Equal Employment Opportunity Commission v. Joe's Stone Crab, Inc. 98-5367 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________________________________ No. 98-5367 _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. JOE'S STONE CRAB, INC., Defendant-Appellant. ______________________________________________ On Appeal from the United States District Court for the Southern District of Florida ______________________________________________ Response of the Equal Employment Opportunity Commission to Appellant's Motion for Clarification or Petition for Rehearing ______________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W. JENNIFER S. GOLDSTEIN Washington, DC 20507 Attorney (202) 663-4733 EEOC v. Joe's Stone Crab, Inc., No. 98-5367 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case: JoAnn S. Bass, President of Joe's Stone Crabs, Inc. Carol Coyle, Claimant Lorraine C. Davis, Assistant General Counsel, EEOC Equal Employment Opportunity Commission, Plaintiff Jennifer S. Goldstein, Attorney, EEOC Robert D. Hertzberg, Co-Counsel for Defendant Hon. Shelby Highsmith, U.S. District Judge, S.D. Fla. Hon. Daniel T.K. Hurley, U.S. District Judge, S.D. Fla. Joe's Stone Crabs, Inc., Defendant Hon. Linnea R. Johnson, U.S. Magistrate Judge, S.D. Fla. Dawn Keon, Claimant Hon. Joan A. Lenard, U.S. District Judge, S.D. Fla. Hon. Frank J. Lynch, Jr., U.S. Magistrate Judge, S.D. Fla. Raquel Munoz, Claimant Donald Mark Papy, Co-Counsel for Defendant Joel S. Perwin, Co-Counsel for Defendant C1 of 2 Kim Lowery Picazio, Co-Counsel for Defendant Teresa Romanello, Claimant E. David Rosen, Co-Counsel for Defendant Philip B. Sklover, Associate General Counsel, EEOC Robert D. Soloff, Co-Counsel for Defendant C. Gregory Stewart, General Counsel, EEOC Catherine Stratford, Claimant Julie Waas, Co-Counsel for Defendant Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. _________________________ Jennifer S. Goldstein C2 of 2TABLE OF CONTENTS Page Certificate of Interest Persons and Corporate Disclosure Statement Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii RESPONSE TO MOTION FOR CLARIFICATION OR PANEL REHEARING I. The Commission Did Not Pursue this Case as a "Pattern Or Practice" Case in Accordance with the Approach Outlined by Teamsters . . . . . . . . . . . . . . . . . . . . 1 II. The Court Was Well Within its Authority in Leaving the Question of Whether or Not to Conduct Further Evidentiary Hearings to the Sound Discretion of the District Court . . . . . . . . . . . . . . . . . . . . . . . 2 III. The Evidence Introduced at Trial and Credited by the District Court Supports a Finding That Joe's Regularly Engaged in Intentional Discrimination Against Would-be Female Servers. . . . . . . . . . . . 5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Certificate of Service I. THE COMMISSION DID NOT PURSUE THIS CASE AS A "PATTERN OR PRACTICE" CASE IN ACCORDANCE WITH THE APPROACH OUTLINED BY TEAMSTERS. The primary argument set forth by Appellant Joe's Stone Crab, Inc., in its motion for clarification is that the panel erred when it stated in its Opinion that the Equal Employment Opportunity Commission pursued this action as a "pattern or practice" case. Joe's argues further that, upon remand, the district court should not consider any claim under the pattern or practice analytic approach. On this narrow point, we do not disagree. The Commission did not pursue this case under the approach outlined by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 359-62 (1977).<1> For this reason, we would not seek to have this case considered under Teamsters upon remand. We therefore would not object if this Court amended its Opinion to clarify that the Commission did not pursue this case under the Teamsters "pattern or practice" approach. II. THE COURT WAS WELL WITHIN ITS AUTHORITY IN LEAVING THE QUESTION OF WHETHER OR NOT TO CONDUCT FURTHER EVIDENTIARY HEARINGS TO THE SOUND DISCRETION OF THE DISTRICT COURT. In ordering a remand, this Court stated that the district court "may conduct the relevant factfinding requisite for determining liability" on the Commission's claim that Joe's intentionally discriminated against women. Op. at 54; see also op. at 54 n.23 (noting district court has discretion to hear additional evidence, but is not obligated to do so). Joe's challenges this Court's determination that such procedural decisions are best left to the district court's discretion. Joe's states flatly that in ordering a remand, this Court has "no authority . . . to permit the record to be reopened." Motion at 9 n.15. Joe's contends this Court should amend its Opinion "to limit the district court to the present record." Id.; see also Motion at 12 n.19 ("absent a cross appeal by the EEOC, any reconsideration of the disparate treatment ruling must be limited to the current record"). Joe's argument on this point is without merit, for the overwhelming weight of authority makes clear that a court of appeals may give a district court the discretion to conduct additional evidentiary hearings upon remand. This Court has long conferred upon district courts the discretion to conduct additional hearings. In Eastside Church of Christ v. National Plan, Inc., 391 F.2d 357, 363 (5th Cir. 1968)<2>, for example, the Court remanded the case to the district court for further findings and conclusions, and held that the additional findings "may be made on the same record or on the record as supplemented, all in the discretion of the District Court."<3> Likewise, in Walker v. Georgia, this Court remanded the case to the district court to make additional findings and conclusions, with the instruction that the "new findings and conclusions may be made on the same record or on the record as supplemented, all in the discretion of the District Court." 405 F.2d 1191, 1193 (5th Cir. 1969); see also B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1268 (5th Cir. 1971) (remanding for additional findings and conclusions, and holding that the "district judge need not confine his inquiry to the existing record"); 9A Wright & Miller, Federal Practice and Procedure, § 2577 (1995) (appellate court remanding for additional findings may "leave it to the trial court to decide whether further findings should be on the basis of the existing record or on the record as supplemented on the remand"). This Court therefore acted in accordance with longstanding precedent in leaving the matter of whether to hold additional proceedings to the district court's discretion. Joe's cites no authority holding that a district court must be limited to the current record upon remand. Instead Joe's contends that authorities it cited for a different proposition also show that authorizming the district court to conduct evidentiary hearings was "overbroad . . . relief." Motion at 9 n.15 (referring to authorities cited in Motion at 8 n.14). The authorities Joe's cited in footnote 14 stand for the well-settled proposition that a prevailing party may advance any ground in support of a judgment in its favor, but may not seek to modify the judgment without a cross-appeal. See, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 119 n.14 (1985). These authorities are irrelevant to the issue of further evidentiary proceedings, however, because conducting further proceedings does not modify the judgment of the district court.<4> Evidentiary hearings are a matter of procedure, as this Court characterized them. Op. at 54 n.23. Joe's contention that a cross-appeal is somehow required for additional evidentiary hearings therefore makes no sense. Moreover, to our knowledge, no court has ever held a cross-appeal is a prerequisite to authorizing additional hearings on remand. This Court therefore properly left the decision to conduct additional proceedings within the district court's discretion. III. THE EVIDENCE INTRODUCED AT TRIAL AND CREDITED BY THE DISTRICT COURT SUPPORTS A FINDING THAT JOE'S REGULARLY ENGAGED IN INTENTIONAL DISCRIMINATION AGAINST WOULD-BE FEMALE SERVERS. In its Motion, Joe's makes a number of subsidiary arguments that are legally and factually flawed. While the Commission believes this Court need not, and should not, address the subsidiary arguments at this stage of the proceedings, before the district court has had an opportunity to make its determination, we outline them for the Court. Joe's claims the evidence in this case is insufficient to establish a "pattern or practice" of discrimination. Although the Commission did not pursue this case under the method laid out in Teamsters, it was the Commission's theory that Joe's repeatedly and regularly denied women the opportunity to work as servers at Joe's because of their sex.<5> We are concerned that Joe's is seeking a determination from this Court regarding the intentional discrimination claim, notwithstanding this Court's directive that the district court consider the issue first. We therefore address Joe's arguments simply to point out that there is evidence that Joe's routinely hired only men to work as servers in the restaurant. As we argued to the Court, it is our view that the district court's findings support the Commission's theory of intentional discrimination. These findings are based not only on circumstantial evidence, but also on testimony from such officials as Roy Garrett, who stated that it was "always a tradition [at Joe's] . . . that it was a male-server type of job." R21-1484-1485. Garrett also testified that after 1991, when the Commission filed its discrimination charge, the composition of the wait staff changed when Joe's "became more cognizant of having to hire more females." R21-1485. Moreover, it is not the case, as Joe's asserts, that "in ruling on the disparate treatment claim, the district court rejected the testimony of [Cathy Evans, Cassandra Williams, and Barbara Mommsen]." Motion at 11. In fact, the district court's liability decision contains no reference to the testimony of these witnesses. The district court did, during the course of the remedies trial, state that it rejected testimony that Joe's owners "had a policy that they said to the people in charge of hiring, don't hire women." R41-1441 (quoted in Motion at 12). But the district court's statement during the remedies trial does not indicate, for example, whether or not it found credible Williams' testimony that she overheard a maitre d' tell a female applicant that two server positions at Joe's weren't available to women. R15-175. This Court therefore was correct when it stated that the "district court made no specific findings on the credibility of these witnesses." Op. at 49. In any event, the district court will be able to clarify credibility issues on remand, where it will be able to make clearer findings on all the evidence: direct, anecdotal, circumstantial, and statistical. Finally, Joe's states that "Joe's managers and employees . . . took no actions . . . which in any way constituted an 'act' of discrimination." Motion at 14. Joe's is incorrect, for there is considerable evidence that Joe's managers not only preferred male servers, but also acted on that preference in ways that denied women the opportunity to work as servers. As this Court observed, there was evidence - credited by the district court - that Joe's consistently hired only men in order to create an "Old World," fine-dining ambience. Op. at 38-39; op. at 70-72 (Hull, J., concurring and dissenting in part). There was evidence that Joe's was content with its males-only applicant pool and server staff (R21-1485 (Joe's was "traditionally a male place")); that it chose to recruit in ways that discouraged women from even applying to Joe's (R21-1480-81); and that it only changed its hiring practices after the Commission's charge in 1991. R21-1483 (Garrett testimony that "we seemed to be trying harder to hire more women than we had ever tried"). The Commission presented testimony from experienced women servers who stated that they would have applied to Joe's, if they had heard that Joe's was willing to hire women. R17-530; R15-220; R16-327; R17-584. The Commission also presented testimony from women who did apply and were interviewed, but were not hired by Joe's. For example, Carol Coyle, testified during the liability trial that the men interviewing her did not seem interested in considering her for a job; one interviewer "was reading the racing form" during her interview. R17-650. The district court ultimately found that Coyle was not hired "because the hiring panel engaged in sex discrimination." R11-324-12-13 (damages opinion). In sum, there was considerable evidence adduced at trial that Joe's acted to exclude women as servers and maintain its all-male staff of waiters. Joe's managers created and maintained an "Old World" atmosphere, which only began to change after the charge of sex discrimination was filed. Such evidence would support a finding by the district court that Joe's discriminated against women because of their sex. CONCLUSION The Commission would not object if this Court amended its Opinion to clarify that the Commission did not pursue this case under the Teamsters "pattern or practice" approach. On all other issues raised by Joe's, this Court should deny the petition for rehearing. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF SERVICE I hereby certify that two copies of this response were mailed, first class, postage prepaid, on this 26th day of October, to the following: Joel S. Perwin Podhurst, Orseck, Josefsberg, Eaton Meadow, Olin & Perwin 25 West Flagler St., Suite 800 Miami, FL 33130-1780 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 1 As the panel correctly explained in its opinion, a plaintiff seeking to establish a "pattern or practice" of discrimination does not focus on whether a particular individual was a victim of discrimination. Op. at 53. Instead the plaintiff concentrates more generally on the company's practices, and seeks to establish that "'discrimination [is] the company's standard operating procedure - the regular rather than [the] unusual practice." Op. at 52 (quoting Teamsters, 431 U.S. at 336). If the plaintiff meets this distinct burden, and the employer fails to rebut it, then at the remedy stage the defendant is held to a higher burden. The employer bears the burden of demonstrating that an individual applicant was denied a job for lawful reasons. Op. at 53 n.22. As noted above, however, the Commission did not pursue this analytic approach in this case. The Commission, while maintaining that Joe's did regularly and consistently discriminate on the basis of sex in its hiring practices, focused on particular individuals and argued that those individuals were victims of sex discrimination. Accordingly, neither party was subject to the unique burdens of proof outlined in Teamsters. 2 Fifth Circuit decisions rendered prior to October 1, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc). 3 The district court ultimately decided not to accept further evidence. That exercise of discretion was affirmed on appeal. McGregor Blvd. Church of Christ v. Walling, 428 F.2d 401, 405-06 (5th Cir. 1970). 4 By contrast, if the Commission had been seeking additional monetary relief for claimants, a cross-appeal would have been required. But we were not seeking additional relief; we were simply seeking to have the district court's initial judgment affirmed on the stated grounds or on alternative grounds. A cross-appeal therefore would have been inappropriate. 5 There is no requirement that a plaintiff who alleges more than an isolated instance of discrimination must invoke the Teamsters method for analyzing "pattern or practice" cases. Joe's thus is incorrect when it refers to disparate treatment as "individual." Motion at 2. Disparate treatment refers to the whole range of discrimination in which an "employer simply treats some people less favorably than others because of their . . . sex . . ." Teamsters, 431 U.S. at 335 n.15; see also id. at 335 (referring to a "pattern or practice of such disparate treatment"). A disparate treatment claim may involve an assertion that an employer discriminated on one occasion or that it discriminated repeatedly against a number of individuals, regardless of whether the case is presented as a "pattern or practice" case.