No. 06-8053 ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Respondent, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant-Petitioner. ___________________________________________________________ On Petition for Interlocutory Appeal from the United States District Court for the Western District of Pennsylvania Hon. Terrence F. McVerry District Court Docket No. 05-cv-404 ___________________________________________________________ THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S OPPOSITION TO THE PETITION FOR INTERLOCUTORY APPEAL ___________________________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L. St., NW, Rm. 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney U.S. Equal Employment Opportunity Commission's Opposition to Novartis' Petition for Permission to Appeal In this enforcement action, Plaintiff-Respondent the U.S. Equal Employment Opportunity Commission ("Commission") alleges that Defendant- Petitioner Novartis Pharmaceuticals Corporation ("Novartis") retaliated against Charging Party Bethany Brandstatter because she engaged in activity protected under Title VII of the Civil Rights Act of 1964. The district court rejected Novartis' argument that because Novartis separately settled Brandstatter's complaint-in-intervention, the court lacked subject matter jurisdiction over the Commission's claim for injunctive relief. As the district court properly reasoned, and the weight of authority makes clear, Title VII unequivocally vests the district court with subject matter jurisdiction to hear claims brought by the Commission under that statute, and the Commission may thereby pursue its own independent litigation to vindicate the public interest despite monetary settlement by a charging party. Novartis cannot establish the statutory prerequisites for permissive interlocutory appeal, and therefore this Court should reject Novartis' petition. Background In April 2002, Brandstatter became employed by Novartis as a pharmaceutical sales representative, under the supervision of District Manager Ivory Gethers.<1> District Court Docket No. ("R.") 36 (appendix to the Commission's memorandum in opposition to Novartis' motion to dismiss) Exs. A, B. On or around September 3, 2002, Brandstatter reported to Joe Palumbo, a Novartis human resources employee, that she had been subjected to sexual harassment by Gethers. Id. Ex. C. Brandstatter expressed concern about being subjected to retaliation for her complaint, and was assured by Novartis that her complaint would remain confidential. Id. Ex. A. Novartis investigated Brandstatter's complaint, and concluded that he had used inappropriate sexual language in group situations and that other female employees were "uncomfortable" with him. Id. Ex. D. On October 7, 2002, Gethers advised Brandstatter that he was aware of her complaint. R.1 (complaint) at par. 7(b). Gethers told Brandstatter that she should not have complained directly to human resources, and that she had been "unethical" by going over his head with her complaints. R.36 Ex. C. Gethers also told Brandstatter that he would be placing her on a "Territory Coaching Plan" because of her alleged poor job performance. Id. The Territory Coaching Plan was not imposed until December, 2002, and was to run from December 18, 2002, to March 18, 2003. R.1 at par. 1(c). However, Gethers did not remove Brandstatter from the plan until April 11, 2003. Id. at par. 7(i). On January 28, 2003, Gethers told Brandstatter that he was reducing her performance rating for 2002 to a "partially meets" rating because she had complained to human resources about his conduct. Id. at par. 7(d). Brandstatter contacted Novartis human resources two days later because she was concerned about retaliation from Gethers. Id. Brandstatter left a message but was not called back. Id. On February 4, 2003, Brandstatter again contacted human resources regarding Gethers. Id. Brandstatter spoke with Maria LaRosa, a human resources official at Novartis, and informed her that Gethers had reduced her performance rating in retaliation for her complaint. Id. LaRosa responded that because the sexual harassment had ceased, Brandstatter had no basis for complaining about retaliation, and suggested that Brandstatter try to work out the problem directly with Gethers. Id.; R.36 Ex. C. On February 18, 2003, Brandstatter complained to Gary Branch, Gethers' supervisor, that Gethers was subjecting her to retaliation in the form of excess scrutiny and criticism of her job performance. R.1 at par. 7(f). In response, Branch suggested that Brandstatter try to work out the problem "within [the] district." R.36 Ex. C. On March 7, 2003, Brandstatter asked Gethers if she would be receiving a salary increase, as she had been advised by several other Novartis sales representatives in her district that they were receiving salary increases. R.1 at par. 7(g). Gethers responded that Brandstatter would not receive a salary increase because she was on the Territory Coaching Plan. Id. That same day Brandstatter again complained to Novartis human resources about the retaliation. Id. On March 14, Branch asked Brandstatter to consider transferring to another district, but she rejected that option as it would cause her a hardship. Id. at par. 7(h). In late April 2003, Brandstatter discovered that she was not included on a "Phase III Training" list. Id. at par. 7(j). Brandstatter had previously completed the prerequisite courses for this training, which is needed to receive a promotion, and other sales representatives from her division were signed up for the Phase III Training. R.36 Ex. C. When Brandstatter asked a Training Manager why she was not included on the list, she was told to speak with Gethers, who told her he could not give her any information about why she had been excluded. R.1 at par. 7(j). Brandstatter made further inquiries to Novartis as to why she was excluded from the training, but was referred back to Gethers. Id. After the training, three of Brandstatter's colleagues were promoted to the Sales Consultant position, with concurrent salary increases. Id. at par. 7(k). On August 29, 2003, Brandstatter resigned due to the continuing retaliation by Gethers, and Novartis' failure to take any action to remedy the retaliation. Id. at par. 7(l). There is no indication that Novartis investigated or otherwise took any action in response to any of Brandstatter's complaints of retaliation. On April 21, 2003, Brandstatter filed a charge of discrimination with the Commission, alleging sexual harassment and retaliation. R.36 Ex. A. After investigating the charge, the Commission concluded that there was reasonable cause to believe that Brandstatter had been subjected to sexual harassment and retaliation, and that she was constructively discharged as a result of the retaliation. Id. Ex. B. On March 24, 2005, the Commission initiated the instant lawsuit, alleging unlawful retaliation in violation of Title VII. R.1. In the complaint, the Commission sought both victim-specific and injunctive relief, including a permanent injunction against future retaliatory actions by Novartis against its employees, and requiring Novartis to carry out policies, practices, and programs which eradicate the effects of its past and present unlawful employment practices.<2> Id. After the Commission initiated its litigation in federal district court, Brandstatter intervened in the action. When subsequent efforts among the parties to reach a global settlement were unsuccessful, Brandstatter entered into a confidential monetary settlement with Novartis and terminated her litigation as an intervenor in the Commission's lawsuit. Novartis then moved to dismiss the Commission's suit for lack of subject matter jurisdiction, contending that because Brandstatter had been "made whole" by the settlement of her complaint-in- intervention, there no longer existed an injury in fact sufficient to satisfy Article III's "case or controversy" requirement, and therefore the district court lacked subject matter jurisdiction. R.29 (Defendant's memorandum in support of motion to dismiss). The district court denied Novartis' motion, adopting the reasoning of the court in Equal Employment Opportunity Commission v. Bay Ridge Toyota, 327 F. Supp. 2d 167 (E.D.N.Y. 2004). EEOC v. Novartis Pharm. Corp., No. 05-404, Memorandum Opinion and Order of Court, at 6 (W.D. Pa. Aug. 8, 2006) ("Decision") (attached at Appendix 3). The court noted that in Bay Ridge the court had examined the history, rationale, and purpose behind Congress' decision to give the Commission the power to initiate its own civil action in Title VII cases, and had come to the conclusion that "the employer's private settlement of the employee's sexual harassment claim did not bar the EEOC from bringing an action based on the discrimination alleged by the employee." Id. The court noted that in Bay Ridge the Commission was only seeking injunctive relief, and that the court in Bay Ridge concluded that under those circumstances "‘[s]ettled law plainly demonstrates that EEOC's unique role in vindicating the public interest makes this type of suit for injunctive relief acceptable, even where the employee has entered into a settlement with the employer.'" Id. (quoting Bay Ridge, 327 F. Supp. 2d at 173-74) (emphasis added by district court). The court recognized that the Commission "maintains a right of action independent of the charging party," and that it is "well settled that Title VII provides that the EEOC may recover injunctive relief upon a showing of intentional employment discrimination." Id. at 7 (citing 42 U.S.C. § 2000e- 5(g)(1)). The court further recognized that the Commission may obtain general injunctive relief "‘even where the EEOC only identifies one or a mere handful of aggrieved employees,'" and that it may obtain a permanent injunction "‘even where it does not allege a pattern or policy of discrimination.'" Id. at 8 (quoting EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 468 (6th Cir. 1999) (emphasis added by district court). The court concluded that because Brandstatter's claim for damages has been completely resolved, the Commission is barred from seeking victim-specific relief, but it may maintain its claim for injunctive relief. Id. at 8-9. Novartis subsequently moved the court to amend its order to certify for interlocutory appeal the following question: Whether a district court maintains subject matter jurisdiction over a lawsuit filed by the EEOC once the only allegedly injured party has been made whole through a settlement and, although the EEOC generally requests injunctive relief, it has not alleged a pattern or practice of retaliation—i.e., can the EEOC demonstrate that it has standing under these circumstances. R.43 (Defendant's motion to amend). Without explanation, the court granted Novartis' motion to amend and certified the question for interlocutory appeal. R.46 (amended order). Permission to appeal should be denied because there exists no substantial ground for difference of opinion as to the certified question, and interlocutory appeal will not materially advance the ultimate termination of the litigation. Courts of appeals have the discretion to entertain appeals from interlocutory orders of the district courts when the district courts determine that the orders involve "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). That is, "there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation. . . . Unless all these criteria are satisfied, the district court may not and should not certify its order to us for an immediate appeal under section 1292(b)." Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in original). These requirements "are to be strictly construed and applied." Milbert v. Bison Labs., Inc., 260 F.2d 431, 435 (3d Cir. 1958). Even where the district court has determined that all the requirements of § 1292(b) have been met, this Court is by no means bound to accept the petition—"[b]oth the district judge and the court of appeals are to exercise independent judgment in each case and are not to act routinely." Id. at 433. "[T]he appellant ‘still has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (citation omitted). This Court's discretion to entertain such appeals is to be "sparingly applied," and "to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation." Milbert, 260 F.2d at 433. "Obviously, such appeals should not be allowed if they are filed solely for the purpose of delay or are based upon spurious grounds." Id. at 434. While the district court agreed to certify the question for interlocutory appeal, its order on Novartis' motion to dismiss makes clear that there is no reasonable, let alone substantial, ground for difference of opinion on the certified question. In addition, because the law so clearly supports resolution of the certified question in favor of the Commission, not Novartis, permitting interlocutory appeal will only delay resolution of the litigation. For these reasons, Novartis has failed to meet its burden to establish that this case presents the requisite "exceptional circumstances" which warrant interlocutory appeal. Therefore the Commission respectfully requests that this Court reject Novartis' petition for interlocutory appeal. I. There can be no question that the district court has subject matter jurisdiction to hear the Commission's claim, as Title VII clearly and unambiguously creates such jurisdiction. On its face, Title VII explicitly provides that the federal district courts are vested with subject matter jurisdiction over lawsuits brought by the Commission to enforce the provisions of Title VII, including those such as the instant suit seeking injunctive relief. First, the statute provides that if, within the proscribed time, the Commission is unable to secure a conciliation agreement acceptable to the Commission, "the Commission may bring civil action against any respondent not a government, government agency, or political subdivision named in the charge." 42 U.S.C. § 2000e-5(f)(1). Second, the statute unambiguously provides that "[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter." Id. § 2000e-5(f)(3). Moreover, "[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice," and order victim-specific relief "as appropriate." Id. § 2000e-5(g)(1). The plain language of the statute leaves no question that district courts have subject matter jurisdiction to hear claims brought by the Commission and that the Commission has the authority to present claims which seek injunctive relief. Novartis has presented no authority which even suggests, let alone holds, that Title VII's express statutory grant of subject matter jurisdiction and authority to seek injunctive relief as redress for violation of the statute, may be abrogated by an alleged "make whole" monetary settlement by an intervening charging party.<3> At best, Novartis confuses the distinction between the remedies which the Commission may seek in a particular litigation, and the district court's subject matter jurisdiction over such a claim. See 42 U.S.C. §§ 2000e-5(f)(3) (subject matter jurisdiction), 2000e-5(g)(1) (remedies). Simply put, the statute makes clear that there exists no substantial grounds for difference of opinion on the question of subject matter jurisdiction. II. The overwhelming weight of authority supports the conclusion that the Commission's right of action is independent of the charging party, and cannot be adversely affected by the charging party's decision to independently enter into a monetary settlement with the defendant. It is settled law that the Commission's authority to maintain suit under Title VII once a charge has been filed is completely independent of the charging party's cause of action. Novartis' assertion to the contrary is premised on the incorrect notion that the Commission's power to bring suit is identical to, or derivative of, the charging party's power to do so. Novartis' premise has long been flatly rejected by the Supreme Court and courts of appeals, which have expressly and implicitly recognized that Congress endowed the Commission with the statutory right to bring suit under Title VII to vindicate the public interest implicated by acts of unlawful discrimination, and that this right exists independent of the charging party's individual rights or interests. See EEOC v. Waffle House, 534 U.S. 279, 291 (2002) ("[O]nce a charge is filed . . . the EEOC is in command of the process. . . . The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake. . . . And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum."); Gen. Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (recognizing that Title VII's authorization of private suits "suggests the EEOC is not merely a proxy for the victims of discrimination . . . the agency is guided by ‘the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement'") (citation omitted; second omission in original)); EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 461-62 (6th Cir. 1999) ("Congress crafted Title VII so that the EEOC would possess an independent right to sue in federal court to vindicate the public interest against employment discrimination . . . the EEOC and aggrieved individuals seek to vindicate distinct though overlapping interests."); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1253 (11th Cir. 1997) (recognizing the charging party's decision to not seek reinstatement as relief does not prevent the Commission from pursuing broader injunctive remedies, "it being the EEOC, and not the individual claimant, that is suing," and that "[t]he EEOC represents the public interest when litigating claims, and, through injunctive relief, seeks to protect not only the rights of the individual claimant, but those of similarly- situated employees by deterring the employer from future discrimination.") (citations omitted); EEOC v. United Parcel Serv., 860 F.2d 372, 376-77 (10th Cir. 1988) (recognizing that the Commission's right of action is independent of the charging party's rights, and adopting the First Circuit's conclusion that settlement by a charging party does not deprive the Commission of standing to sue); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987) ("The EEOC's right of action is independent of the employee's private action rights. . . . ‘[T]he EEOC promotes public policy and seeks to vindicate rights belonging to the United States as sovereign.'") (citations omitted) (italics in original)); Harris v. Amoco Prod. Co., 768 F.2d 669, 682 (5th Cir. 1985) (recognizing that Title VII "imbues the Commission with the authority to continue litigating after the main plaintiffs have settled out of a lawsuit" largely because "the EEOC exists to represent the public interest in equal employment opportunity," and rejecting the district court's conclusion that no case or controversy existed between the defendant and the Commission). This great weight of authority just as clearly establishes that the Commission's ability to protect the government's independent public interest in eradicating unlawful discrimination is not adversely affected by a charging party's decision to enter into a monetary settlement of her individual claim. See, e.g., Frank's Nursery, 177 F.3d at 465 (recognizing, regarding EEOC actions brought where the charging parties had settled or otherwise waived their right to sue, that "an employee cannot preclude an EEOC suit by waiving her own right to sue under Title VII"); United Parcel Serv., 860 F.2d at ("The EEOC's right to proceed endures until the alleged discrimination is eradicated," regardless of whether or not the charging party settles his individual claim); Goodyear, 813 F.2d at 1542-43 (charging party's settlement did not moot the Commission's right of action seeking injunctive relief to vindicate the public interest in preventing employment discrimination). This authority strongly and unambiguously supports rejection of Novartis' position regarding the certified question, and Novartis has cited no Supreme Court or Appellate Court precedent which contradicts this authority or suggests a different result.<4> In short, the weight of authority shows that there exists no reasonable, let alone substantial, ground for difference of opinion as to whether the Commission may proceed with its own litigation seeking injunctive relief even where the charging party enters into a monetary settlement of her individual claim. While Novartis makes several arguments that a substantial ground for difference of opinion exists as to the Commission's standing to maintain an action for injunctive relief once the charging party settles, none are availing. First, Novartis asserts that the Court "expressly acknowledged" in Waffle House that the certified question has not been resolved, and that no court has specifically held that subject matter jurisdiction "exists under these precise circumstances." Petition at 15. This is not true. In Waffle House, the Court stated in dicta that "[i]t is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of relief the EEOC may seek."<5> 534 U.S. at 297. Having decided that the Commission could pursue a claim in court where the charging party was precluded from doing so and had not recovered any monetary compensation, the Court merely stated that it was not resolving the question of whether the Commission's ability to obtain monetary relief would be affected where the charging party had already been compensated. The Court did not hold, or even suggest, that such conduct by a charging party would have the effect of depriving the court of subject matter jurisdiction to entertain the suit. Indeed, the Court specifically recognized that "it simply does not follow from the cases holding that the employee's conduct may affect the EEOC's recovery that the EEOC's claim is merely derivative." Id. (emphasis added). The Court noted that a charging party's conduct with regard to victim-specific relief—such as failing to mitigate damages or accepting a monetary settlement—may have the effect of limiting any recovery the Commission could make on behalf of the charging party. Id. at 296. The Commission certainly would not be precluded from maintaining a suit for injunctive relief under such circumstances. There was no question as to whether the Commission could continue to seek injunctive relief where the charging party had acted in a manner that limited his own individual rights. See id. at 296. In fact, the circuit courts had consistently recognized that the Commission could maintain an action for injunctive relief. See, e.g., EEOC v. Kidder, Peabody & Co., 156 F.3d 298, 302-03 (2d Cir. 1998) (in ADEA/arbitration agreement context, allowing the Commission to pursue injunctive relief even where an employee has previously settled, waived or litigated his individual claim, and recognizing that the same rule adheres in other circuits), abrogated on other grounds by EEOC v. Waffle House, 534 U.S. 279 (2002). Furthermore, in Waffle House the Court cited approvingly to several decisions where the charging party's conduct limited the Commission's ability to recover victim-specific monetary relief but did not affect the Commission's ability to otherwise bring suit. See 534 U.S. at 296-97 (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982) (rejection of unconditional job offer ends the accrual of potential back pay liability; Commission's suit otherwise unaffected by conduct of the charging party); Goodyear, 813 F.2d at 1542 (rejecting defendant's argument that its settlement with the charging party rendered the Commission's action for injunctive relief moot; only the Commission's request for back pay was rendered moot by the settlement); United States Steel, 921 F.2d at 495 (res judicata precluded Commission recovery for certain individuals who had previously unsuccessfully litigated their own claims; Commission's litigation was otherwise unaffected by the actions of the individuals)). The body of precedent makes clear that the Commission's right and authority to litigate employment discrimination claims is distinct from that of the individual claimant, and the individual claimant's monetary settlement, waiver, or other action limiting her individual right to litigate a claim cannot serve to preclude the Commission from litigating to protect the public interest in deterring and eradicating unlawful discrimination. Novartis next argues that interlocutory appeal is appropriate because the certified question is one of first impression in this Court. Petition, at 15-16. Even if true, the fact that an issue is one of first impression is not a ground for interlocutory appeal. That an issue may be one of first impression in this Court does not mean that it is also one as to which there is substantial ground for difference of opinion. Moreover, this Court can certainly decide the issue when, and if, it is properly presented to the Court after a final decision. Novartis also ignores that Waffle House is clearly controlling precedent that recognizes that the Commission can proceed with a claim for injunctive relief despite the fact that the charging party acts to abandon his individual rights under Title VII. See Waffle House, 534 U.S. at 285. Given the Supreme Court's analysis in Waffle House, this Court would be hard pressed to rule to the contrary. Accordingly, it makes no difference that the issue may be one of first impression with this Court. Novartis argues that the massive body of law holding that the Commission may proceed in litigation after a charging party has settled is inapposite because in those cases, unlike here, the Commission was alleging a pattern, practice, or policy of discrimination. Petition at 16. Novartis has not offered any argument or authority as to why this is a distinction which makes a difference, and, contrary to Novartis' assertion, it is immaterial to the instant question whether the Commission alleges a claim of "pattern or practice" discrimination or simply a claim of individual disparate treatment. While Novartis states that cases such as Harris, United Parcel Service, and Goodyear involve allegations of patterns, practices, or policies of unlawful conduct, see Petition at 16, those cases do not suggest, let alone hold, that the Commission's authority to independently litigate in the public interest, and to obtain injunctive relief, is dependent on whether a pattern, practice, or policy of discrimination has been alleged. See United Parcel Serv., 860 F.2d at 374-77; Goodyear, 813 F.2d at 1542-43; Harris, 768 F.2d at 674-83; Rather, those cases all stand for the proposition that the Commission was specifically conferred independent litigation authority in order to protect the "‘overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.'" United Parcel Serv., 860 F.2d at 375 (italics in original) (quoting Gen. Tel., 446 U.S. at 326). Nor does the statute support making such a distinction. See 42 U.S.C. § 2000e-5(f)-(g) (conferring Title VII litigation authority upon the Commission, and stating that the court may issue injunctive relief when a violation of the statute is found). Moreover, courts have expressly recognized—and Novartis has failed to identify any contrary appellate or Supreme Court precedent—that the Commission may obtain "general relief, under the equitable discretion of the district court, even where the EEOC only identifies one or a mere handful of aggrieved employees." Frank's Nursery, 177 F.3d at 485-86 (citing EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444, 1449 (6th Cir. 1980); EEOC v. Ilona of Hung., Inc., 108 F.3d 1569, 1578 (7th Cir. 1997); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1292 (7th Cir. 1993)). Courts have recognized that the Commission may obtain a permanent injunction against a defendant employer even where no pattern or policy of discrimination has been alleged.<6> Id. at 468 (citing EEOC v. HBE Corp., 135 F.3d 543, 557 (8th Cir. 1998); Ilona of Hung., 108 F.3d at 1578). Finally, given the abundant body of law rejecting Novartis' position, and clearly holding that the Commission can maintain an action under Title VII seeking injunctive relief notwithstanding the settlement by an intervenor, it is virtually inconceivable that appellate review at this interlocutory juncture could materially advance the litigation. For all the aforementioned reasons, the Commission submits that the statutory prerequisites for interlocutory appeal have not been met, and Novartis has failed to meet its burden to show this is an exceptional case which warrants interlocutory review. See Milbert, 260 F.2d at 433. Therefore, the Commission respectfully requests that this Court deny the petition for permission to appeal. Respectfully submitted, RONALD S. COOPER _________________________ General Counsel JAMES M. TUCKER Attorney VINCENT J. BLACKWOOD Acting Associate General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS 1801 L. St., NW, Rm. 7024 Assistant General Counsel Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that two copies of the Commission's memorandum in opposition to interlocutory appeal were served via FedEx Next Day Air Delivery, postage prepaid, on October 23, 2006, to the following counsel of record for Defendant-Petitioner Novartis Pharmaceutical Corporation: Martha Hartle Munsch, Esq. Kim Watterson, Esq. Abigail Flynn-Kozara, Esq. REED SMITH LLP 435 Sixth Ave. Pittsburgh, PA 15219 _________________________ James M. Tucker Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov *********************************************************************** <> <1> The district court certified the question for interlocutory appeal early in the proceedings, prior to discovery. For this reason, the factual allegations presented herein are based on the Commission’s complaint and other pre-discovery pleadings and supporting attachments presented to the district court, and represent what the Commission expects to prove once discovery has concluded. The documents cited in this opposition are attached at Appendix 1 (complaint) and 2 (Exhibits A-D of the appendix to the Commission’s memorandum in opposition to Novartis’ motion to dismiss). <2> In an attempt to cast the case in a light most favorable to itself, Novartis baldly asserts that the Commission has only alleged that “one manager,” Gethers, retaliated against “one employee,” Brandstatter. Petition at 8. However, the Commission has actually alleged that, as this background presentation describes, Gethers and other members of Novartis management unlawfully retaliated against Brandstatter, including through management’s failure to act to remedy Gethers’ retaliatory conduct. <3> Novartis asserts that Brandstatter has been “made whole” by settlement. Although the Commission is only seeking injunctive relief in this action, the Commission does not concede that the settlement effected appropriate make-whole relief. The terms of that settlement are confidential and not known to the Commission. <4> In a footnote, Novartis cites as support EEOC v. E.I. Du Pont de Nemours & Co., No. 03-1605, 2005 WL 1630815 (E.D. La. Jan. 4, 2005), an unpublished district court decision. See Petition at 18 n.8. However, Du Pont in no way stands for the proposition that the Commission may not, under the circumstances of the instant case, continue to pursue its claim for injunctive relief subsequent to the charging party’s entering into a private monetary settlement with Novartis. <5> Waffle House arose under the Americans with Disabilities Act (ADA), which uses the same enforcement powers, remedies, and procedures as Title VII, and so Title VII provisions on the EEOC’s authority provide the basis for the Court’s analysis. See Waffle House, 534 U.S. at 285-86. <6> Novartis ignores the fact that the Commission alleges in its complaint that Novartis “engaged in unlawful employment practices at its Pittsburgh, Pennsylvania location,” and the request for injunctive relief refers to remedying “past and present unlawful employment practices” and preventing future retaliation by Novartis officials “or any other practice which operates to retaliate against employees.” R.1 (Attached at Appendix 1). Clearly, the Commission’s action contemplates obtaining injunctive relief necessary to address not only the particular retaliatory conduct of Gethers toward Brandstatter, but Novartis’ larger organizational problem regarding retaliation against its employees.