Case No. 02-2057 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and JAMES M. FERGUSON, Intervening Plaintiff-Appellee, v. PIPEFITTERS ASSOCIATION LOCAL UNION 597, Defendant-Appellant. ________________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Case Nos. 98 C 1601 and 98 C 3217 The Honorable David H. Coar _________________________________________________________ PETITION OF PLAINTIFF-APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING OR REHEARING EN BANC _________________________________________________________ ERIC S. DREIBAND General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 JOSEPH A. SEINER (202) 663-4772 Attorney TABLE OF CONTENTS Page TABLE OF CONTENTS......................................... i TABLE OF AUTHORITIES ............................... ii RULE 35(b) STATEMENT..................... 1 BACKGROUND........................................ 1 PANEL DECISION........................... 3 ARGUMENT.................................. 5 THE MAJORITY'S DECISION IMPROPERLY ALLOWS UNIONS THAT MAINTAIN AND EXERT CONTROL OVER THE WORKPLACE TO AVOID RESPONSIBILITY UNDER TITLE VII FOR REMEDYING A HOSTILE WORK ENVIRONMENT..................... 5 1. The Panel Majority Erred in Holding that Title VII Allows a Labor Union Intentionally to Acquiesce in an Employer's Hostile Work Environment.............................. 5 2. The Panel Majority Erred in Holding that Pipefitters did not treat Workplace Problems Differently on the Basis of Race........................... 13 CONCLUSION.................................... 15 CERTIFICATE OF SERVICE ADDENDUM: PANEL DECISION TABLE OF AUTHORITIES FEDERAL CASES Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir. 1985) . . . . . . . . . . . . . . . . . . . 8 Berry v. Delta Airlines, 260 F.3d 803 (7th Cir. 2001) . . . . . . . . . . . . . . . . . .6, 7 Dowd v. United Steelworkers of Am., 253 F.3d 1093 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . 7 EEOC v. Pipefitters Ass'n Local Union 597, 334 F.3d 656 (7th Cir. July 1, 2003) . . . . . . . . . . . . .passim Farmer v. ARA Serv., 660 F.2d 1096 (6th Cir. 1981) . . . . . . . . . . . . . . . . . . . 9 Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) . . . . . . . . . . . . . . . . . . . . . . . .13 Hellums v. Quaker Oats Co., 760 F.2d 202 (8th Cir. 1985) . . . . . . . . . . . . . . . . . . .12 Hirras v. Natl R.R. Passenger Corp., 95 F.3d 396 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . .10 Howard v. Int'l Molders Union, 779 F.2d 1546 (11th Cir. 1986) . . . . . . . . . . . . . . . . .4, 8 Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . 8 Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . 6 Patterson v. Am. Brands, Inc., 535 F.2d 257 (4th Cir. 1976) . . . . . . . . . . . . . . . . . . . 8 Romero v. Union Pacific R.R., 615 F.2d 1303 (10th Cir. 1980) . . . . . . . . . . . . . . . . . . 8 Salvadori v. Franklin Sch. Dist., 293 F.3d 989 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . .13 Sullivan v. Stroop, 496 U.S. 478 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 7 Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002) . . . . . . . . . . . . . . . . . . .11 Vore v. Ind. Bell, 32 F.3d 1161 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . 6 Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir. 1991) . . . . . . . . . . . . . . . . . .4, 8 FEDERAL STATUTES AND REGULATIONS 42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. § 2000e-2(c) . . . . . . . . . . . . . . . . . . . . . . . . . 6 29 C.F.R. § 1604.11(e). . . . . . . . . . . . . . . . . . . .6 EEOC ENFORCEMENT GUIDANCE EEOC, Enforcement Guidance: Vicarious Employer Liability, No. 915.002 at 29-30 (June 18, 1999). . . . . . . . . . . . . . . . 9 RULE 35(b) STATEMENT This case presents an issue of exceptional importance: Should an employer bear the sole responsibility for remedying a racially hostile work environment caused in part by union members where the union knows about the harassment, maintains and exerts control over the workplace, has the ability to remedy the situation, proactively addresses other workplace problems, and declines to remedy racial harassment in the absence of a complaint? A divided panel of this Court answered this question in the affirmative thereby rejecting the approach of at least two other appellate courts. The majority's opinion would hold only an employer and not the union liable for a hostile environment, regardless of how reprehensible the union's conduct was or how much control the union had over the workplace. The majority's approach allows the union to do nothing despite its knowledge of the hostile environment and ability to correct the situation. Judge Rovner's dissent recognized the error of this approach, noting that "[c]onfining liability to the company [in harassment cases] has the appeal of simplicity, but it may not always comport with reality." EEOC v. Pipefitters Ass'n Local Union 597, 334 F.3d 656, 663 (7th Cir. July 1, 2003). The issue of union liability has divided the circuits and fundamentally affects the course of Title VII enforcement. It should therefore be reheard by this panel or by this Court en banc. BACKGROUND In 1998 the Commission sued Pipefitters Local Union 597 (Union or Pipefitters), alleging that it discriminated against its African-American members because of their race by maintaining a racially hostile and offensive work environment at a recycling plant project. Id. at 658. The harassment included graffiti scrawled on the inside of portable toilets used by African-American Union members, with phrases such as "death to all niggers," "your grandmother is such a slut she even fucks niggers," "Fergie [James Ferguson] if you don't want to be treated like a nigger, don't act like one," "The shines are ruining this country," and "Fuck Niggers." Id. In addition, a swastika was placed in an African-American pipefitter's toolbox, a KKK poster was hung in a trailer used by African-American pipefitters, and a hangman's noose was displayed at the site. Id. Although the Union vigorously and unsuccessfully argued the point in the district court, on appeal the Union no longer disputes that all of these incidents created a racially hostile work environment. Further, the majority recognizes that the existence of a hostile work environment "is not in doubt." Id. Dennis Hahney, a Union steward and company superintendent, was aware of the racial graffiti but did nothing to remedy the situation for several months, until one of the pipefitters complained. Id. Hahney hired pipefitters for the project, selected foremen and the chain of command beneath him, determined which pipefitters would be laid off in response to workforce reductions, set forth work assignments to be completed by pipefitters, and "strove to maintain ‘some sort of semblance of peace'" among Union members. Id. at 663-664 (Rovner, J., dissenting). Hahney also testified that he would have remedied a safety problem in the absence of a complaint and would have made sure that the portable toilets were cleaned if necessary. Id. Hahney's role was thus to assure that things "ran smoothly between the company and the pipefitters" and that no Union members were "hassled." Id. The Union's business agent, Steve Toth, was also aware of the graffiti, but did nothing to remedy the problem. Id. at 658. Like Hahney, Toth would remedy workplace problems in the absence of a complaint. Specifically, Toth noticed sexual graffiti in a portable toilet that he thought could be considered "a little offensive," and independently took the initiative to have this graffiti removed. Id. at 664 (Rovner, J., dissenting). Toth also ordered the Union steward to remove racial graffiti in one of the portable toilets when an African-American pipefitter complained. Id. Despite his position of power at the Union, knowledge of the racially hostile environment, and his ability and efforts to control the workplace, Toth did nothing to remedy the environment in the absence of a complaint. Id. at 658. After a bench trial, the district court (Coar, J.) held that through its knowledge and inaction, Pipefitters acquiesced in the creation of a hostile work environment, and violated its duty to address workplace problems in a non-discriminatory manner. Id. Pipefitters appealed to this Court. PANEL DECISION A divided panel of this Court reversed the district court's judgment. First, the panel majority held that a union is not liable for failing to remedy a hostile work environment it knows of even where, as in this case, the Union steward was also a supervisory employee of the company. Id. at 658-661. The majority noted that because "the employer is both fully liable for failing to take effective measures against coworker harassment and far better positioned to apply such measures," nothing is to be gained from imposing union liability except "litigation clutter." Id. at 659. The majority also found that section 703(c) of Title VII, which makes it illegal for a union to exclude or expel "from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin," (emphasis added), does not support the Commission's legal theory that a union can be held liable for acquiescing in a racially hostile environment when the union exerts control over the workplace. Id. Rather, the majority maintained that this provision prohibits a union from discriminating only in performing its agency functions. Id. The majority did not "understand how [union] passivity, though it means the union will not take measures to prevent racial harassment on its own initiative, could be thought a form of racial discrimination." Id. at 660. The majority acknowledged that there is some authority to the contrary from other appellate courts. Id. (citing Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir. 1991) and Howard v. Int'l Molders Union, 779 F.2d 1546 (11th Cir. 1986)). The majority further rejected the district court's alternate holding that the Union is liable because it had a practice of remedying workplace problems generally without a complaint (including acting to prevent a sexually hostile work environment), but failed to respond to the racial graffiti of which it had knowledge. Id. at 661-63. The majority held that the evidence of the Union's response to other problems was insufficient to support the district court's conclusion that the Union had "a policy of subordinating racial to other workplace problems." Id. at 662. The Court thus reversed the decision of the district court. Id. at 663. In her dissent, Judge Rovner argued that a union should be held liable for a hostile work environment when, as here, it has control of the workplace and an ability to take remedial action. Id. at 663-65. Thus, "[w]here the facts reveal that, in practice, the Union enjoys significant control over working conditions and has the power to correct workplace inequities, it is appropriate to hold it liable for failing to do so on the same basis as the employer." Id. at 663. It is therefore important not to "close our eyes to the realities of the workplace, particularly in view of the broad remedial purposes of Title VII and section 1981." Id. Judge Rovner further maintained that it is a "fair inference" that the Union had the ability to remedy the racial graffiti but "intentionally acquiesced in the harassment rather than exercising its authority." Id. at 664. Deferring to the district court in this regard, Judge Rovner saw "no clear error in [the court's] assessment" of intentional Union acquiescence. Id. Finally, Judge Rovner asserted that the Union should not avoid liability simply because the Union steward was also a supervisory employee of the company. Id. at 664-665. The Union "voluntarily crossed the boundary separating the company's domain from the union's . . . [and the] union was not free to turn a blind eye to the racial graffiti that was staring its officials in the face." Id. at 665. ARGUMENT THE MAJORITY'S DECISION IMPROPERLY ALLOWS UNIONS THAT MAINTAIN AND EXERT CONTROL OVER THE WORKPLACE TO AVOID RESPONSIBILITY UNDER TITLE VII FOR REMEDYING A HOSTILE ENVIRONMENT In allowing unions to avoid responsibility for remedying a hostile work environment under Title VII, the majority erred in two distinct respects: first, by holding that a union is not liable for intentionally acquiescing in the discriminatory environment created by an employer, and second, by holding that the Union in this particular case had not treated workplace problems differently on the basis of race. 1. The Panel Majority Erred in Holding that Title VII Allows a Labor Union to Intentionally Acquiesce in an Employer's Hostile Work Environment. This case, as Judge Rovner recognized in her dissent, addresses whether a Union that "in fact did have control over significant aspects of the [recycling project], including the ability to address precisely the type of discrimination at issue here," should be held liable for a concededly racially hostile environment where the Union turned "a blind eye to the racial graffiti that was staring its officials in the face." 334 F.3d at 663, 665. In EEOC's view the answer is clearly yes, as Title VII prohibits all forms of discrimination by a union including intentional acquiescence in a hostile environment. The defect of the majority's approach is that it requires employers to bear the sole responsibility for remedying a hostile work environment, regardless of the union's role at the worksite. Title VII specifically addresses the responsibilities of labor unions. Section 703(c) provides that: It shall be an unlawful employment practice for a labor organization– (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin . . . . 42 U.S.C. § 2000e-2(c) (emphasis added). The phrase "or otherwise to discriminate against" in the statute mirrors the provision for employers in section 703(a) of Title VII, which makes it illegal for employers (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . . 42 U.S.C. § 2000e-2(a)(1) (emphasis added). As the majority acknowledges, the language "otherwise to discriminate" under section 703(a)(1) includes not permitting a hostile work environment. 334 F.3d at 659; see also Vore v. Ind. Bell, 32 F.3d 1161, 1163-64 (7th Cir. 1994) ("Title VII provides redress to employees subject to a hostile work environment as the result of racial harassment of fellow employees"). An employer who knows or should have known about a racially hostile work environment must take prompt and appropriate remedial action to cure the harm and to prevent further harassment. See Berry v. Delta Airlines, 260 F.3d 803, 810 (7th Cir. 2001). Significantly, an employer may be responsible for the hostile environment even if it is caused by non-employees over which the employer has no direct control, so long as there are reasonable steps the employer can take to prevent the harassment. See, e.g., 29 C.F.R. § 1604.11(e); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-74 (10th Cir. 1998); cf. Berry, 260 F.3d at 811-12 (discussing employer liability theory for non-employees). Because section 703(c)(1) contains the identical language found in section 703(a)(1), it must also be construed as not permitting a hostile work environment of which the Union knew or should have known. See Sullivan v. Stroop, 496 U.S. 478, 484-85 (1990) ("the normal rule of statutory construction [is] that identical words used in different parts of the same act are intended to have the same meaning.") (internal quotations omitted). Thus, despite the majority's belief that "inaction. . . is not discrimination in any accepted sense of the term," 334 F.3d at 660, it is well settled that an employer's inaction in the face of a known hostile work environment is discrimination within the meaning of Title VII. See Berry, 260 F.3d at 810 (employer can be liable where knows of harassment and fails to act). The majority disparaged the Commission's textualist approach to statutory construction as "being as formalistic as any court," 334 F.3d at 659, but in its place the majority constructed an equally formalistic separation between the roles of an employer and a union in the workplace. The majority limited Title VII's nondiscrimination duties on unions to discrimination involving purely union matters (e.g. in refusing to accept African-Americans as union members or in refusing to process their grievances). Id. There is simply nothing in Title VII to suggest that the anti-discrimination provisions should be limited in this artificial fashion. Rather, the similarity in the statutory language between the employer and union liability provisions suggests that Congress intended unions to have the same legal responsibilities as employers when the unions are aware of the hostile work environment. See Dowd v. United Steelworkers of Am., 253 F.3d 1093, 1102 (8th Cir. 2001) (noting that under section 703(c), "the plain language of the statute suggests that unions may be liable for any discrimination, including a claim of hostile work environment"); Woods, 925 F.2d at 1200 (9th Cir. 1991) ("Title VII and Section 1981 prohibit discrimination by unions to the same extent they prohibit discrimination by employers") (citation and quotation omitted). As properly found by the district court, the Union had actual knowledge of the overtly hostile working environment here, shared control of the workplace with the employer, and actually exerted control over the workplace. Yet, the Union failed to take any corrective measures. Neither the Union nor the majority suggested on appeal that these factual findings are clearly erroneous; they plainly are not. The Union should therefore be held liable under Title VII for its failure to act. As the majority acknowledges, 334 F.3d at 660, other appellate courts have followed the approach urged by the Commission in this case, and held that a union's acquiescence in the face of a hostile work environment violates Title VII. See Howard, 779 F.2d at 1553 (unions were liable to minority employees under Title VII for failing to use "all reasonable effort to cause the employer" to cease using racially discriminatory nonvalidated tests for promotion); Woods, 925 F.2d at 1200 ("The union has an affirmative obligation to oppose employment discrimination against its members. If instead it acquiesced or joined in the Company's discrimination practices, it too is liable to the injured employees."); Romero v. Union Pac. R.R., 615 F.2d 1303, 1310-11 (10th Cir. 1980) ("A union cannot acquiesce in a company's prohibited employment discrimination and expect to evade Title VII liability for such discrimination."); see also Babrocky v. Jewel Food Co., 773 F.2d 857, 868 (7th Cir. 1985) ("[A] union may be liable for not protesting vigorously enough an employer's discriminatory practices."); Johnson v. Palma, 931 F.2d 203, 208 (2d Cir. 1991) (holding that union violates Title VII when it "acquiesces in a company policy that abridges the statutory rights of the plaintiff"); Patterson v. Am. Brands, Inc., 535 F.2d 257, 270 (4th Cir. 1976) (local union which "acquiesced without protest" in company's lines of progression which perpetuated effects of discrimination was properly held liable); Farmer v. ARA Serv., 660 F.2d 1096, 1104 (6th Cir. 1981) ("A labor organization can be held jointly and severally liable under Title VII for acquiescing in the discriminatory practices of the employer"). Despite the strong support for the Commission's position in other circuits, the majority asserts that this approach fails because of "practical considerations." Specifically, the majority maintains that holding a union responsible for remedying a hostile work environment is unrealistic because (1) the "employer is in a better position than the union to prevent or eliminate harassment because it can discipline its employees," (2) if the union receives a complaint of harassment, all it can do is file a grievance on the worker's behalf, (3) a union cannot control workers belonging to other unions, and (4) the union would be forced to "take sides" in disciplinary proceedings against its members. 334 F.3d at 659, 661. The concern over these "practical considerations" all stem from the majority's faulty premise that the only appropriate remedial response to a hostile environment is to discipline the harassers. While punishing harassers certainly may be one way to remedy and prevent a hostile work environment, it is not the only method. Particularly where their investigations fail to identify the perpetrators, employers (and unions) must take whatever other reasonable steps they can to minimize the hostile environment caused by the harassment and to prevent further acts. Both the employer and Union in this case, for example, would have been able to remove the graffiti, monitor the workplace, or offer training none of which involve direct control over the disciplinary process of workers, but all of which would help to remedy and prevent harassment of the African-American pipefitters. See, e.g., EEOC, Enforcement Guidance: Vicarious Employer Liability, No. 915.002 at 29-30 (June 18, 1999) (listing both disciplinary and non- disciplinary methods for employers to correct and eliminate the effects of harassment). Of course, while the same legal standard applies to employers and unions (i.e., knowledge of the environment but failure to take appropriate remedial action), their practical responsibilities often are not perfectly symmetric. What constitutes "appropriate remedial action" for a union facing a hostile environment may be far different from what would be required of an employer in the same situation. In this case, for example, it was reasonable to expect the Union to have the graffiti painted over, a response the Union undertook on other occasions. In other hypothetical cases suggested by the majority where the union does not enjoy the significant degree of control present in this case, it might be reasonable to expect the union only to notify the employer of the problem, so that the employer can take corrective action. An appropriate remedial action will never entail anything unreasonably burdensome or beyond the union's power. Thus, an appropriate response by the union will vary based on the circumstances of the individual case and the realities of the particular workplace. This is equally true of the response required by an employer. See, e.g., Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399-400 (5th Cir. 1996) ("Whether an employer's response to discriminatory conduct is sufficient will necessarily depend on the particular facts of the case the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.") (internal quotation and citation omitted). As Judge Rovner set forth in her dissent, the Union in this case had significant control and the ability to remedy the harassment without taking any disciplinary action against the harassers. 334 F.3d at 663-64. The Union business agent, who was clearly acting on the Union's behalf, had knowledge of the racial graffiti and the ability to have it removed he ordered racial graffiti removed on one occasion, and had sexual graffiti "dealt with" on another. Id. at 664. And the Union steward "expressed no reservation about taking independent action to correct a workplace safety problem or to clean up a dirty toilet." Id. Indeed, Judge Rovner correctly recognized that "[t]he evidence does not bespeak a perception by union officials that they were powerless to act." Id. Certainly, it is at least a "fair inference" from these facts that the Union "had the power to deal with the racially-charged graffiti defacing the toilets, but intentionally acquiesced in the harassment rather than exercising its authority to remove the graffiti." Id. It is incorrect to suggest that the Union's only possible response to the discriminatory work environment would have been to file a grievance with the employer; the Union could and in two circumstances did remove hostile graffiti. The majority's belief that the Union did not have a significant level of control is therefore belied by the evidence. Here, the Union was in at least as good a position as the employer to address the hostile environment at the work site, but simply chose not to act. Because an appropriate remedial response by the Union would have been non- disciplinary, this case does not implicate the majority's concern about "the awkwardness of asking the union to take sides in a dispute between two employees both of whom it has a statutory duty to represent fairly in any disciplinary proceeding by the employer." Id. at 661. But even if this case did involve proceedings against the harassers, unions are frequently placed in the position of having to represent adequately the interests of conflicting members as is done when one member files a grievance against another member on any issue, including discrimination. See Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir. 2002) (when a company "investigates a sexual harassment claim by one union member against another, the union has a statutory duty to fairly represent both in their disciplinary dealings with the employer"); Hellums v. Quaker Oats Co., 760 F.2d 202, 205 (8th Cir. 1985) (where altercation between union members presented "conflicting claims" by "different union members," union properly "submit[ted] each of the grievances in a neutral fashion, permit[ted] the parties to present their own stories at the arbitration hearing, and [left] it to the arbitrator to make the necessary credibility determinations"). As Judge Rovner correctly points out, "[w]e need not wring our hands in worry" over this concern as unions "are called upon routinely to navigate a thorny path between the clashing interests of their members." Id. at 665. Holding unions to the same standard of responsibility as employers when, as in this case, unions exert actual control over the workplace, ensures that whoever is in the best position to remedy a hostile work environment will take appropriate action. The majority asks what is to be gained other than "litigation clutter" from this approach. Id. at 659. The answer is that it provides an additional watchful eye to assure that discrimination in the workplace is quickly eliminated. In imposing this responsibility on unions when it enacted Title VII, Congress likely recognized the realities of the workplace and the fact that unions, like employers, are often in a position to take remedial action to remedy discrimination. The majority's approach holding employers solely responsible for remedying workplace harassment certainly "has the appeal of simplicity, but it may not always comport with reality." Id. at 663. Such an approach will enable unions generally, like the Union in this case, to "turn a blind eye to the racial graffiti that was staring its officials in the face," thereby forcing employers to take the necessary remedial action, even where they are not in the best position to do so. Id. at 665. 2. The Panel Majority Erred in Holding that Pipefitters did not treat Workplace Problems Differently on the Basis of Race. The majority further erred in holding that Pipefitters did not violate Title VII because there was insufficient evidence to demonstrate that it treated workplace problems differently on the basis of race. As the Supreme Court recognized (and the majority acknowledges), Title VII prohibits unions from "discriminat[ing] on the basis of race by the way in which they represent[]" their members in the workplace. Goodman v. Lukens Steel Co., 482 U.S. 656, 667- 669 (1987); 334 F.3d at 661. The Union further concedes that Goodman represents a duty "not to discriminate on the basis of race in dealing with their members' workplace problems." (Defendant's Brief at 28, 32-33). Under Title VII and Goodman, then, a Union cannot have a practice of remedying workplace problems generally, but choose not to address racial issues that adversely affect union members. See, e.g., Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 998 (7th Cir. 2002) ("[a] union may not refuse to file race-based, disparate-treatment grievances solely because the union looks with disfavor on those types of claims or because they would be troublesome to process"). As its alternate holding, the district court below found that Pipefitters had violated its Title VII duties with respect to Goodman, and had failed promptly and effectively to address racial problems of which it was aware, while remedying other workplace problems. To be sure, the district court's conclusion that "it was the practice of Local 597 to deal with members' problems in the work place in the absence of a grievance" but that the Union "failed to take effective action to report or remedy the racially hostile work environment existing at the Robbins site" is compelled by the evidence in the record. (Def. App. at 23-24 ¶¶ 18, 22 (district court decision)). At a minimum, this factual finding is not clearly erroneous. In support of the district court's finding, the evidence at trial showed that: The Union business agent independently observed sexual graffiti in one of the portable toilets, and ordered that it be removed because it might be considered "a little offensive." 334 F.3d at 658. The Union steward indicated that if he recognized a condition that threatened the safety of other union members, he would have independently taken steps to remedy the problem. If the Union steward became aware that the restrooms were dirty, he would have acted on his own initiative to have them cleaned. Id. The Union steward sometimes acted on his own initiative when he saw something negatively affecting Union members, and made sure that no one was "hassled." Id. at 663-64 (Rovner, J., dissenting); (Def. App. at 13 ¶ 61 (district court decision)). The Union business agent's responsibilities included handling any problems that would arise at the Robbins project, and he walked around the project on approximately 20 to 30 different occasions, making sure that "everything was going all right." (Trial transcript at 505-06, 549, 568). In response to these many examples of the Union affirmatively remedying workplace problems in the absence of a complaint, the Union could point to no evidence of even a single incident where the Union had knowledge of a workplace problem but did nothing to correct it. In fact, the evidence reveals only one such instance: the Union's failure to remedy the racially hostile working environment at the Robbins project. The majority opinion maintains that the evidence at trial was "insolubly ambiguous" that the independent actions taken by the Union's business agent and steward are insufficient to establish Title VII liability. Id. at 662. But the district court heard all of the evidence, including references to Union steward Hahney's anomalous dual role, and concluded that the Union had a practice of subordinating racial problems to other workplace issues. There is sufficient evidence in the record to support this finding, which cannot be considered clear error. As Judge Rovner pointed out, the Union business agent's initiative of removing the sexual graffiti "coupled with Hahney's testimony . . . at least belies the notion that the union lacked the power to address the graffiti that defaced the toilet walls." Id. at 665. Moreover, as Judge Rovner emphasized, it was the Union that placed the steward in his unusual role as both a Union and company official, and the Union should not be able to escape liability by claiming that the responsibility for his actions is "fogged." Id. When viewed in the aggregate, the many instances of the Union's resolving a workplace problem without a complaint support the district court's finding that it was the Union's practice to do so: the Union took immediate action when it became aware of sexual graffiti in the port-a-johns, independently resolved safety issues, maintained the cleanliness of the restrooms, made certain that no Union members were "hassled," and made sure that "everything was going all right" with Union members on a regular basis. However, despite knowledge by the Union steward and Union business agent that there was racially hostile graffiti in the port-a-johns and a racially hostile environment at the Robbins project, the Union took no action for almost nine months. This conduct runs afoul of the Union's obligations under Title VII, and the district court's findings are not clearly erroneous. CONCLUSION The Commission respectfully requests that this panel or en banc Court rehear this case and reinstate the district court's judgment. Respectfully submitted, ERIC S. DREIBAND General Counsel _______________________ JOSEPH A. SEINER CAROLYN L. WHEELER Attorney Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 ADDENDUM: PANEL DECISION CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 14th day of August, 2003, I caused (1) copies of the attached petition, and (2) a diskette containing the petition in an Adobe Acrobat PDF format, to be sent via overnight mail to: Clerk of Court Dennis R. Johnson Catherine Bremer U.S. Court of Appeals Johnson & Smetters, LLC Bremer & Warner for the Seventh Circuit 208 S. LaSalle Street 218 N. Jefferson 219 S. Dearborn Street Suite 1727 Chicago, IL 60661 Room 2722 Chicago, IL 60604 Chicago, IL 60604 I further certify that on the 14th day of August, 2003, I caused (1) copies of the attached petition, and (2) a diskette containing the petition in an Adobe Acrobat PDF format, to be sent via messenger (for delivery on August 15, 2003) to: Andrew Roth Laurence Gold Bredhoff & Kaiser, PLLC 805 15th Street, N.W. Suite 1000 Washington, D.C. 20005 __________________________ Joseph A. Seiner EEOC / Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 August 14, 2002