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 _________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ JAMES L. LEE GAIL S. COLEMAN Deputy General Counsel Attorney EQUAL EMPLOYMENT LORRAINE C. DAVIS 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 TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. GNLV correctly concedes that the district court should not have dismissed the EEOC's individual claims as moot. . . . . . . . . . . . 1 B. This Court should reject GNLV's invitation to affirm on evidentiary grounds because the record contains genuine issues of material fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. In defending the district court's order to exclude four additional claimants, GNLV mischaracterizes the EEOC's litigation conduct, misstates the impact of adding the four claimants, and continues to erroneously conflate new claimants with new parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Addendum Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Carter v. Chrysler Corp., 173 F.2d 693 (8th Cir. 1999). . . . . . . . . . . . 4 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Corder v. Gates, 947 F.2d 374 (9th Cir. 1991). . . . . . . . . . . . . . . . . .2 Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237 (M.D. Ala. 2001). . . . . . . . . . . . . . . . . . . . . 7 EEOC v. ABM Indus., Inc., No. 07-1428 (E.D. Cal. Feb. 4, 2010) (unpublished). . . . . . . . . . . . . . .14 EEOC v. Am. Nat'l Bank, 652 F.2d 1176 (4th Cir. 1981). . . . . . . . . . . . . 8 EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005). . . . . . . . . . . 8, 9 EEOC v. Deer Valley Unified Sch. Dist., 968 F.2d 904 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . 10 EEOC v. Dinuba Med. Clinic, 222 F.3d 580 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . .15 EEOC v. Jillian's of Indianapolis, 279 F. Supp. 2d 974 (S.D. Ind. 2003). . . . . . . . . . . . . . . . . . . . . 8 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . 9 EEOC v. Plaza Operating Partners, Ltd., 2005 WL 309770 (S.D.N.Y. Feb. 7, 2005) (unpublished). . . . . . . . . . . . 11-12 EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989). . . . . . . . . . . . 6 EEOC v. Target Corp., 2007 WL 1461298 (E.D. Wisc. 2007) (unpublished). . . . . . . . . . . . . . . 8 EEOC v. Valentino Las Vegas, LLC, No. 04-1357 (D. Nev. Mar. 1, 2005) (unpublished). . . . . . . . . . . . . . . 14 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . 12 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . . . .3 Gen. Tel. Co. of the N.W. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . .15 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . . 9 Lucky Stores, Inc. v. EEOC, 714 F.2d 911 (9th Cir. 1983). . . . . . . . . . . . 8 Mason v. So. Ill. Univ. at Carbondale, 233 F.3d 1036 (8th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 4 McDaniel v. Brown, 130 S. Ct. 665 (2010). . . . . . . . . . . . . . . . . . 1 McDonnell Douglas v. Green, 411 U.S. 792 (1972). . . . . . . . . . . . . . . . .9 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004). . . . . . . . . . . 3 Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . 3 Oscarson v. Office of Senate Sergeant at Arms, 550 F.3d 1 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . .2 Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787 (8th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . 4 U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009). . . . . . . . . . . . . . . 15 ARGUMENT In its opening brief, the EEOC urged this Court to reverse the district court's holding that the EEOC's individual claims are moot and to remand for the claims to be considered on the merits. The EEOC also urged this Court to reverse the district court's order striking four of the EEOC's ten claimants as untimely named. In its responsive brief, GNLV concedes that the district court should not have dismissed the individual claims as moot. Nevertheless, GNLV urges this Court to affirm the dismissal on other grounds. GNLV also argues that the district court acted within its discretion in striking the four claimants. For the reasons stated here and in the EEOC's opening brief, the EEOC asks this Court to reject GNLV's arguments and to reverse the district court's judgment. A. GNLV correctly concedes that the district court should not have dismissed the EEOC's individual claims as moot. In its brief as appellee, GNLV "recognizes that the trial court probably should have addressed the claims of the individual class members given the opinion in Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984)." (GNLV Br. at 16.) With this language, GNLV concedes that the district court erred in dismissing the EEOC's individual claims as moot. For the reasons explained in the EEOC's opening brief (Opening Br. at 18- 22), GNLV's concession is legally correct. B.This Court should reject GNLV's invitation to affirm on evidentiary grounds because the record contains genuine issues of material fact. GNLV asks this Court to wade through an enormous summary judgment record, consisting of 5,275 pages, in order to affirm on factual grounds the district court's legally erroneous judgment. The Court should not devote its limited resources to this Herculean task. As the D.C. Circuit has recognized, "assessing 'whether or not a record demonstrates a "genuine" issue of fact for trial . . . can consume inordinate amounts of appellate time.'" Oscarson v. Office of Senate Sergeant at Arms, 550 F.3d 1, 4 (D.C. Cir. 2008). The task is best left to the district court to consider in the first instance. See Corder v. Gates, 947 F.2d 374, 383 (9th Cir. 1991) ("An appellate court may properly decline to reach issues not addressed by the court below in order to obtain both a fully developed record and the benefit of the district court's treatment of the issue."). Even if this Court were inclined to analyze the entire summary judgment record, it would be unable to affirm the dismissal on alternate grounds. As is evident from the parties' vastly different presentations of the facts in their appellate briefs, the record is replete with genuine issues of material fact. For example, GNLV contends that the failure of specific individuals to complain about particular instances of harassment is fatal to their claims. (GNLV Br. at 16.) The EEOC, however, has introduced abundant evidence (disputed by GNLV) that GNLV's complaint procedure was inconsistent, sometimes retaliatory, and often ineffectual. (Opening Br. at 8-11.) If the EEOC's evidence is believed (which, of course, it must be in the context of summary judgment, Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1122 (9th Cir. 2009)), it may have been quite reasonable for the employees in question to distrust and not use GNLV's complaint process.<2> Additionally, GNLV would have the Court believe that the EEOC seeks relief only for scattered instances of unacceptable language. (GNLV Br. at 18-19.) As the EEOC's brief explains, however, dealers encountered pervasive harassment directed both against themselves and others. (Opening Br. at 4-7.) Affirming on other grounds would also require this Court to decide mixed questions of fact and law that have not been fully briefed. For instance, GNLV seems to argue that evidence of widespread harassment has become irrelevant now that the EEOC has dropped its pattern-or-practice claim. (GNLV Br. at 12-15.) The EEOC, however, contends that some of the harassment was so pervasive that it was impossible for anyone - dealer or supervisor - to remain unaware of it. (Opening Br. at 5-7, 9-10.) The existence of pervasive harassment is relevant to whether GNLV knew or should have known that the claimants were being harassed. Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009); Mason v. So. Ill. Univ. at Carbondale, 233 F.3d 1036, 1045 n.8 (8th Cir. 2000). Also, to whatever extent a particular claimant may have been aware of harassment against others, that knowledge is relevant to how the claimant experienced his or her own harassment. Carter v. Chrysler Corp., 173 F.2d 693, 701 n.7 (8th Cir. 1999). GNLV would have the Court gloss over these critical inquiries. In the district court, GNLV considered the individual claims to be so complex on summary judgment as to require 254 pages of briefing and 1,320 pages of supporting documents. The EEOC responded with 322 pages of briefing and 1,407 pages of evidence. It is disingenuous for GNLV now to claim that this Court may easily affirm "as a matter of law." (GNLV Br. at 17.) C. In defending the district court's order to exclude four additional claimants, GNLV mischaracterizes the EEOC's litigation conduct, misstates the impact of adding the four claimants, and continues to erroneously conflate new claimants with new parties. GNLV defends the district court's decision to exclude four additional claimants, named several months before the discovery cut-off, in large part by wrongly assailing the EEOC's litigation conduct.<4> GNLV suggests that the EEOC unexpectedly tried to expand the scope of the lawsuit at the last minute by adding four more claimants three months before the end of discovery. GNLV would also have this Court believe that the EEOC botched its internal investigation, unilaterally delayed the discovery process, and misleadingly agreed to a "new party" deadline that it had no intention of respecting. (GNLV Br. at 21-30.) GNLV is wrong on all counts. GNLV's argument that the EEOC's effort to add claimants was an unanticipated expansion of the scope of the lawsuit is unavailing because the addition of claimants could not have been a surprise in this case, and because it did not expand the scope of the suit. First, GNLV knew during the administrative process, long before this matter reached litigation,<5> that the EEOC was investigating class-wide discrimination on the basis of race and sex, and it knew on June 30, 2004 (R.76-5, EEOC Determ.), that the EEOC had found cause to believe that GNLV had discriminated against a class of individuals. Once the EEOC finds cause on a "class" violation, notifies the respondent of its belief in the existence of a systemic problem, and attempts to conciliate on that basis, the EEOC need not identify all potential victims as a predicate for litigating those claims. See EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989) ("in a class action [age discrimination] suit, '[t]he EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant'"). Although the adequacy of conciliation efforts has never been at issue in this case, the rationale of courts finding such efforts adequate despite the failure to identify all victims applies with equal force to the suggestion here that the EEOC should have named the four individuals it sought to add at some earlier date. As a district court recently observed in discussing the satisfaction of pre-suit requirements in a Title VII class gender and sexual harassment case, once the EEOC notifies the respondent that it is investigating possible discrimination against a class of employees, "'it would be wasteful, if not vain, to attempt to conciliate the claims of numerous employees, all with the same grievance,'" since "'[i]f it is impossible to reach a settlement with one discriminatee, what reason would there be to assume the next one would be successful.'" Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1246 (M.D. Ala. 2001) (quoting Marshall v. Sun Oil Co. (Del.), 605 F.2d 1331, 1338 n.5 (5th Cir. 1979)). Second, seeking to add claimants did not change the scope of the EEOC's suit. The EEOC's claim in this case was for racial and sexual harassment and retaliation. The complaint stated that the EEOC was seeking relief for the charging party and an unspecified number of "similarly situated individuals." (R.1, Complaint, E.R. at 40.) The identification of specific individuals did not change the nature of the claim or the scope of the suit in comparison to the EEOC's original finding of cause (R.76-5, EEOC Determ.), it merely sought to obtain relief for additional victims. Unlike an attempt to add a race claim when the EEOC had investigated only allegations of sex discrimination, the effort to add additional claimants here could not have caused GNLV any unfair surprise. See Lucky Stores, Inc. v. EEOC, 714 F.2d 911, 913 (9th Cir. 1983) (permissible for EEOC to sue three facilities when the sole facility subjected to investigation was a successor to the two facilities added in the amended complaint); EEOC v. Am. Nat'l Bank, 652 F.2d 1176, 1185-86 (4th Cir. 1981) (permissible for EEOC to sue based on discrimination at two branches of bank when investigation had been limited to one branch, because lawsuit alleged same discriminatory hiring practice at both branches and both branches were controlled by same individuals).<6> Although GNLV asserts that the EEOC should use its investigation to identify all potential claimants, that is not the question before the Court, nor could it be. Whatever criticisms GNLV may have about the EEOC's internal investigation, they are irrelevant to the question of whether it is proper for the EEOC to seek relief for claimants it identifies two to three months before the end of discovery. Courts have made clear that the scope of an EEOC investigation is not judicially reviewable. EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005). As the Seventh Circuit explained, "courts . . . have no business limiting the suit to claims that the court finds to be supported by the evidence obtained in the Commission's investigation." Id. The Sixth Circuit has agreed, stating that "the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency." EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984). See also Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) ("the court will not determine whether substantial evidence supported the Commission's pre-adjudication finding of reasonable cause"). The rationale of these decisions is that because Title VII proceedings are de novo, McDonnell Douglas v. Green, 411 U.S. 792, 798 (1972), it is wholly unnecessary and improper to delve into the adequacy of the EEOC's underlying investigation. GNLV is wrong to suggest that the EEOC abused the discovery process by seeking information in discovery that it should have obtained during its internal investigation. (GNLV Br. at 23.) As just explained, what the EEOC learned during its investigation is beyond review, and contrary to GNLV's argument, the EEOC is not precluded from using discovery to obtain relevant evidence of a type similar to that it found during its internal investigation. Discovery is a legitimate litigation tool for both sides. See EEOC v. Deer Valley Unified Sch. Dist., 968 F.2d 904, 906 (9th Cir. 1992) (in discovery, "the parties are seeking to develop evidence for the action that is before the court"). In addressing the question actually before the Court, of the lower court's discretion to bar the EEOC's effort to add claimants, GNLV wrongly argues that the EEOC should have named the four excluded claimants earlier in the discovery process. (GNLV Br. at 24.) It was GNLV's fault, however, that the EEOC was unable to do so. The initial list of employees that GNLV gave to the EEOC contained numerous wrong addresses. The EEOC attempted to contact 385 individuals from the list, but 43 of the letters were returned as undeliverable. (Opening Br. at 13.) Despite the EEOC's persistent efforts to get updated addresses from GNLV, GNLV did not turn over an updated and more inclusive list of over 2,800 dealers until late March 2008. (R.44-1, Goto-Brown Decl.¶ 2, E.R. at 29.) Three of the four excluded claimants had different addresses on the second employee list than they did on the first one. The EEOC followed up on the new information quickly and appropriately by sending questionnaires to 2,817 former employees and then interviewing those who responded. (Opening Br. at 13.) Less than three months elapsed between the time when GNLV finally disclosed its updated list of employees and the time when the EEOC named the four excluded claimants. (R.44-7, ex 16, EEOC's Original and Supplemental Answers to GNLV's Second Set of Interrogatories.) GNLV continues to protest that the EEOC should not be allowed to add claimants after the expiration of the deadline for adding new parties. (GNLV Br. at 24-26.) Another court faced with the identical issue has disagreed. In EEOC v. Plaza Operating Partners, Ltd., 2005 WL 309770 (S.D.N.Y. Feb. 7, 2005) (unpublished), the defendant sought to bar the EEOC from adding two claimants eight months after the deadline for adding parties and three weeks before the close of discovery. The district court refused to exclude the claimants for two reasons. "First," the court said, "the pretrial scheduling order refers to parties, not claimants, and therefore is not wholly without ambiguity. Second, although the disclosure came late, it was made before the end of discovery." Id. at *2. The district court's reasoning in Plaza Operating Partners is fully applicable here. As in Plaza Operating Partners, the EEOC seeks to add claimants, not parties. GNLV contends that where the EEOC seeks individual relief for victims (which it does in virtually all cases), there is no meaningful difference between those claimants and parties in litigation. (GNLV Br. at 25.) This is untrue. Whereas parties would have some control over the litigation and would therefore have the ability to derail potential settlement efforts or to appeal from an adverse judgment (whether or not the EEOC decided to pursue appeal), claimants would not. See EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) (EEOC is "the master of its own case"). Also, parties could assert additional claims arising out of the same facts (for instance, state law claims that parallel the federal one but may have more generous remedies), but claimants could not. For these reasons, the impact of including new claimants is less than the impact of adding new parties. GNLV knew from the beginning of this case that the EEOC was seeking relief for a class of individuals and was actively searching for more claimants. GNLV faced vast potential liability at the outset of this case; the addition of four claimants to the existing six would still leave GNLV in a more favorable position than it likely anticipated when the complaint was filed. GNLV misleads the Court by comparing the initial two-year discovery period with the three months that it would have had to complete discovery on the four additional claimants. (GNLV Br. at 28-29.) The EEOC agreed to a lengthy discovery period at the outset of litigation because, at that time, the EEOC anticipated that the pattern-or-practice claim might become huge, involving numerous claimants.<7> For two years, both sides conducted discovery with the pattern-or-practice claim in mind. By the time the EEOC named the four additional claimants, discovery into systemic discrimination had been largely completed. All that was left was for GNLV to depose the four claimants and check its own records about what the claimants said. Such discovery could easily be conducted within three months, and the EEOC even offered to extend the discovery deadline if GNLV felt that it needed more time. (R.44-2, Morrison Decl. ¶3, E.R. at 31.) Notably, GNLV did end up deposing all four of the excluded claimants, and their depositions are part of the summary judgment record. (R.76-51 (Lee Dep.); R.77-14 (Kennedy Dep.); R.76-52 (Hawthorne Dep.); R.76-50 (Sarant Dep.).) As the EEOC explained in its opening brief (Opening Br. at 22-23), GNLV knew that it could ask the court not only for a deadline to name parties, but also for a deadline to name claimants. Oddly, GNLV cites to a scheduling order in EEOC v. Valentino Las Vegas, LLC, No. 04-1357 (D. Nev. Mar. 1, 2005) (unpublished) (reproduced in Supp. Excerpts of Record at Tab 6), as evidence that "the EEOC had clear notice that the deadline to name additional parties would be relevant to whether the EEOC could name new class members." (GNLV Br. at 26.) That scheduling order, however, expressly distinguishes between parties and claimants. (See EEOC Br. at 22-23.) Contrary to GNLV's interpretation, the scheduling order in Valentino actually supports the EEOC's position that a deadline for adding parties cannot, by itself, preclude the EEOC from adding claimants at a later date. Cf. EEOC v. ABM Indus., Inc., No. 07-1428 (E.D. Cal. Feb. 4, 2010) (unpublished) (reproduced in Addendum) (permitting EEOC to add late- named claimants and then imposing a specific deadline for the naming of additional claimants). Public policy strongly supports the inclusion of the four claimants. The EEOC has a statutory duty to identify all potential claimants and to seek relief on their behalf. See Gen. Tel. Co. of the N.W. v. EEOC, 446 U.S. 318, 324-25 (1980) (Title VII "authorize[s] the EEOC to sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the Act"). Congress has determined that awards of damages to individual claimants are necessary not only to fully compensate victims of discrimination, but also to deter further discrimination. See EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 589 (9th Cir. 2000) (authorizing damages for each individual claimant in an EEOC lawsuit up to the full amount of the statutory cap). A district court abuses its discretion when it "reaches a result that is illogical, implausible, or without support in inferences that may be drawn from the facts in the record." U.S. v. Hinkson, 585 F.3d 1247, 1262 n.21 (9th Cir. 2009). Here, the district court's order to exclude the four claimants is so "illogical" that it compels reversal. The district court offered no authority to support its action and, as discussed here and in the EEOC's opening brief, GNLV's arguments in support of exclusion are all flawed. The EEOC acted properly and with respect for all applicable deadlines when it sought to add the four claimants. This Court should therefore reverse the district court's order and allow the EEOC to add the four claimants to the case. CONCLUSION Both sides agree that the district court should not have dismissed the EEOC's individual claims as moot. GNLV's request that this Court affirm on other grounds would require the Court to wade through 5,275 pages of the summary judgment record. Should the Court choose to do this, it would find that genuine issues of material fact preclude it from granting summary judgment. This case should therefore be remanded for further proceedings. Also, because the district court had no basis for denying the EEOC's request to add the four claimants, this Court should direct that the claimants be added to the case on remand. For the reasons stated here and in the EEOC's opening brief, the EEOC respectfully asks this Court to reverse the dismissal of the individual claims, to reverse the exclusion of the four claimants, and to remand for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel /s/ Gail S. Coleman _________________________ LORRAINE C. DAVIS Attorney Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L Assistant General Counsel Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov Addendum ********************************************************************************** <> <1> The concession does not render the appeal moot because "'the parties continue to seek different relief' from this Court." McDaniel v. Brown, 130 S. Ct. 665, 671-72 (2010) (quoting Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 129 S. Ct. 1109, 1117 (2009)). <2> GNLV incorrectly cites Faragher v. City of Boca Raton, 524 U.S. 775 (1998), for the proposition that it cannot be held liable "if it exercised reasonable care to avoid harassment and to eliminate it where it might occur, and when the complaining employee had failed to act with reasonable care to take advantage of Company policies." (GNLV Br. at 19.) In fact, the Faragher standard applies only in cases of harassment by a supervisor. For harassment by a customer or coworker, the company is liable if it "'knew or should have known of the harassment but did not take adequate steps to address it.'" McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1119 (9th Cir. 2004) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001)). <3> Briefing and evidence pertaining specifically to the individual claims is a subset of the full 5,275 page summary judgment record. <4> For example, GNLV complains that "[t]he EEOC never discussed these four (4) new claimants with the Company, even though its internal guidelines required the EEOC to do so." (GNLV Br. at 22.) The reference to "internal guidelines" presumably means EEOC guidelines for conducting investigations. These guidelines do not apply to the litigation process, where the EEOC is bound by the same rules as other litigants. <5> Suit was filed on September 30, 2004. <6> To the extent that the district court cases cited on page 23 of GNLV's brief suggest that the EEOC may not add additional claimants to a class claim alleging the same type of discrimination that the EEOC previously conciliated and investigated, the cases are inapposite or wrongly decided. The EEOC's effort to add claimants in this suit is not comparable to the effort to expand a suit against one facility into a nationwide lawsuit, which was disallowed by one of those courts. See EEOC v. Jillian's of Indianapolis, 279 F. Supp. 2d 974 (S.D. Ind. 2003) (EEOC could not amend complaint to allege nationwide discrimination when investigation only examined one job site). In the other case relied on by GNLV, the district court erred in concluding that the EEOC could not pursue relief for an individual whose claim the court thought was not "like and related" to those of the charging party whose allegations the EEOC had investigated. See EEOC v. Target Corp., 2007 WL 1461298 (E.D. Wisc. 2007) (unpublished). The Target court erred in two ways: the "like or related" standard does not apply to EEOC litigation, but only to private lawsuits, EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir. 2005), and even if the standard did apply, the rejected claimant alleged exactly the same kind of race discrimination, by the same company, within the same corporate region, and within the same time frame as the charging party whose claim the EEOC investigated. <7> The fact that only ten people ultimately agreed to step forward does not mean that the EEOC was wrong in believing at the outset of the litigation that it would be able to prove a widespread pattern or practice of discrimination. Just because people were unwilling to be named publicly does not mean that they did not exist.