IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________ No. 03-10719 _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEMCO AEROPLEX, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Northern District of Alabama Southern Division _______________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 EEOC v. Pemco Aeroplex, Inc., No. 03-10719 CERTIFICATE OF INTERESTED PERSONS In accordance with Eleventh Circuit Rules 26.1-1, I certify that the following persons or entities have an interest in the outcome of this case: The Honorable William M. Acker, U.S. District Judge, N.D. Ala. *Air International, Inc., Pemco-Related Legal Entity. Mitchell G. Allen, Attorney for Defendant. Naomi Hilton Archer, Senior Trial Attorney, EEOC. Vincent J. Blackwood, Associate General Counsel, EEOC. Stephen E. Brown, Attorney for Defendant. Mildred Byrd, Supervisory Trial Attorney, EEOC. *N. Lee Cooper, Attorney for Defendant. Eric S. Dreiband, General Counsel, EEOC. Equal Employment Opportunity Commission, Plaintiff-Appellant. Charles Guerrier, Regional Attorney, EEOC. Jeffrey A. Lee, Attorney for Defendant. Maynard, Cooper & Gale, P.C., Attorneys for Defendant. Pemco Aeroplex, Inc., Defendant-Appellee. *Pemco Aircraft Engineering Services, Pemco-Related Legal Entity. *Pemco Air Services System, Inc., Pemco-Related Legal Entity. *Pemco Aviation Group, Inc., Pemco's Parent Corporation. *Pemco Engineers, Inc., Pemco-Related Legal Entity. *Pemco World-Air Services, Pemco-Related Legal Entity. Barbara L. Sloan, Attorney, EEOC. *Space Vector Corporation, Pemco-Related Legal Entity. Carolyn L. Wheeler, Acting Associate General Counsel, EEOC * from Pemco's Certificate Of Interested Persons _______________________________ Barbara L. Sloan TABLE OF CONTENTS Page(s) CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . .i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . .iii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Ameritech Benefit Plan Committee v. CWA, 220 F.3d 814 (7th Cir. 2000). . . . . . . . . . . . . . . .5 Benson & Ford v. Wanda Petroleum Co., 833 F.2d 1172 (5th Cir. 1987) . . . . . . . . . . . . . . 14 Citibank v. Data Lease Finance Corp., 904 F.2d 1498 (11th Cir. 1990). . . . . . . . . . . . . . 6 Drummond v. United States, 324 U.S. 316 (1945) . . . . . . . . . . . . . . . . . . . 16 EEOC v. Hernando Bank, 724 F.2d 1188 (5th Cir. 1984) . . . . . . . . . . . . . . 24 EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975). . . . . . . . . . . . 4, 6, 8 EEOC v. Johnson & Higgins, 91 F.3d 1529 (2d Cir. 1996) . . . . . . . . . . . . . . . 24 EEOC v. Mitsubishi Motor Manufacturing of America, 960 F. Supp. 164 (N.D. Ill. 1997) . . . . . . . . . . . . 24 EEOC v. Waffle House, 534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . . 4, 7 Freeman v. Lester Coggins Trucking, 771 F.2d 860 (5th Cir. 1985). . . . . . . . . . . . . . . 9 General Telegraph Co v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . 4, 7 Gonzalez v. Banco Central Corp., 27 F.3d 751 (1st Cir. 1994) . . . . . . . . . . . . . . . 14 Herman v. South Carolina National Bank, 140 F.3d 1413 (11th Cir. 1998). . . . . . . . . . . . . 4, 6 Humphreys v. Tann, 487 F.2d 666 (6th Cir. 1973). . . . . . . . . . . . . . . 10 In re Bemis, 279 F.3d 419 (7th Cir. 2002). . . . . . . . . . . . . . . 4 In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir. 1988) aff'd sub nom Martin v. Wilks, 490 U.S. 755 (1989). . . . 9 In re Piper Aircraft Corp., 244 F.3d 1289 (11th Cir. 2001). . . . . . . . . . . . . . 10 International Ass'n of Machinists Nat'l Pension Fund v. Dickey, 808 F.2d 483 (6th Cir. 1987). . . . . . . . . . . . . . . 12 Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955) . . . . . . . . . . . . . . . . . . . 6 Lovejoy v. Murray, 70 U.S. 1, 3 Wall. 1 (1865) . . . . . . . . . . . . . . . 16 Mann v. City of Albany, Ga., 883 F.2d 999 (11th Cir. 1989)). . . . . . . . . . . . . . 11 Montana v. United States, 440 U.S. 147 (1979) . . . . . . . . . . . . . 6, 11, 17, 22 NAACP v. Michot, 480 F.2d 547 (5th Cir. 1973). . . . . . . . . . . . . . . 19 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . 23 Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) . . . . . . . . . . . . . . . 9, 10, 25 Peralta v. U.S. Attorney's Office, 136 F.3d 169 (D.C. Cir. 1998) . . . . . . . . . . . . . . 12 Petit v. City of Chicago, 1999 WL 66539 (N.D. Ill. Feb. 8, 1999) (unpublished). . . 13 Pollard v. Cockrell, 578 F.2d 1002 (5th Cir. 1978) . . . . . . . . . . . . 11, 13 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . 20 Richards v. Jefferson County, Ala., 517 U.S. 793 (1996) . . . . . . . . . . . . . . . . . . . 15 Riddle v. Cerro Wire & Cable Group, 902 F.2d 918 (11th Cir. 1990) . . . . . . . . . . . . . . 7 South Central Bell Telegraph Co. v. Alabama, 526 U.S. 160 (1999) . . . . . . . . . . . . . . . 14, 15, 16 Tice v. American Airlines, 162 F.3d 966 (7th Cir. 1999). . . . . . . . . . . . . . . 15 United States v. East Baton Rouge Parish School Board, 594 F.2d 56 (5th Cir. 1979) . . . . . . . . . . . . . . . 4 STATUTES AND RULES Title VII of the Civil Rights Act of 1964 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . passim Federal Rule of Appellate Procedure 28 . . . . . . . . . . . . 12 OTHER AUTHORITY Restatement (Second) of Judgments § 39 . . . . . . . . . . . . 16 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________ No. 03-10719 _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEMCO AEROPLEX, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Northern District of Alabama _______________________________________________ REPLY BRIEF _______________________________________________ INTRODUCTION EEOC alleges that Pemco Aeroplex violated Title VII by maintaining a racially hostile work environment potentially affecting all of the company's African-American employees. The district court granted summary judgment, holding that EEOC is precluded from litigating this enforcement action because a jury rejected the individual harassment claims of 22 Pemco employees in Thomas, et al. v. Pemco Aeroplex, No. 99-CV-3280-S (N.D. Ala.), a private suit that was tried separately from EEOC's action notwithstanding EEOC's repeated requests to have the cases consolidated. In our opening brief, we noted that, because EEOC was not a party to the Thomas litigation, it could be precluded by the judgment in that action only if EEOC was in privity with the Thomas plaintiffs. We argued that under prevailing law there is no basis for finding privity here. We also argued that, even if there were privity, preclusion would not be proper because the claims in the two suits are not the same. Finally, we argued that the logistical concerns raised by the district court are overstated and, in any event, cannot serve as a basis for binding the government to the judgment in a case in which it was not a party or in privity with a party. In its brief, Pemco argues strenuously that EEOC should not be permitted to continue to litigate this action in light of the jury verdicts in Thomas. Rather than address our arguments, however, Pemco relies largely on general arguments about the unfairness and inefficiency of permitting further litigation against the company on the issue of racial harassment after it prevailed in Thomas. The company has no response to our argument that there was no privity between EEOC and the Thomas plaintiffs under the prevailing legal standard, and, in the absence of privity, EEOC cannot be bound by the Thomas judgment, even if Pemco's complaints were well- founded. In any event, Pemco's arguments are based on a distorted characterization of the proceedings in Thomas and in this action, and completely overlook the fact that Pemco vigorously opposed EEOC's attempts to consolidate the two actions thereby avoiding the inefficiencies against which Pemco now rails. ARGUMENT 1. It is a fundamental principle, acknowledged by the district court and not disputed by Pemco, that a party may not be precluded from litigating a claim on the basis of a judgment in a previous action unless it was a party to that action or in privity with a party. In our opening brief, we argued that EEOC, which was not a party to the Thomas action, is not precluded from proceeding with this Title VII enforcement action by the judgment in Thomas because there is no basis for finding that EEOC was in privity with the Thomas plaintiffs. We noted first that courts including this one have uniformly held that federal enforcement agencies including EEOC are not bound by the judgment in a private suit they did not control, especially where, as here, the agency's allegations are broader than the allegations in the private suit. We explained that these decisions are largely based, explicitly or implicitly, on the lack of privity between the agency and the private litigants. Even where it seeks victim-specific relief, the agency litigates its own independent claim and has an interest in law enforcement that is not shared by the private litigants. See EEOC Brief at 18-23, citing, e.g., EEOC v. Waffle House, 534 U.S. 279 (2002); General Tel. Co v. EEOC, 446 U.S. 318 (1980); Herman v. South Carolina Nat'l Bank, 140 F.3d 1413 (11th Cir. 1998); United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56 (5th Cir. 1979); EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975); see also In re Bemis, 279 F.3d 419, 421-22 (7th Cir. 2002) ("EEOC's primary role is that of a law enforcement agency"). Pemco cites no contrary authority. Instead, the company characterizes the long line of precedent we rely on as "entirely distinguishable" because in those cases the parallel private litigation ended in a settlement or consent decree whereas here, the Thomas suit ended in a jury verdict. Based on this factual distinction and the lack of authority for its position, Pemco asserts that this case is "one of first impression." See Pemco Brief at 10. The company reasons that EEOC's separate enforcement action should not be precluded by a private settlement since, according to the company, settlements "only serve the private financial interest of that particular litigant" and raise concerns about potential "sweetheart" deals. A different rule should apply, however, in cases such as this one where the private litigants went to trial since, Pemco notes, jury trials serve the public interest. Accordingly, the company states, contrary to what it characterizes as our argument, "the ‘public interest' was [] served in Thomas" because the case was fully tried to and disposed of by a jury. Id. at 10-15 (emphasis added). There are several problems with this argument. First, the case is "one of first impression" only in that the decision below is not based on legal precedent. As our opening brief shows, there is ample authority for the contrary proposition that enforcement actions brought by EEOC and other federal enforcement agencies are not barred by judgments in parallel private litigation. See EEOC Brief at 18-23 (citing cases); see also Ameritech Benefit Plan Committee v. CWA, 220 F.3d 814, 821 (7th Cir. 2000) (judgment in parallel private action would not preclude EEOC enforcement action although rulings on issues of law may have stare decisis effect). Second, despite its assertion that the cases we cited can be distinguished on the ground that they involved a settlement or consent decree, Pemco points to nothing in those cases that suggests they would have come out differently had the private litigation gone to trial. Nor would such a distinction make sense. As noted above, the cases stand for the proposition that there is no privity between private litigants and federal enforcement agencies like EEOC because private litigants do not share the agencies' interest in law enforcement. Privity has to do with the nature of the relationship between parties to successive lawsuits. The basis for the judgment in the prior action whether it is based on a settlement, a jury verdict, or something else has no logical connection to privity. Rather than addressing privity, Pemco's argument actually goes to a different prerequisite for preclusion the need for a final judgment on the merits. See, e.g., Montana v. United States, 440 U.S. 147, 153 (1979). The company would have this Court hold that different preclusion principles apply to jury verdicts than to settlements. As our opening brief points out, however, both this Court and the Supreme Court have held that the preclusive effect of a judgment does not vary depending on whether it is based on a settlement as occurred in Huttig Sash & Door, 511 F.2d at 455, and Herman, 140 F.3d at 1417, for example or a judicial determination. EEOC Brief at 22 n.4 (citing Citibank v. Data Lease Fin. Corp., 904 F.2d 1498, 1501-02 (11th Cir. 1990); Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 327 (1955)). Thus, Pemco's attempt to distinguish the cases we cited fails. Third, we never argued that the "public interest was not served in Thomas," whatever that means. Rather, we argued that, as a federal enforcement agency, EEOC is not bound by judgments in private litigation it did not control and to which it was not a party. As for the public interest, we relied on the Supreme Court for the proposition that EEOC's suit is separate from the claims of private plaintiffs, that Title VII unambiguously authorizes EEOC to "determine when it is in the public interest to sue to vindicate federal law," and that "it is [EEOC's] province not that of the court" or the defendant "to determine whether public resources should be committed" to the recovery of relief for a particular claim of discrimination. EEOC Brief at 19-21 (citing General Telephone, 446 U.S. at 325-26, and quoting Waffle House, 534 U.S. at 291-92). Pemco asserts that dicta in Waffle House "debunk[s]" EEOC's "implication that it is settled law that it cannot be barred by res judicata from asserting claims," pointing to the statement 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." Pemco Brief at 14 n.7 (quoting 534 U.S. at 297). The quoted statement in Waffle House follows the Court's citation to appellate decisions holding that persons who had previously litigated, settled or otherwise resolved their private claims could not obtain individual relief in an EEOC enforcement action. Like Huttig Sash & Door, 511 F.2d at 454-55, the cases cited by the Court hold that an EEOC suit may proceed for injunctive relief and individual relief for persons who have not privately resolved their claims. Accordingly, the "open question" alluded to in Waffle House does not go to EEOC's authority to proceed with this action, but only to the relief that may be obtained. As we noted in our opening brief (EEOC Brief at 23 n.5), questions regarding the scope of relief available in this action need not be resolved on this appeal. In a separate but related point, Pemco argues, without reference to privity or other preclusion principles, that allowing EEOC to "relitigate issues thoroughly addressed and decided in Thomas would undermine the public's confidence in the finality of jury verdicts in civil litigation" and violate the Seventh Amendment. See Pemco Brief at 12; 29-31. Insofar as the company implies that the Seventh Amendment precludes relitigation of issues decided by a jury even without regard to privity, it is plainly wrong. The Seventh Amendment was designed to preserve the basic institution of the jury trial as it existed at common law. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333-37 (1979). At common law, as now, successive juries could decide even the same issue in suits involving separate parties. Cf. id. at 330 n.14 (citing example of mass tort defendant that litigates successive cases brought by different plaintiffs). Thus, what this Court described as the "fundamental premise of preclusion law" (In re Birmingham Reverse Discrim. Employment Litig., 833 F.2d 1492, 1498 (11th Cir. 1988)) that a judgment binds only parties and their privies applies equally to judgments based on jury verdict. See, e.g., Freeman v. Lester Coggins Trucking, 771 F.2d 860, 861-63 (5th Cir. 1985) (although plaintiff's own claim was barred, his claims in representative capacity for wife and children in wrongful death action were not precluded by jury finding of no negligence in prior suit against same defendants where plaintiff had sued individually for his own injuries from same accident); Humphreys v. Tann, 487 F.2d 666, 671 (6th Cir. 1973) (rejecting argument that concerns about "federal courts' crowded dockets" and "proper utilization of judicial time" obviated requirement for privity and holding that, despite consolidated discovery, one plane crash victim's estate was not bound by the jury verdict in an earlier suit brought by another victim's estate). See also Parklane Hosiery, 439 U.S. at 327 n.7 (noting constitutional basis for privity requirement). The fact that some Thomas plaintiffs went to trial, therefore, does not relieve Pemco of its obligation to establish that there was privity between EEOC and the Thomas plaintiffs. See In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (party asserting res judicata bears burden of showing preclusion was appropriate). To the extent the Seventh Amendment is implicated by this case, it is EEOC's right that is lost by the decision barring the agency from pursuing this enforcement action. Because the district court, at Pemco's urging, refused to consolidate this suit with Thomas for trial purposes, EEOC has had no opportunity to try its case to a jury in the first instance. 2. We noted in our opening brief that a non-party who had a "laboring oar," i.e., substantially controlled, the litigation of a lawsuit may be bound by the judgment in that suit even if its legal relationship with the parties to that suit would not otherwise establish privity. See EEOC Brief at 23-25 (citing Montana v. United States, 440 U.S. at 154-56). We also noted that, in the absence of actual control of the prior litigation, this Court requires, at a minimum, that there be "an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a suit raising identical issues." Id. at 27-29 (citing, e.g., Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir. 1978), cited with approval in Mann v. City of Albany, Ga., 883 F.2d 999, 1004 (11th Cir. 1989)). We argued that EEOC did not have a sufficient "laboring oar" in the Thomas litigation since it did not control the filing of that suit, discovery or any aspect of the trial and post-trial decision- making. Nor, we argued, was there an "express or implied legal relationship" between EEOC and the Thomas plaintiffs such that it can reasonably be said that they were proper agents for EEOC. See EEOC Brief at 23-29. In responding to this argument, Pemco does not contend that there was privity between EEOC and the Thomas under this Court's legal standard, which Pemco considers "rigid." Pemco Brief at 16. Rather, Pemco argues that a finding of privity is appropriate because, in its view, the Thomas plaintiffs "adequately represented the EEOC's interests" and EEOC "assisted" in the prosecution of the Thomas case. Id. at 18-23. As factual support, the company opines that counsel for the Thomas plaintiffs did a good job trying their case. The company adds, without citation to the record, that EEOC participated in 20 depositions; EEOC's suit was mediated together with Thomas; counsel for EEOC was "constantly present" at the Thomas trial and "constantly conferred" with counsel for Thomas both before and during the trial, and EEOC would use "the very same evidence" to prove its claim. See, e.g., id. at 18, 20-21; see also id. at 6-7. Pemco's version of the facts, even if true, would not suffice to support a finding of privity. As noted above, even if the issues in this case and Thomas were the same (which they are not), this Court requires, at a minimum, an "express or implied legal relationship by which parties to the first suit are accountable to non-parties who file a subsequent suit" (Pollard, 578 F.2d at 1008). Pemco does not contend that any such relationship existed between EEOC and the Thomas plaintiffs. EEOC participated in discovery because the court ordered "joint discovery" in the two cases. R.7 (order). EEOC participated in mediation because the two cases were mediated together; Pemco sought a "global resolution" and refused to mediate in Thomas unless EEOC also agreed to mediate the claims in its suit. R.20-21 (Transcript of 4/2/2002 Hearing on EEOC's motion to modify mediation order at 13- 15) (filed May 19, 2003). Nothing in the record indicates that EEOC attended every hearing in Thomas or was "constantly present" and "conferred constantly" with Thomas counsel during the trial. On the contrary, the only evidence is that an EEOC attorney was present for approximately half the trial, observing from the public seating area. R.53, Ex.A ¶¶ 5-6; accord R.60 (decision at 3) (EEOC counsel attended trial "with some frequency" as "an alert and interested observer"). Citing Thomas counsel's time sheets, Pemco argues that EEOC and counsel for Thomas were in contact 26 times, including four "strategy" sessions, while Thomas was pending (Pemco Brief at 6 & n.4, 21(citing R.51, Ex.A)). However, Pemco points to no authority suggesting that this is significant. On the contrary, courts have held that preclusion is inappropriate even where parties and non- parties share the same attorney. See, e.g., South Central Bell Tel. Co. v. Alabama, 526 U.S. 160, 168 (1999); Benson & Ford v. Wanda Petroleum Co., 833 F.2d 1172, 1174-75 (5th Cir. 1987). Here, some substantial interaction was to be expected since both EEOC and the Thomas plaintiffs had brought suit against Pemco for racial harassment, and the two suits were consolidated for discovery purposes. The time sheets list only one contact between EEOC and counsel for the Thomas plaintiffs after discovery in Thomas ended and the court denied the second consolidation motion – a 30-minute telephone conversation on March 25, 2002, regarding EEOC's motion to modify the order to mediate. See R.51 (Ex.A). Although Pemco suggests that this Court's standard is unnecessarily "rigid," it is in line with case law from the Supreme Court and other circuits. See, e.g., South Central Bell, 526 U.S. at 167-68 (preclusion is improper inter alia where original plaintiffs did not understand their suit to be on behalf of non- parties, judgment did not purport to bind non-parties and court in original suit made no special efforts to protect later plaintiffs' interests); Richards v. Jefferson County, Ala., 517 U.S. 793, 801- 02 (1996) (same); Tice v. American Airlines, 162 F.3d 966, 971 (7th Cir. 1999) ("general question" is "whether the earlier parties were in some sense proper agents for the later parties"). Ignoring South Central Bell, Pemco argues that Richards can be distinguished because, unlike EEOC, the plaintiffs in Richards were unaware of the earlier suit and counsel in the two cases never conferred. Pemco Brief at 23. The Alabama Supreme Court made similar distinctions in South Central Bell, reasoning that plaintiffs there, unlike those in Richards, not only knew about the earlier case but had agreed to stay their case pending the outcome in the earlier one, and one lawyer even represented plaintiffs in both cases. See 526 U.S. at 168. The Supreme Court found these distinctions unpersuasive, however, and held that the case was controlled by Richards. See id. The distinctions advanced by Pemco in this case are similarly unpersuasive. Although Pemco states that EEOC can be bound by the Thomas judgment if it "assisted in the prosecution" of that case (Pemco Brief at 17-18, 22 (citing Montana, 440 U.S. at 154)), the government can be bound only where it had a "laboring oar" in the earlier litigation. See Drummond v. United States, 324 U.S. 316, 318 (1945); cf. Lovejoy v. Murray, 70 U.S. 1, *18-*19, 3 Wall. 1 (1865) (persons not having the right to "adduce testimony, . . . cross-examine witnesses adduced on the other side" and "appeal from the judgment" are "strangers to the cause"); Restatement (Second) of Judgments § 39 & comment c (participation must be substantial). The Montana Court found a "sufficient ‘laboring oar'" where the government required the private complaint to be filed, reviewed and approved the complaint, paid the attorneys fees and costs in the private suit, directed the appeal, appeared and submitted an amicus brief, and directed the filing and abandonment of an appeal to the Supreme Court. Montana, 440 U.S. at 155; see also id. at 154 (citing cases). Even if something less than such complete manipulation would suffice, the alleged facts here do not support preclusion under this theory. Pemco itself describes EEOC as "rid[ing] the coattails of the Thomas plaintiffs" with respect to discovery. Pemco Brief at 6; see also R.53 (Ex.A ¶¶ 2-4)(counsel for Pemco and the Thomas plaintiffs typically negotiated discovery schedules and other such matters without consulting EEOC). More importantly, because the district court, at Pemco's urging, denied EEOC's motions to consolidate for trial, EEOC did not have the right to adduce testimony, to cross-examine witnesses called by Pemco or to appeal the judgment. In short, Pemco's brief provides no basis for finding that EEOC was in privity with the Thomas plaintiffs such that EEOC may properly be bound by the judgment in that case. Since privity is necessary for both res judicata and collateral estoppel, the judgment must be reversed. 3. Because there was no privity between EEOC and the Thomas plaintiffs, EEOC would not be precluded from proceeding with this action even if the claims were the same as the claims in Thomas. However, as we argued in our opening brief, the fact that the claims in this suit are different from and substantially broader than – the claims litigated in Thomas provides an additional reason why the suit is not precluded. EEOC Brief at 34-37. Without squarely addressing the arguments in our brief, Pemco repeatedly asserts throughout its brief that the Thomas jury already determined precisely the same issue that is central to EEOC's case, and, if this case goes to trial, EEOC will use exactly the same evidence to prove its case as was proffered by the Thomas plaintiffs. See, e.g., Pemco Brief at 5, 8, 11-13, 18-40. These assertions are directly contrary to the position Pemco took in the district court in opposing EEOC's efforts to have its case consolidated with Thomas. Ironically, Pemco's statements in the district court provide a succinct response to the position it now advocates. In opposing EEOC's second motion to consolidate, Pemco argued that the claims in this case and in Thomas are not the same, stating: The claims [in the two cases] are not the same and the evidence is not the same. . . . The [Thomas] case consists of thirty-one (31) individual cases filed together. Each of the 31 Plaintiff's cases . . . must stand on its own merits. EEOC's case is obviously much broader in that it does not allege that any particular employee has been subjected to a hostile environment. Instead, it alleges class-wide discrimination and opens the door to evidence that would be potentially wholly inadmissible in the [Thomas] case. R.16 (Opposition to 2d Consolidation Motion ("2d Opp.") at 3-4). For similar reasons, the company's repeated assertion that EEOC will rely on the same evidence as was proffered in Thomas is also disingenuous. In opposing consolidation, Pemco stated that because "EEOC's case is obviously much broader," counsel for EEOC and the Thomas plaintiffs would likely rely on different evidence, reasoning: [E]vidence that an employee that is not a [Thomas plaintiff] had a slur directed against him or her would be admissible in the instant action but likely would not be admissible in [Thomas] unless a [Thomas] plaintiff worked alongside that employee and overheard the comment. Proof that others have experienced objectionable conduct is the heart of [EEOC's] case whereas it could be totally irrelevant (not to mention objectionable and prejudicial) in [Thomas]. R.16 (2d Opp. 3). Without acknowledging the inconsistency between its present position and the position it took with respect to consolidation, Pemco stresses that EEOC's second consolidation motion states that the same witnesses and documentation would be relevant in both cases. See, e.g., Pemco Brief at 5. That is true. Since this suit was filed after Thomas, EEOC, in order to avoid delaying the proceedings, offered to forego further discovery and rely on existing evidence if the court would agree to try its case and Thomas together. See R.15 (EEOC's 2d Consolidation Motion at 6). Once consolidation was denied, however, both EEOC and Pemco resumed discovery in this case. See, e.g., R.52 (order extending discovery until 12/31/02); R.16 (2d Opp. at 2-3) (opposing consolidation on ground that Pemco could not try EEOC's case without additional discovery). The idea that EEOC would still restrict itself to the evidence presented at the Thomas trial is wishful thinking on the company's part. Pemco's assertion that the jury verdicts in Thomas resolved the same issue presented in this case is erroneous. The central issue in this suit is whether the company maintained a racially hostile work environment affecting African-American employees throughout the 1990s. See, e.g., EEOC Brief at 36-37. In contrast, the Thomas jury presumably with Pemco's blessing was asked to and did determine only whether each of the 22 Thomas plaintiffs who went to trial was subjected to a hostile or abusive work environment because of race (EEOC's Motion for Judicial Notice, Ex.B (6/26-28/2002 Trial Transcript at 19, 39-43). Furthermore, although testimony about earlier events was admitted as "background evidence," the jury was instructed that liability could be based only on incidents that occurred after December 8, 1997 (Trial Transcript at 19). A jury in EEOC's case need not and would not be asked to decide that narrow question. Pemco's stated concern that allowing EEOC's enforcement action to proceed would undermine public confidence in jury verdicts is, therefore, unfounded. See Pemco Brief at 12. That would happen only if the public was misinformed about what the Thomas jury actually found. 4. Pemco's remaining arguments are unavailing. In a variant of its "same claim" argument, the company argues, without citation to the record or relevant case law, that EEOC is collaterally estopped from showing the existence of a racially hostile work environment throughout the 1990s, because the Thomas jury found that no such environment existed. Pemco Brief at 33-37. As our opening brief pointed out (EEOC Brief at 31-32), collateral estoppel applies only to facts or issues that were actually decided and necessary to the judgment in that case, and the party to be estopped must also have had a full and fair opportunity to litigate its claim. See, e.g., Montana, 400 U.S. at 153-54. These elements are not present here. First, as noted above, because EEOC was not a party or privy in the Thomas suit, it clearly did not have a full and fair opportunity to litigate its claim and, so, cannot be precluded from proceeding with its claims. Furthermore, the Thomas jury was not asked to and did not "actually decide" whether a hostile work environment existed at Pemco even during the limited time frame it was allowed to consider. Trial Transcript at 39-43. A similar flaw undermines the company's argument that, even if the jury decided only that the 22 Thomas plaintiffs were not subjected to a hostile or abusive work environment based on race, EEOC is nevertheless bound by that finding and, given the finding, will be unable to prove that a violation occurred. Pemco Brief at 25-28. Because EEOC was not in privity with the Thomas plaintiffs, EEOC may proceed with its case even if a verdict in its favor would be factually inconsistent with the Thomas verdicts. Furthermore, because the Thomas jury was permitted to base its liability findings on incidents occurring during only a fragment of the time period covered in EEOC's suit, it is neither "illogical" nor "nonsensical" (id. at 26) to think that a jury could find that none of those 22 plaintiffs was subjected to a hostile work environment during that brief time frame and still find that a racially hostile work environment existed throughout the 1990s. Finally, Pemco chastises EEOC for failing to inform the Court that, the company asserts, there are "over 100" declarations from African-American employees at Pemco, "wherein those employees declared they had not been subjected to a hostile work environment." Pemco Brief at 32. The lack of any citation for these alleged declarations is no mere oversight. If they exist, these declarations are not in the record in this case and, despite the obvious concerns about employer coercion, Pemco does not suggest that EEOC (or even Thomas) attorneys were present when (and if) they were obtained. Cf. EEOC v. Mitsubishi Motor Mfg. of America, 960 F. Supp. 164, 167 (N.D. Ill. 1997) (noting that, since EEOC has "a legitimate interest in communicating legal advice and information" to persons covered by its suits, employer may discuss past acts of sexual harassment with potential claimants only in depositions, with counsel present). In any event, any such declarations would, at most, be evidence to put to the jury; they would not support a summary judgment on the merits, let alone a dismissal on preclusion grounds. Cf. EEOC v. Hernando Bank, 724 F.2d 1188, 1196 (5th Cir. 1984) (discussing such affidavits in EEOC suit under Equal Pay Act); EEOC v. Johnson & Higgins, 91 F.3d 1529, 1535-36 (2d Cir. 1996) (EEOC's ADEA enforcement action on behalf of past, current and future directors may proceed even though every former director signed affidavit waiving private right to sue under ADEA). And even assuming Pemco, as it asserts, persuaded 100 of its African-American employees, outside the presence of counsel, to disavow any interest in "hav[ing] a day in court" for alleged discrimination, it is undisputed that there are still at least 64 other employees (see Pemco Brief at 4-5) more than enough to warrant EEOC's proceeding with its suit who are covered by EEOC's suit but were not parties to Thomas and apparently are interested in "hav[ing] a day in court." 5. Pemco argues that judicial economy would be served by affirmance of the district court's decision. Pemco Brief at 38-40. This statement is true only if considerations of fairness are put to one side. A court faced with two suits by unrelated parties raising similar claims would expend fewer judicial resources by permitting the smaller suit to proceed and then barring the larger on preclusion grounds. Fundamental fairness does not permit that approach, however, unless the standards governing res judicata and/or collateral estoppel have been met. See, e.g., Parklane Hosiery, 439 U.S. at 327 n.7. Here, they have not. As we suggested in our opening brief, whatever wounds the company would suffer if this enforcement action is permitted to proceed are, in essence, self-inflicted. If the company had wanted to avoid a second trial, it should have gone along with EEOC's repeated efforts to try this case in tandem with Thomas. Having persuaded the district court that the cases were too different to be tried together, Pemco cannot now claim that EEOC's enforcement action is barred because the cases are too similar to be tried separately. CONCLUSION For the foregoing reasons, the Commission asks this Court to reverse the judgment and remand the case to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Courier New (monospaced) typeface, 12-point font, and contains 6038 words, from the Introduction through the Conclusion, as determined by the Word Perfect 9 word counting program. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing Reply Brief of the Equal Employment Opportunity Commission was sent this 4th day of September, 2003, by express mail, postage prepaid, to: Stephen E. Brown Jeffrey A. Lee MAYNARD, COOPER & GALE PC AmSouth Harbert Plaza, Suite 2400 1901 Sixth Avenue, North Birmingham, AL 35203-2618 _____________________________ Barbara L. Sloan