts and otherwise harassed her. (R.76-43, Smith Dep. at 130-31, 134-35, 140, 156, 166.) In September 2006, the EEOC sued GNLV Corp. d/b/a/ Golden Nugget, alleging that GNLV had subjected charging party Robert Royal and "similarly situated individuals" to a hostile work environment based on their race (African American) and sex (female) and had retaliated against individuals for reporting these unlawful practices. (R.1, Complaint, E.R. at 40.) The EEOC alleged violations against an unknown number of claimants under section 706 of Title VII, 42 U.S.C. § 2000e-5, and also alleged a pattern-or-practice claim under section 707, 42 U.S.C. § 2000e-6. (Id.) Discovery proceeded over the next two years. A deposition taken in November 2008 suggested that the litigation was having an impact on the Golden Nugget's practices. L.C. Kennedy testified at that time that the Golden Nugget had recently been "clamming down" on harassment. (R.77- 14, Kennedy Dep. at 184.) Speculating that the improvement was directly related to the instant lawsuit, Kennedy testified, "It's been a few months [since I've heard customers say ‘fucking bitch'] because now they [are] kind of clamming down on them, and they get out of line, now they shipping them out the door." (Id. at 184, 198.) Notwithstanding this evidence of some improvement, Kennedy also testified that, two years into the litigation, problems remained. Describing a mandatory training session that he had recently attended on the Golden Nugget's anti-harassment policies, Kennedy relayed an exchange that he had had with the trainer. Kennedy testified that he asked the trainer to explain why Golden Nugget enforced its policies against average customers but not against high rollers. According to Kennedy, the trainer responded, "The person that made the statement can excuse themselves." (Id. at 89, 127.) B. District Court's Decisions The EEOC identified six claimants early in the case and noted that it expected to identify more through discovery. (R.44-3, Ex. 2, Initial Disclosures at 1-3; R.44-4, Ex. 8, EEOC Letter of 10/15/07 at 5-6, E.R. at 38-39.) The EEOC attempted to contact 385 former GNLV employees based on addresses that it received early in the investigation, but 43 of its letters were returned as undeliverable. (R.44-2, Morrison Decl. ¶ 17, E.R. at 32; R.44-1, Goto-Brown Decl. ¶ 2, E.R. at 29.) When the EEOC obtained updated addresses from GNLV, it sent another mass mailing to 2,817 former employees. (R.44-1, Goto-Brown Decl. ¶¶ 2-3, E.R. at 29.) Approximately two and a half months before discovery closed, the EEOC named four additional claimants. (R.44-7, ex. 16, EEOC's Original and Supplemental Answers to GNLV's Second Set of Interrogatories.) Although all four of these claimants had appeared on GNLV's original list of employees, the addresses for three of them were different on GNLV's second list. (R.44-1, Goto-Brown Decl. ¶ 2, E.R. at 29.) GNLV moved to strike these four individuals as class members because the EEOC had not disclosed them prior to a court-imposed deadline for adding parties. (R.38, Motion to Strike at 3.) The EEOC responded that because the EEOC was the sole plaintiff in the case, the party deadline was irrelevant. (R.44, Opposition at 2.) Without endorsing GNLV's characterization of the disputed claimants as parties, a magistrate judge ordered that the EEOC be barred from seeking relief for them on the ground that GNLV had first turned over their names four years earlier and that the EEOC "has had more than ample opportunity to investigate its claims and pursue the discovery needed to bring this case timely to trial." (R.49, Order at 6, E.R. at 25.) The magistrate judge observed that "permitting the EEOC to add these additional individuals as participating class members would substantially and materially change this case, requiring plaintiff specific discovery, and substantially increase the defendant's liability exposure." (Id.) The EEOC objected to this order. (R.50, Request for Review.) The district court accepted and adopted the magistrate judge's recommendation without analysis. (R.59, Order, E.R. at 18.) With the case now consisting of the EEOC's pattern-or-practice claim and individual claims on behalf of six named individuals, GNLV filed a series of motions for summary judgment. (R.61-R.70, Motions for S.J.) The district court granted the first of these motions and dismissed the others as moot. (R.110, Order, E.R. at 4.) The motion that the court granted disposed of the EEOC's pattern-or- practice claim. (Id. at 13, E.R. at 16.) The court agreed with GNLV that because, over the course of six years, the EEOC had been able to identify only ten alleged victims out of GNLV's more than nine thousand employees, the EEOC could not establish that harassment was GNLV's standard operating procedure. (Id. at 9-10, E.R. at 12-13.) "While the Court cannot articulate a specific threshold for the number of claims required to establish a pattern or practice of harassment or retaliation," the Court said, "the numbers indicate that the EEOC's allegations fall well short of showing any ‘standard operating procedure' of allowing or condoning discrimination." (Id. at 10, E.R. at 13.) The court also noted that Golden Nugget had a facially valid anti- discrimination policy which provided for multiple reporting options, and that Golden Nugget trained both its supervisors and its employees about its policies on discrimination and harassment. (Id. at 12, E.R. at 15.) "[O]f the several alleged incidents of harassment involving the six claimants," the court said, "it is undisputed that many were either unreported or addressed if they were reported." (Id. at 11, E.R. at 14.) For these reasons, the district court held that the EEOC had not raised a genuine issue of material fact regarding the existence of a pattern or practice of harassment or retaliation at Golden Nugget. (Id. at 13, E.R. at 16.) Citing only to Teamsters, a case involving a pattern or practice of discrimination, the district court then held that its ruling on the pattern-or- practice claim rendered the individual claims moot. (Id.) Without discussing its context, the court quoted a line in Teamsters that "the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination." (Id. (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977)).) SUMMARY OF ARGUMENT The district court erred in dismissing the individual claims of discrimination as moot simply because it held against the EEOC on the separate pattern-or-practice claim. A lawsuit becomes moot only when the parties no longer have a definite and concrete controversy which affects their legal relations. Here, even after the district court dismissed the pattern-or-practice claim, the EEOC continued to seek relief from GNLV for alleged violations against individual claimants. The EEOC's allegations of individual violations did not depend on the success of its pattern-or- practice claim. Because a pattern-or-practice claim alleges widespread, systemic discrimination, such that discrimination is the company's standard operating procedure, proof of such a claim requires different and more extensive evidence than proof that a company has discriminated against discrete individuals. A reasonable jury could find that GNLV discriminated against one or more of the named claimants even if discrimination was not the company's standard operating procedure. This Court should therefore remand for further proceedings. The district court also erred in striking four of the EEOC's ten named claimants as untimely identified. Notwithstanding GNLV's misguided effort to equate EEOC claimants with party litigants, the EEOC is the only plaintiff in this case; the deadline for adding parties was therefore irrelevant to the question of when claimants could be identified. The EEOC named the four challenged claimants well within the discovery deadline and GNLV had ample time to depose them before discovery ended. No rule or court order required the EEOC to name them earlier. Neither GNLV nor the district court has cited to any legal authority for dismissing the claimants as untimely, and this Court should order them reinstated. ARGUMENT A. The EEOC's claims that GNLV tolerated discrimination against specific, named individuals were not rendered moot by the district court's award of summary judgment to GNLV on the EEOC's additional claim that GNLV engaged in a widespread pattern or practice of discrimination. 1. Standard of Review Mootness is a question of law which this Court reviews de novo. Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1180 (9th Cir. 2006). 2. Discussion The district court committed reversible error in dismissing the EEOC's individual claims as moot. "An action is moot if the issues are no longer live or the parties lack a legally cognizable interest in the outcome." DeFunis v. Odegaard, 416 U.S. 312, 317 (1974). Because the EEOC's individual claims were independent of its pattern-or-practice claim, the court's disposition of the latter did not terminate the parties' live controversy over the former. As the Supreme Court has explained, "It could not be more plain that the rejection of a claim of classwide discrimination does not warrant the conclusion that no member of the class could have a valid individual claim." Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984). The EEOC brought this Title VII case both as a pattern-or-practice action under section 707 and as a representative action on behalf of various individuals under section 706. (R.1, Complaint, E.R. at 40.) There is nothing unusual about this litigation approach. See General Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 331 (1980) (EEOC may pursue unified action raising both class and individual claims, notwithstanding existence of competing interests); EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 463 (6th Cir. 1999) (EEOC litigates in broad public interest even when it pursues individual claims). Even while rejecting the EEOC's pattern-or-practice claim, the district court acknowledged the possibility "that each of the ten potential claimants has set forth facts sufficient to constitute valid, individual claims for . . . harassment." (R.110, Order at 9, E.R. at 12.) Nevertheless, the court concluded that the EEOC could litigate the hypothetical "valid, individual claims" only if it could also show an overarching pattern or practice. (Id. at 9, 13, E.R. at 12, 16.) This reasoning rests on a flawed understanding of the law. By citing Teamsters to dismiss the individual claims (id. at 13, E.R. at 16), the district court mistakenly relied on pattern-or-practice jurisprudence in an individual context. The Supreme Court has expressly said that even when plaintiffs cannot prove systemic discrimination against an entire class, certain members of the class may nevertheless be able to prove that they endured discrimination directed personally against them. Cooper, 467 U.S. at 877-78; see also Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 468 (9th Cir. 1987) (affirming judgment that defendant did not engage in pattern or practice of discrimination against class but did discriminate against 3 out of 58 class members). Contrary to the district court's apparent understanding, Teamsters involves only class claims, not individual claims. 431 U.S. at 329-30, 334- 35. In Teamsters, the government challenged an alleged policy of refusing to recruit, hire, transfer, or promote minorities on the same basis as whites. Id. at 335. After holding that the government had succeeded in establishing liability towards the class, the Court turned to questions of individual relief. Id. at 357-62. The Teamsters Court rejected defendants' argument that the government's burden of proof in a pattern-or-practice case must be equivalent to the burden of proof required in an individual case, as described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). Teamsters, 431 U.S. at 358-59 & n.44. Rather than maintaining the burden of proof at all times on the plaintiff, as is required for individual claims, Teamsters held that proof of a pattern or practice provides "reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference." Id. at 359. Even if the EEOC cannot establish a pattern or practice of discrimination that is a defendant's "standard operating procedure," it still may be able to prove that the rights of one or more individuals have been violated. The rights would have been violated individually, not systemically. Id. at 358 n.44; see also Cooper, 467 U.S. at 876 (describing this "crucial difference" between an individual claim and a pattern or practice claim). Unlike in a pattern-or-practice action, the EEOC cannot rely on a presumption of liability when arguing that any particular individual is entitled to relief. Rather, the EEOC must prove liability toward each individual separately. See Cooper, 467 U.S. at 875-76 (differentiating burdens of proof in individual actions versus pattern-or- practice actions). Notably, GNLV never argued in the district court that summary judgment on the pattern-or-practice claim would necessitate summary judgment on the individual claims. Recognizing that the claims are separate, GNLV moved for summary judgment on each claim separately. Not only did GNLV brief the individual claims separately from the pattern- or-practice claim, GNLV also briefed each individual claim separately from every other individual claim. (R.61-R.70, Motions for S.J.) This tacit acknowledgement that some claimants might survive summary judgment while others might not shows that even GNLV rejects the district court's merging of the pattern or practice and individual claims. B. The district court abused its discretion in striking four of the EEOC's claimants for being named less than ninety days before the discovery cut-off when no rule or discovery order required that the claimants be named earlier and GNLV had ample time to depose the newly identified claimants. 1. Standard of Review The EEOC is unaware of any appellate case reviewing a district court's denial of leave to a government enforcement agency to name additional claimants prior to the close of discovery. In a related context, the denial of a motion to amend the pleadings to add a claim or a party is reviewed for abuse of discretion. Brother Records, Inc. v. Jardine, 318 F.3d 900, 911 (9th Cir. 2003). 2. Discussion From the outset of this litigation, the EEOC made clear that it sought relief on behalf of the charging party and "other similarly situated individuals." (R.1, Complaint, E.R. at 40.) GNLV was aware throughout discovery that the EEOC was looking to identify more victims of discrimination. (R.44-4, Ex. 8, EEOC Letter of 10/15/07 at 5-6, E.R. at 38- 39.) Nevertheless, GNLV never asked the district court to impose a deadline by which the EEOC must disclose all of the claimants it had found. GNLV was aware that the court had previously issued such an order in another case. (R.38, Motion at 7 (citing R.38-4, Ex. 17, Order in EEOC v. Valentino Las Vegas, LLC, No. 04-1357 (D. Nev. Mar. 1, 2005), imposing deadline "to amend the pleadings and add parties and/or identify and disclose additional claimants" (emphasis added)).) Having failed to seek, let alone obtain, such an order in this case, GNLV had no basis for characterizing the June 2008 addition of four claimants as "untimely." (R.38, Motion at 7.) In the absence of any order limiting the time in which the EEOC could identify claimants, GNLV urged the district court to apply an express deadline which the court had set pursuant to Local Rule 26-1(e)(2) for adding parties. (Id.) The district court did not accept this invitation, seemingly recognizing that the EEOC was the only plaintiff in this case. Nevertheless, the court did strike the four claimants as untimely. (R.59, Order, E.R. at 18.) Notably, the court offered no authority to support its action. The EEOC understands the court's apparent frustration with the length of time that elapsed from when GNLV first identified the four individuals in question to when the EEOC first disclosed them as claimants. (R.49, Order at 6, E.R. at 25.) The EEOC cannot be blamed for the fact that GNLV's initial address list was inaccurate for three of the four claimants at issue. (R.44-1, Goto-Brown Decl. ¶ 2, E.R. at 29.) Unfortunately, it took time and judicial intervention for GNLV to turn over updated and accurate addresses. (R.31, Order.) GNLV and not the EEOC is responsible for much of the delay in the discovery process. Notwithstanding the length of time that it took for the EEOC to identify the claimants, GNLV still had ample time to depose them before discovery ended. Neither GNLV nor the district court has explained why two and a half months would have been inadequate for deposing four people. Because the EEOC provided supplemental answers to interrogatories on July 7, 2008, summarizing the information to which the new claimants would testify, GNLV was well situated to investigate their claims. (R.44-8, Ex. 19, EEOC's Fourth Supplemental Answers to GNLV's First Set of Interrogatories.) Additionally, the EEOC offered to extend discovery if necessary for GNLV to fully investigate the new allegations. (R.44-2, Morrison Decl. ¶ 3, E.R. at 31.) In light of the EEOC's consistent position that it was seeking relief for an unknown number of claimants, its identification of four people two and a half months before the close of discovery should not have been a surprise. The EEOC's disclosure did not change the character of the lawsuit, violated no rules or discovery orders, and caused GNLV no prejudice. Any additional liability exposure and/or discovery expenses should have been anticipated earlier, when the EEOC first brought suit on behalf of Royal and "other similarly situated individuals." GNLV would have incurred the same liability exposure and associated expenses even if the EEOC had identified the four claimants much earlier. The district court had no legal basis on which to grant GNLV's motion to strike, and it did not offer one. This Court should therefore reverse the district court's order as an abuse of discretion. CONCLUSION Because pattern or practice and individual claims are legally and logically distinct, the failure to raise a genuine issue of material fact regarding the existence of a pattern or practice cannot moot the question of whether any particular individual has experienced discrimination. This Court should reverse the district court's holding that the individual claims are moot and remand for the claims to be considered on the merits. Additionally, because the district court had no legal basis for striking four of the EEOC's ten claimants as untimely named, this Court should order the four claimants reinstated. For the foregoing reasons, the EEOC respectfully asks this Court to reverse and remand for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel /s/ Gail S. Coleman _____________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov STATEMENT OF RELATED CASES Pursuant to Rule 28-2.6 of the Ninth Circuit Rules, I hereby state that the EEOC is unaware of any related cases pending in this Court. /s/ Gail S. Coleman _____________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov *********************************************************************** <> <1> “E.R.” refers to “Excerpts of Record.” <2> The six claimants were charging party Robert Royal (black male dealer), Susie Fein (white female dealer), Tequella Candice Smith (black female kitchen steward), Eddie Mae Hunter (black female dealer), Ervin Nixon, Jr. (black male dealer), and Dorothy Blake (black female dealer). <3> Leroy Lee (black male dealer). <4> L.C. Kennedy (black male dealer). <5> Kelly Hawthorne (black male dealer), and Romilda Sarant (white female dealer).