No. 03-2631 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. SEVERN TRENT SERVICES, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Honorable Robert W. Gettleman, No. 03-3337 _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLEE _______________________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case . . . . . . . . . . . . . . . . . .2 2. Course of Proceedings . . . . . . . . . . . . . . . .2 3. Statement of Facts . . . . . . . . . . . . . . . 3 4. District Court Decision . . . . . . . . . . . . . . 5 5. Standard of Review . . . . . . . . . . . . . . . . . 8 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 11 THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S GRANT OF THE EEOC'S APPLICATION FOR A PRELIMINARY INJUNCTION. . . . . . . . . . . . . . . . . . . . . 11 A. The district court complied with Rules 65(d) and 52(a) of the Federal Rules of Civil Procedure and with Circuit Rule 50, but, even if it did not, this Court may still review the grant of the preliminary injunction. . . . . . . . . . 13 1. The district court complied with Rule 65(d). 13 2. The court did not need to make factual findings because no facts are in dispute. . . . . . . . . . . . . . 15 3. Assuming the district court needed to make factual findings, it did. 17 TABLE OF CONTENTS(con't) PAGE 4. Even if the district failed to comply with Federal Rules 65(d) or 52(a) or Circuit Rule 50, this Court can still affirm the grant of the injunction because the record sufficiently informs this Court of the basis of the trial court's decision and because the contentions on appeal do not turn on findings of fact. . . . . . . 21 B. The district court properly applied the four-pronged test for granting the EEOC's application for an injunction. . . . . . . .. . . 24 1. The EEOC showed a likelihood of success on the merits. . . . . 25 2. The EEOC established that it had no adequate remedy at law and will suffer irreparable harm in the absence of an injunction. 27 3. The Balance of harms weighs in favor of the EEOC. . . . . . . . . . 35 4. The public interest weighs in favor of granting the injunction. . . 36 C. The scope of the injunction complies with Section 706(f)(2) of Title VII. . 36 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . .39 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Federal Cases Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6 (7th Cir. 1992)-8-, -24-, -25- Advent Elecs., Inc. v. Buckman, 112 F.3d 267 (7th Cir. 1997)-13-, -25- Bartsh v. Northwest Airlines, Inc., 831 F.2d 1297 (7th Cir. 1987)-18- Bd. of Educ. of Cmty. High Sch. Dist. No. 218 v. Illinois State Bd. of Educ., Boatman's First Nat'l Bank v. Kan. Pub. Employees Ret. Sys., 57 F.3d 638 (8th Cir. 1995). . . . . . . . . -21-, -23-, -24- Books v. Chater, 91 F.3d 972 (7th Cir. 1996) . . . . . -21-, -22- Brotherhood of Locomotive Engineers v. Baltimore & Ohio R.R. Co., 310 F.2d 513 (7th Cir. 1962) . . . . . . . . . . . . . -38- Carpenters' Dist. Council v. Cicci, 261 F.2d 5 (6th Cir. 1958)-16- EEOC v. Astra U.S.A. Inc., 929 F. Supp. 512 (D. Mass. 1996). -38- EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996)-25-, -26-, -28-, -30-, -31-, -36-, -38- EEOC v. Cosmair, Inc., 821 F.2d 1087 (5th Cir. 1987) . . . . -26- EEOC v. Pacific Press Publ'g, 535 F.2d 1182 (9th Cir. 1976). -33- EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . -25-, -32- EEOC v. United States Steel Corp., 583 F. Supp. 1357 (W.D. Penn. 1984)-32- General Tel. Co. v. EEOC, 446 U.S. 318 (1980). . . . . . . . -32- Hispanics United of DuPage County v. Village of Addison, 248 F.3d 617 (7th Cir. 2001). . . . . . . . . . . . . . . -13- Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996)-23- Keene Corp. v. Int'l Fidelity Insurance Co., 736 F.2d 388 (7th Cir. 1984)-30- TABLE OF AUTHORITIES (con't) Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1989)-20- Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir. 1986)-8- Makuc v. American Honda Motor Co., 835 F.2d 389 (1st Cir. 1987)-16- Maram Universidad Interamericana de Puerto Rico, Inc., 722 F.2d 953 (1st Cir. 1983)-33- Matter of Shell Oil Co., 966 F.2d 1130 (7th Cir. 1992) . . . -18- Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310 (1940). -15- Medina v. Spotnail, Inc., 591 F. Supp. 190 (N.D. Ill. 1984). -26- Nuelsen v. Sorensen, 293 F.2d 454 (9th Cir. 1961). . . . . . -16- Occidential Life Ins. v. EEOC, 432 U.S. 355 (1977) . . . . . -36- Ortloff v. United States, 335 F.3d 652 (7th Cir. 2003) . . . -20- Pasaquino v. Prather, 13 F.3d 1049 (7th Cir. 1994) . . -18-, -23- Professional Assoc. of College Educators v. El Paso Cmty. College Dist., 730 F.2d 258 (5th Cir. 1984) . . . . . . . . . . . -15-, -22- Rex Oil, Ltd v. M/V Jacinth, 873 F.2d 82 (5th Cir. 1989) . . -18- Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984)-8- Ross Brothers Const. Co., Inc. v. Int'l Steel Servs., Inc., 283 F.3d 867 (7th Cir. 2002)-22- Rothner v. City of Chicago, 929 F.2d 297 (7th Cir. 1991) . . -24- Sampson v. Murray, 415 U.S. 61 (1974). . . . . . . . . -22-, -23- Schmidt v. Lessard, 414 U.S. 473 (1974). . . . . . . . . . . -13- Securities & Exchange Comm'n v. Fox, 855 F.2d 247 (5th Cir. 1988)-16- Sere v. Bd. of Trustees of the Univ. of Ill., 852 F.2d 285 (7th Cir. 1988)-25- TABLE OF AUTHORITIES (con't) Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996) . . . . . . . -30- Stith v. Chadbourne & Park, 160 F. Supp. 2d 1 (D.C. Cir. 2001)-26- Sundray DX Oil Co. v. Helmevich & Payne, Inc., 398 F.2d 447 (10th Cir. 1968)-22- State Cases Hartlet v. Torres, 324 Ill. App. 3d 817, 820, 756 N.E. 2d 371, 391 (Ill. App. 2001) . Federal Statutes 42 U.S.C. § 2000e-5(f)(2). . . . . . . . . -2-, -12-, -28-, -36- 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . .-28-, -31- Federal Rules Fed. R. Civ. P. 52(a). . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 52(a) advisory committee notes . . . . -15-, -18- Fed. R. Civ. P. 52(b). . . . . . . . . . . . . . . . . . . . -20- Fed. R. Civ. P. 58 . . . . . . . . . . . . . . . . . . . . . -13- Fed. R. Civ. P. 65(a). . . . . . . . . . . . . . . . . . . . .-2- Fed. R. Civ. P. 65(d). . . . . . . . . . . . . . . . . . .passsim Cir. R. 50 . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Evid. 801(c) . . . . . . . . . . . . . . . . . . . . -30- Fed. R. Evid. 803(3) . . . . . . . . . . . . . . . . . . . . -30- TABLE OF AUTHORITIES (con't) Other Authorities EEOC Compliance Manual Notice 915.002. . . . . . . . . . . . -26- 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2579 (2d ed. 1994) . . . . . . . . . . . . . . . . . -16- 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2577 (2d ed. 1994) . . . . . . . . . . . . . . . . . -21- No. 03-2631 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. SEVERN TRENT SERVICES, INC., Defendant-Appellant. _________________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Honorable Robert W. Gettleman, No. 03-3337 _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLEE _______________________________________________________ STATEMENT OF JURISDICTION The jurisdictional summary of the Defendant-Appellant, Severn Trent Services, Inc. is complete and correct. STATEMENT OF THE ISSUE Whether the district court properly exercised its discretion when it entered a preliminary injunction under Title VII that enjoined the defendant from enforcing a contract provision prohibiting or purporting to prohibit an employee from participating in the EEOC's investigation of a charge of discrimination against the defendant. STATEMENT OF THE CASE 1. Nature of the Case This is an appeal from an order of the United States District Court for the Northern District of Illinois granting the Equal Employment Opportunity Commission's ("EEOC") application for a preliminary injunction against Severn Trent Services, Inc. ("Severn Trent"). The EEOC commenced this action pursuant to its statutory authority to seek temporary and preliminary relief whenever the agency concludes "that prompt judicial action is necessary to carry out the purposes of [Title VII]." 42 U.S.C. § 2000e-5(f)(2). The EEOC sought an injunction in part to enjoin Severn Trent from enforcing or threatening to enforce any contract provision that purported to prohibit or prohibited current or former employees, including employee Kevin Murphy, from participating in the EEOC's investigation of Deborah Petolick's charge of discrimination. In an order entered June 16, 2003, the district court granted the EEOC's application for a preliminary injunction as to Murphy. 2. Course of Proceedings On May 20, 2003, the EEOC filed an application for a preliminary injunction under Title VII, 42 U.S.C. § 2000e-5(f)(2), and under Rule 65(a) of the Federal Rules of Civil Procedure. SA-1a, 31a (application and mem.). The EEOC requested that the district court enjoin Severn Trent from entering into or enforcing provisions of any agreements that prohibit current or former employees or others from assisting the EEOC in its investigation of any charges of discrimination. Id. Severn Trent filed a response to the application for a preliminary injunction, arguing that the request for injunctive relief should be denied because: the EEOC could not show that it would suffer immediate and irreparable harm; the EEOC had an adequate remedy at law available to it since the EEOC could enforce the subpoena; and Title VII authorizes only preliminary injunctive relief that terminates upon disposition of the charge, meaning that even if the injunction issued, "Severn Trent would be free to pursue legal action against Mr. Murphy" once the EEOC disposed of Petolick's charge. SA-39a (resp. at 9). After holding three hearings on June 3, June 10 and June 16, the district court granted the EEOC's application for a preliminary injunction, although the district court narrowed the relief requested by the EEOC. RA-2 (order). 3. Statement of Facts This lawsuit arose out of the EEOC's attempt to conduct a routine investigation into Deborah Petolick's March 16, 2002, charge of discrimination against Severn Trent. SA-6a (charge at 1). In the charge, Petolick stated that she began working for Hydra-Stop, Inc. ("Hydra-Stop") in December of 1995 and that in the summer of 2000 Hydra-Stop was sold to Severn Trent. SA-6a (charge at 1). Petolick further stated that beginning in June of 2000, she had been harassed and discriminated against because of her sex and that in retaliation for complaining about it, Severn Trent denied her a promotion and eventually terminated her employment on February 8, 2002. SA-6a-9a (charge at 1-4). The EEOC assigned Petolick's charge to Investigator Tyrone Irvin. SA-24a at ¶ 3 (Irvin Aff. at 1). On April 11, 2002, the EEOC met for several hours with Murphy, a Consultant/Executive Vice President with Severn Trent who had been the owner and president of Hydra-Stop at the time of its sale. SA-48a (timesheet); SA-24a (Irvin Aff. at ¶ 4); SA-11a at ¶ 4 (agreement at 1). On September 23, 2002, the EEOC issued a subpoena to Murphy. SA-24a (Irvin Aff. at ¶ 4); SA-10a (subpoena). Murphy informed Irvin that he was unable to comply with the subpoena because of the threat of legal action against him by Severn Trent for violations of the non-disparagement provision contained in the Consulting Agreement ("Agreement") he and Severn Trent entered into on May 31, 2000. SA-24a (Irvin Aff. at ¶ 5); SA-27a (Rowe Aff. at ¶ 4b). Murphy also told the EEOC that he had sought assurance from Severn Trent that it would not take any action against him if he cooperated with the EEOC in its investigation but that Severn Trent refused to provide the requested assurance. SA-28a (12/5/02 letter). The Agreement states that it is entered into by Pitometer Associates, Inc. ("Pitometer"), Asylum Partners, LLC, and Kevin Murphy. SA-11a at ¶ 1 (agreement at 1). Article 1.6 of the Agreement states in part that "Consulting Company and Consultant shall not, directly or indirectly, in public or private, deprecate, impugn or otherwise make any remarks that would tend to or could be reasonably construed to tend to defame Company, or any affiliate of Company, its officers, employees, or their reputation." SA-13a at ¶ 1.6 (agreement at 3) (emphasis added). After Murphy refused to talk with the EEOC about its investigation of the Petolick charge, on December 5, 2002, the EEOC wrote a letter to Severn Trent. SA-28a (12/5/02 letter). In the letter, the EEOC stated that Murphy had refused to provide testimony because he believed that Severn Trent might take legal action against him pursuant to the Agreement if he were to provide testimony to the EEOC in connection with its investigation of Petolick's charge. Id. Noting that Murphy had said that Severn Trent had refused to provide assurance it would not take legal action against him, the EEOC requested that Severn Trent provide Murphy "with an enforceable written waiver or amendment to the consulting agreement indicating that Severn Trent will not take action against him for any statements he might make to the EEOC in connection with its investigation of [Petolick's] charge of discrimination." Id. Finally, the EEOC stated that if Severn Trent refused to provide a written waiver or amendment, the EEOC would be forced to consider seeking a preliminary injunction. Id. Severn Trent responded to the EEOC's letter by way of a December 13, 2002, letter. SA- 30a (12/13/02 letter). In its letter, Severn Trent stated that it did not understand why the EEOC would seek a preliminary injunction since the EEOC could simply enforce the subpoena against Murphy. Id. Severn Trent also stated that it "has taken no action, nor does its agreement with Mr. Murphy purport to restrain him from participating in any EEOC proceeding. Accordingly, Severn Trent will not waive a negotiated provision of an agreement, made in connection with the sale of a business and totally unrelated to this or any other EEOC proceeding or charge of discrimination." Id. (emphasis added). 4. District Court Decision District Court Hearings The district court held the first of three hearings on June 3, 2003. EEOC SA-56a (6/3/03 Tr.). At the first hearing, the district court judge stated that he was inclined to grant the injunction, stating that the EEOC was "not going to ask him about the personal life of somebody in the company unrelated to this or, you know, some other unrelated matter, but obviously, anything related to the charge is fair game here and no disparagement agreement is going to get in the way." EEOC SA-59a (6/3/03 Tr. at 4). He further stated that Severn Trent "could stipulate just as [EEOC] requested,' and that "[i]t's one thing to be cautious, it's another thing to be paranoid or to be difficult. You know, it kind of makes you wonder what's going on here because there should be absolutely no need to have this discussion in my view." EEOC SA-62a (6/3/03 Tr. at 7). The judge stated that he would not construe the Agreement as prohibiting Murphy from talking to the EEOC but that Severn Trent's "reluctance to just say that in open court leaves [EEOC] . . . with very little choice but to continue to seek the relief that they're seeking." Id. In the court's view, Murphy should not be forced to incur "the expense and aggravation of having to come in and defend a motion to enforce a subpoena" when he was "willing to show up, [and] just doesn't want to be hammered by" Severn Trent. EEOC SA-62a-63a (6/3/03 Tr. at 7- 8). Towards the end of the hearing, the judge repeated that he would issue the injunction if the parties were unable to reach an agreement. EEOC SA-64a (6/3/03 Tr. at 9). He stated to Severn Trent's counsel that "the statute allows it and I think that the EEOC has made a showing and that frankly, your client's conduct has helped make the showing that [the EEOC] need[s] the equitable relief in order to proceed with this investigation." Id. At the second hearing on June 10, 2003, the parties reported that they had been unable to reach an agreement to resolve this litigation. The judge stated to Severn Trent, "I'm beginning to wonder why you're so concerned about this. I'm sure the EEOC is, too." EEOC SA-69a (6/10/03 Tr. at 3). The judge asked the EEOC to submit a proposed order and for Severn Trent to submit a red-lined version proposing or striking whatever language it thought appropriate. EEOC SA-70a (6/10/03 Tr. at 4). The district court held the third of three hearings on June 16. See RA-4 (6/16/03 Tr.). At the hearing, the district court judge stated that he had "read all this stuff you sent me," apparently referring to the parties' proposed orders. RA-5 (order at 2). Id. He further stated: This was presented to me on a petition or a motion by the EEOC to prohibit the defendant, who is a successor corporation to the signatory on the contract, which was Pitometer Associates, . . . to invoke the . . . nondisparagement clause, paragraph 1.6 of the contract, because according to the affidavit I had received from [EEOC District Director] Mr. Rowe, Mr. Murphy declined to respond to the subpoena based on a threat of legal action against him. Id. The judge noted that "[t]he defendant here has questioned the factual basis for entering any kind of order," but stated that "the defendant here has basically conceded that it intended to use that [paragraph 1.6 of the contract] and it still concedes that, it intended to use that provision of the contract to prohibit Mr. Murphy from going beyond the legitimate bounds of the investigation itself." Id. Accordingly, the judge concluded that "there really is no factual dispute here. There is a contract. It has a nondisparagement clause. There is an investigation. The EEOC wants to talk to Mr. Murphy. Mr. Murphy feels that he is being prohibited by this contract and is under the threat of suit." RA-6 (Tr. at 3). The judge went on to state that he would issue the injunction but that "the defendant has one point to make, and that is that the injunction should be limited to this witness, this investigation, and I have redrafted the order submitted by the EEOC to do just that." Id. Finally, the judge gave the parties copies of the order granting the injunction and stated, "[a]s far as I'm concerned, that terminates the case." Id. at 7 (Tr. at 4). District Court Order The order, which was entered on June 16, 2003, states that the parties had been heard by the court through their counsel and that the court had received the parties' submissions. SA-2 (order). The court began by finding "(1) EEOC has a likelihood of success on the merits, (2) EEOC has no adequate remedy at law and will suffer irreparable harm in the absence of an injunction, (3) the balance of harm to EEOC and harm to Severn Trent weighs in favor of EEOC, (4) the public interest favors the grant of injunctive relief." RA-2 (order at 1). The court therefore enjoined Severn Trent and its "officers, agents, management officials, and all those in active concert or participation with them . . . from entering into or enforcing or threatening or attempting to enforce any provision of any contract, agreement or instrument which prohibits or purports to prohibit Kevin Murphy . . . from participating in the EEOC's investigation and processing of EEOC Charge No. 210A202644 captioned Petolick v. Severn Trent Servs. and Murphy's providing any information, testimony, and documents to EEOC in connection therewith." RA-2-3 (order at 1-2). STANDARD OF REVIEW This Court reviews "a district court's decision to grant or deny a preliminary injunction under the abuse of discretion standard." Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992) (citation omitted); see also Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 390 (7th Cir. 1984) (discussing the standard of review for preliminary injunctions and stating, "[t]he question for us is whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes"). The district court's factual determinations, however, "are reviewed under a clearly erroneous standard and the necessary legal conclusions are given de novo review." Lawson Prods, Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir. 1986) (citations omitted). SUMMARY OF ARGUMENT The EEOC sought a preliminary injunction to prevent Severn Trent from enforcing a non- disparagement clause against an employee, Kevin Murphy, who wanted to give the EEOC information relevant to its investigation of a discrimination charge against Severn Trent but was afraid he would get sued if he did. The district court properly granted the injunction. Contrary to Severn Trent's argument on appeal, the district court's entry of injunctive relief complied with Federal Rule of Civil Procedure 65(d). Although brief, the district court's order stated the reasons for the issuance of the injunction – that the EEOC had satisfied the four- prong test for granting an injunction. The district court's order also described in reasonable detail the enjoined conduct – that Severn Trent was prohibited from enforcing or threatening to enforce any contract provision prohibiting or purporting to prohibit Murphy from participating in the EEOC's investigation and processing of Petolick's charge of discrimination against Severn Trent. Because neither party was left in the dark as to why the injunction issued or what conduct was prohibited, the district court's order satisfied Rule 65(d). The district court's order also satisfied Federal Rules of Civil Procedure 52(a) and Circuit Rule 50. While the written order does not contain any factual findings, none are needed where, as here, the facts are undisputed. Moreover, to the extent the district court needed to make any factual findings, the district court did that on the record at the June 16, 2003, hearing where the court recited what it found to be the undisputed facts. The court also explained at the three hearings its reasons for granting the injunction. Even if this Court finds that the district court did not fully comply with these procedural rules, this Court should still review, rather than remand, the district court's order granting the EEOC's application for a preliminary injunction. The Supreme Court and this Court have stated that even where a district court has failed to comply with Federal Rule of Civil Procedure 52(a), the reviewing court may examine the record to determine if sufficient evidence supports the issuance of the injunction. Other courts have also decided a case on appeal, rather than remand it, where a district court has failed to fully satisfy Federal Rule of Civil Procedure 65(d). Because the short record in this case reveals the district court's reasoning and the factual basis for the injunction, this Court should reach the merits of the case even if it finds that the district court failed to comply with the procedural rules for issuing an injunction. This Court should affirm the district court's order on the merits because the district court acted well within its discretion in granting the EEOC's application for a preliminary injunction. As the Court found, the EEOC satisfied the four-prong test for establishing entitlement to a preliminary injunction: 1) that the EEOC had a likelihood of success on the merits; 2) that the EEOC would suffer irreparable and immediate harm in the absence of an injunction; 3) that the balance of harm to the EEOC without the injunction outweighed the balance of harm to Severn Trent should it be granted; and 4) that the public interest weighed in favor of granting the injunction. Through its failure to present any argument as to the first, third, and fourth prongs, Severn Trent has conceded that the district court properly found in the EEOC's favor on these prongs. The district court properly found that all four requirements for a preliminary injunction weighed in favor of entering the order the EEOC sought in this case. As to the first prong, the non-disparagement clause violates public policy to the extent it prohibits Murphy from participating in the EEOC's investigation of Petolick's charge. Regarding the second prong, evidence in the record establishes immediate and irreparable harm because the EEOC is hindered in its inability to complete its Congressionally mandated investigation of Petolick's charge since Murphy has refused to talk with the EEOC for fear that Severn Trent would sue him to enforce the non-disparagement clause. As to the third prong, Severn Trent has offered no evidence of any harm it will suffer because of the injunction, so the EEOC's harm in the absence of the injunction clearly weighs in favor of granting the injunction. Finally, the public interest will be served by enabling the EEOC to perform its statutory duty to investigate Petolick's charge of discrimination. Severn Trent's final attack on the temporal scope of the injunction is also unpersuasive. Severn Trent contends that the injunction should be vacated because it does not state that it expires upon the EEOC's disposition of Petolick's charge. The district court, however, maintains the inherent equitable power to effectuate the relief it ordered. That is appropriate in this case as a matter of law and policy because if the injunction expires when the EEOC disposes of the charge, Severn Trent will be free to sue Murphy for what he said to the EEOC during its investigation. Such a result would offer little protection to Murphy and would leave the EEOC unable to fulfill its mandate to investigate charges of discrimination. ARGUMENT THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S GRANT OF THE EEOC'S APPLICATION FOR A PRELIMINARY INJUNCTION. Severn Trent has literally turned a routine EEOC investigation into a federal case. Although Severn Trent asserts that the non-disparagement clause in the Agreement Murphy signed does not prohibit him from participating in the EEOC's investigation of Petolick's charge of discrimination, Severn Trent has consistently refused to assure either Murphy or the EEOC of that fact. Because Murphy refused to talk with the EEOC out of fear that Severn Trent would sue him for violating the non-disparagement clause, the EEOC sought a preliminary injunction under Rule 65(d) and 42 U.S.C. § 2000e-5(f)(2) seeking to enjoin Severn Trent from enforcing or threatening to enforce any contract that prohibited, or purported to prohibit, Murphy from talking with the EEOC. The district court properly granted the injunction. Because the district court acted within its discretion when it granted the EEOC's application for a preliminary injunction under Federal Rule of Civil Procedure 65(d) and 42 U.S.C. § 2000e-5(f)(2), this Court should affirm the district court's order. Contrary to Severn Trent's assertion, the district court's ruling comports with the procedural requirements of Rules 52 and 65(d) of the Federal Rules of Civil Procedure and of Circuit Rule 50. Even if it did not, however, this Court can still proceed with its review of the district court's ruling because the record sufficiently informs this Court of the basis of the trial court's decision and because the contentions on appeal do not turn on any findings of fact. The district court also properly applied the four-prong test for granting a preliminary injunction when it enjoined Severn Trent from enforcing or threatening to enforce the non- disparagement agreement against Murphy for anything he says to the EEOC in the course of its investigation of Petolick's charge. In fact, Severn Trent concedes on appeal that three of the four prongs were met in this case; Severn Trent disputes only that the EEOC showed that it would suffer irreparable harm in the absence of an injunction and that it had no adequate remedy at law. Because Severn Trent's argument on these points falls short, and because, contrary to Severn Trent's contention on appeal, the injunction's duration is lawful, this Court should affirm the district court's order granting preliminary injunctive relief and enabling the EEOC to complete its investigation of Petolick's charge of discrimination. A. The district court complied with Rules 65(d) and 52(a) of the Federal Rules of Civil Procedure and with Circuit Rule 50, but, even if it did not, this Court may still review the grant of the preliminary injunction. Relying on Federal Rules of Civil Procedure 65(d) and 52(a) and on Circuit Rule 50, Severn Trent argues that "the district court failed to make any findings of fact and conclusions of law or to otherwise explain the reasons for the injunction." Br. at 12. Severn Trent also appears to contend that the injunction violates Rule 65(d) because it does not adequately describe the prohibited conduct. See Br. at 13. Contrary to Severn Trent's assertions, however, the district court complied with the requirements of these rules. 1. The district court complied with Rule 65(d). Severn Trent argues that the district court failed to comply with Rule 65(d)'s requirement that an injunction set forth its reasons and describe in reasonable detail the prohibited conduct. Br. at 12-13. This argument is unavailing because the order, although brief, sets forth the reasons for its issuance and clearly states what conduct it is prohibiting. Therefore, under this Court's precedent, the order complies with Rule 65(d). See Bd. of Educ. of Cmty. High Sch. Dist. No. 218 v. Illinois State Bd. of Educ., 103 F.3d 545, 550 (7th Cir. 1996). In Board of Education, a school district brought suit against various state agencies and officials as well as the parents of a disabled child alleging that the school district was not obligated under the Individuals with Disabilities Education Act to pay for the student's placement in a private facility. See id. at 546-47. The district court disagreed and issued a preliminary injunction against the school district requiring it to pay for the student's placement. See id. at 546. On appeal, the school district argued that the district court's order, which was drafted jointly by the parties, violated Federal Rule of Civil Procedure 65(d). See id. at 550. This Court rejected that argument, stating, "[w]hile not over-burdened with reasons, the minute order states, ‘plaintiff school district shall maintain the status quo.' Maintaing the status quo is reason enough." Id. Having concluded that the order supplied sufficient reason for its issuance, this Court went on to address the adequacy of the order's instructions: The order goes on to state specifically that the school district must implement J.B.'s IEP [individualized education plan] at Kid's Peace, and that it must make flight arrangements, contracts, and payments to enroll J.B. The order allows the school district to repetition [sic] the court if it discovers a better facility for J.B. The order requires the parents to provide cover letters and release for future applications to residential facilities. Id. This Court determined that "[t]hese instructions are sufficient. Neither party is left in the dark as to why the injunction is issuing or as to what must be done." Id. As in Board of Education, in this case neither party was left in the dark as to why the district court issued the injunction or what Severn Trent is prohibited from doing. As stated in its order, the district court granted the injunction because it found that the EEOC had met the four- prong test for granting injunctive relief. RA-2 (order at 1). The order goes on to state, in a straightforward manner, that Severn Trent is "enjoined from entering into or enforcing or threatening or attempting to enforce any provision of any contract, agreement or instrument which prohibits or purports to prohibit Kevin Murphy ("Murphy") from participating in the EEOC's investigation and processing of EEOC Charge No. 210A202644 captioned Petolick v. Severn Trent Servs., Inc. and Murphy's providing any information, testimony, and documents to EEOC in connection therewith." RA- at 2-3 (order at 1-2). It is hard to imagine how Severn Trent can claim that this unambiguous language somehow leaves it in the dark about its obligations under the injunction. See Prof'l Ass'n of College Educators v. El Paso Cmty. College Dist., 730 F.2d 258, 273 (5th Cir. 1984) ("It is difficult to understand how the defendants could have legitimate difficulty understanding what they are forbidden to do, or to imagine how the injunction could be more specific without attempting to catalog every conceivable means by which an employer might retaliate or discriminate against an employee."). In short, the district court's order complies with Rule 65(d) because it states the reasons for its issuance and unequivocally describes in reasonable detail what Severn Trent is prohibited from doing. 2. The court did not need to make factual findings because no facts are in dispute. A preliminary injunction should comply with Rule 52(a). See Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316 (1940) ("It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be fair compliance with Rule 52(a) of the Rules of Civil Procedure."). Under Rule 52(a), "the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over-elaboration of detail or particularization of facts." Fed. R. Civ. P. 52(a) advisory committee's notes (emphasis added). Accordingly, a district court does not have to make findings of fact where the facts are undisputed. See Securities & Exchange Comm'n v. Fox, 855 F.2d 247, 248 (5th Cir. 1988) ("Although the district court did not make findings of fact under Rule 52(a) of the Federal Rules of Civil Procedure, the facts are undisputed, and there is sufficient support in the record for the conclusion that the position of the government was substantially justified."); Makuc v. American Honda Motor Co., 835 F.2d 389, 394 (1st Cir. 1987) (stating that court was not required to make Rule 52(a) findings of fact "since there were no facts in dispute that were relevant" to claim tried to the bench); Carpenters' Dist. Council v. Cicci, 261 F.2d 5, 8 (6th Cir. 1958) (in preliminary injunction appeal, stating "[i]t is true that if there is no dispute between the parties about the facts, the allegations of a complaint may be accepted as true, thus eliminating the necessity of formal findings"); Nuelsen v. Sorensen, 293 F.2d 454, 459 (9th Cir. 1961) (stating that "findings were not required" as to undisputed allegations) (citation omitted); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2579 (2d ed. 1994) (stating that a court does not need to make findings under Rule 52 where facts are undisputed). Here, the facts needed to decide whether to grant the EEOC's application for a preliminary injunction are undisputed. The district court acknowledged this at the June 16 hearing when the judge stated, "[s]o there really is no factual dispute here." RA-6 (6/16/03 Tr. at 3). Even Severn Trent has conceded as much, stating that "[t]he facts presented to the district court are few and very straightforward." Br. at 5. Severn Trent and the EEOC agree on the few facts of this case needed to resolve it: that on March 16, 2002, Deborah Petolick, a former Severn Trent employee, filed a charge of discrimination; that on September 23, 2002, the EEOC served a subpoena on Murphy as part of its investigation of Petolick's charge; that in 2000 Murphy signed a Consulting Agreement with Pitometer that prohibited him from defaming Pitometer or its affiliates; and that the affidavit of EEOC investigator Irvin states that Murphy said he would not comply with the subpoena because he believed that Severn Trent would take legal action against him pursuant to the non-disparagement provision of the Agreement. Br. at 5-6. The only fact Severn Trent even appears to contest is whether it is a successor to Pitometer or otherwise a party to the Consulting Agreement. Br. at 21. This issue is a red- herring. First, Severn Trent's position is inherently contradictory and presents the classic case of a party wanting to have its cake and eat it too. At the same time it disavows being a party to the Agreement or that it can even waive the non-disparagement provision, Br. at 21-22, Severn Trent seeks to reap the benefits of the Agreement by asserting that it prohibits Murphy from defaming Severn Trent. See, e.g., Br. at 23 n.10. Second, when the EEOC first contacted Severn Trent about this case, it represented that it was a party to the Agreement by stating in its December 13, 2002, letter to the EEOC that "its agreement with Mr. Murphy" does not "purport to restrain him from participating in any EEOC proceeding." SA-30a (12/13/02 letter). Third, if Severn Trent believes that it is not a party to the Agreement and cannot enforce the non-disparagement clause against Murphy, then it should have long ago assured Murphy of that rather than wasting the time of this Court, the district court, and the EEOC. Fourth, Article 1.6 of the Agreement states that it prohibits Murphy from defaming not only Pitometer but also "any affiliate" of Pitometer. SA-13a (agreement at ¶ 1.6). This broad language appears to encompass Severn Trent. Thus, the Commission contends that the district court did not need to make any factual findings because there were no disputed facts. 3. Assuming the district court needed to make factual findings, it did. If this Court determines that the district court needed to make Rule 52(a) findings, the Commission submits that they can be found in the order and in the transcripts of the hearings. Similarly, the district court's order fully complies with Circuit Rule 50. Rule 52(a) does not explicitly state "whether the court's findings must be ‘extensive,' or whether a ‘sketchy prouncement' will suffice.'" Rex Oil, Ltd v. M/V Jacinth, 873 F.2d 82, 87 (5th Cir. 1989). The advisory committee's notes state, however, that "the judge need only make brief, definite, pertinent findings and conclusions . . . there is no necessity for over-elaboration of detail or particularization of facts." Fed. R. Civ. P. 52(a) advisory committee's notes. This Court has said that Rule 52(a) findings "are adequate if they are sufficiently comprehensive to disclose the steps by which the trial court reached its ultimate conclusion on factual issues." Bartsh v. Northwest Airlines, Inc., 831 F.2d 1297, 1304 (7th Cir. 1987) (citations omitted). As discussed, supra, the district court's order, while short, makes brief findings and conclusions to justify the issuance of the preliminary injunction. In addition, at the June 16, 2003 hearing, the district court made what constitute factual findings, as the judge's statements on the record sufficiently disclose the steps he took in determining that the injunction should issue. See id. He stated: This was presented to me on a petition or a motion by the EEOC to prohibit the defendant, who is a successor corporation to the signatory on the contract, which was PitometerAssociates, to prohibit the defendant, a successor, to invoke the what we'll call nondisparagement clause, paragraph 1.6 of the contract, because according to the affidavit I had received from Mr. Rowe, Mr. Murphy declined to respond to the subpoena based on a threat of legal action against him. The defendant here has questioned the factual basis for entering any kind of order. However, the defendant has basically conceded that it intended to use that and it still concedes that, it intended to use that provision of the contract to prohibit Mr. Murphy from going beyond the legitimate bounds of the investigation itself. So there really is no factual dispute here. There is a contract. It has a nondisparagement clause. There is an investigation. The EEOC wants to talk to Mr. Murphy. Mr. Murphy feels that he is being prohibited by this contract and is under the threat of suit. SA-5-6 (6/16/03 Tr. at 2-3). Thus, although the district court did not think any facts were in dispute, the court recited the facts that supported the issuance of the injunction. The district court also expressed its reasons for granting the injunction at the June 3, 2003, and June 10, 2003, hearings. See EEOC SA-56a-66a (6/3/03 Tr.); EEOC SA-67a-71a (6/10/03 hearing). In short, and as discussed at pp. 5-6, the district court stated that it would not construe the non-disparagement clause as prohibiting Murphy from talking to the EEOC, but that Severn Trent's "reluctance to just say that in open court leaves" the EEOC "with very little choice be to continue to seek the relief that they're seeking." EEOC SA-62a (6/3/03 Tr. at 7). The court also reasoned that Murphy, a willing witness, should not be forced to incur the "expense and aggravation" of having to defend a motion to enforce the EEOC's subpoena. EEOC SA-62a- 63a (6/3/03 Tr. at 7-8). Since Rule 52(a) allows for oral findings and because the judge made such findings and stated his reasoning at the hearing, the judge complied with Rule 52(a) and Cir. R. 50. See Ortloff v. United States, 335 F.3d 652, 660-61 (7th Cir. 2003) (where district court erroneously entered judgment under Rule 50 instead of Rule 52, holding that judge's oral ruling nevertheless satisfied Rule 52(a) where the judge stated "in essence that the evidence presented was insufficient to establish that the prison officials had, in fact, destroyed or damaged any of [plaintiff's] property" and because Rule 52(a) allows for oral findings); Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 878 n.8 (9th Cir. 1989) (considering on appeal court's "post-trial oral remarks," although not included in Rule 52 findings, because remarks were consistent with findings and supplemented them). Significantly, although Severn Trent now contends that the district court's order violated Circuit Rule 50 and Federal Rule of Civil Procedure 52(a), Severn Trent never alerted the judge to any alleged violation of the rules and never filed a motion to make additional findings, as expressly contemplated by Federal Rule of Civil Procedure 52(b). See Fed. R. Civ. P. 52(b) ("On a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings – or make additional findings – and may amend the judgment accordingly."). Had it done so, the district court could have quickly made any additional findings of fact it thought necessary. Instead, Severn Trent waited until it appealed this case to argue that the district court's order violated Federal Rule of Civil Procedure 52(a). Finally, although Severn Trent argues that any procedural deficiencies in the district court's ruling require that the district court's order be vacated, Br. at 16, this Court has consistently held that "a record lacking stated reasons for the district court's decision would ordinarily lead us to remand the case for the development of a more useful record." Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996) (emphasis added) (citations omitted). For the reasons discussed below, however, remand is unnecessary even if this Court finds that the district court failed to comply with one of these procedural rules. 4. Even if the district failed to comply with Federal Rules 65(d) or 52(a) or Circuit Rule 50, this Court should still affirm the grant of the injunction because the record sufficiently informs this Court of the basis of the trial court's decision and because the contentions on appeal do not turn on findings of fact. Assuming, arguendo, that the district court's order fell short of satisfying Federal Rules of Civil Procedure 65(d) or Rule 52(a) or Circuit Rule 50, this Court should proceed to the merits of this appeal because the record in this case sufficiently informs this Court of the district court's findings and reasoning and, alternatively, because resolution of this case on appeal does not turn on any findings of fact. See, e.g., Boatman's First Nat'l Bank v. Kan. Pub. Employees Ret. Sys., 57 F.3d 638, 640 n.5 (8th Cir. 1995) ("Appellate review absent specific findings and conclusions from the district court may proceed only when ‘(1) the record itself sufficiently informs the court of the basis for the trial court's decision on the material issues, or (2) the contentions raised on appeal do not turn on findings of fact.'") (citation omitted); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2577 (2d ed. 1994) (stating that "it is settled that compliance with Rule 52 is not jurisdictional and the appellate court may decide the appeal without further findings" where "the record sufficiently informs it of the basis of the district court's decision of the material issues in the case, or if the only contentions raised by the parties on appeal do not turn of findings of fact"). The Supreme Court has stated that even where a district court has failed to comply with Federal Rule of Civil Procedure 52(a), it is not "foreclosed from examining the record to determine if sufficient allegations or sufficient evidence supports the issuance of injunctive relief." Sampson v. Murray, 415 U.S. 61, 86, n.58 (1974). Similarly, this Court has "consistently held ‘that lack of an explanation [by a district court] does not necessarily defeat appellate jurisdiction, at least where the reasons are apparent from the record.'" Ross Bros. Const. Co., Inc. v. Int'l Steel Servs., Inc., 283 F.3d 867, 872 (7th Cir. 2002) (finding that district court violated Circuit Rule 50 but going on to examine the record and reverse summary judgment rather than remand) (citation omitted); see also Prof'l Ass'n, 730 F.2d at 273 (finding that "district court made no express findings of fact in support of an injunction, as required by Federal Rule of Civil Procedure 65(d)" but going on to examine record to determine if evidence supported injunctive relief); Sundray DX Oil Co. v. Helmevich & Payne, Inc., 398 F.2d 447, 450 (10th Cir. 1968) (finding it doubtful that injunction complied with Rule 65(d) because it failed to set forth the reasons for its issuance and was not specific in its terms but looking to the entire record, including judge's comments at the hearing, to review grant of injunctive relief). Thus, although "a record lacking stated reasons for the district court's decision would ordinarily" lead to remand, "in some cases where . . . the correct resolution of the appeal is fairly clear, ‘[a] remand would prolong the case without contributing to accurate resolution.'" Books, 91 F.3d at 978 (citations omitted) (proceeding to merits of appeal although record was devoid of any findings of fact or law and therefore violated Circuit Rule 50). Here, a review of the record reveals the district court's findings and its reasons for granting the injunction. As discussed above, the district court's order and its comments at the three hearings sufficiently inform this Court of the basis of the trial court's decision. The judge stated at the June 3 and June 10 hearings the reasons he was inclined to grant the EEOC's application for a preliminary injunction. See EEOC SA-56a-66a (6/3/03 Tr.); EEOC SA-67a-71a (6/10/03 Tr.). At pages 2-3 of the June 16 transcript, the district court made factual findings. RA-5-6 (6/16/03 Tr. at 2-3). The district court also stated at the third hearing that it agreed with Severn Trent that the "injunction should be limited to this witness, this investigation," and that the judge had written the order accordingly. RA-6 (6/16/03 Tr. at 3). The order sets forth the basis of the district court's decision, to-wit, that the EEOC had established the four-prong test entitling it to injunctive relief. RA-2-3 (order at 1-2). Thus, even if this Court finds that the district court's order did not fully comply with Federal Rules 52(a) and 65(d) or with Circuit Rule 50, the purpose underlying these rules was served because the district court considered the basis for its decision, and stated its reasons for the decision, and therefore enabled this Court to review its decision. See Boatman's, 57 F.3d at 640 (purpose of Rule 52(a) is: "(1) to facilitate appellate review; (2) to make the district court's decision definite for purposes of res judicata; and (3) to prompt the district court ‘to fully and conscientiously consider the basis for [the] decision'") (citation omitted); Pasaquino, 13 F.3d at 1051 ("Circuit Rule 50 serves three functions: ‘to create the mental discipline that an obligation to state reasons produces, to assure the parties that the court has considered the important arguments, and to enable a reviewing court to know the reasons for the judgment'") (citations omitted). Thus, the Commission contends that the record establishes the basis of the court's decision and its findings. Even if the district court had made no factual findings, however, this Court would still be able to "examin[e] the record to determine if sufficient allegations or sufficient evidence support[ed]" the district court's ruling. Sampson, 415 U.S. at 86 n.58. Review of the record in this case is particularly appropriate because the few facts needed to resolve this case are undisputed. See Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 848 n.1 (2d Cir. 1996) (despite district court's failure to make any independent factual determinations as required by Rule 52(a), going on to examine the record and "ask whether injunctive relief is warranted based on the undisputed facts") (citations omitted); Boatman's, 57 F.3d at 640 n.5 (stating that appellate review absent specific findings and conclusions may proceed where "the contentions raised on appeal do not turn on findings of fact") (citations omitted). Therefore, this Court should review the short record in this case and affirm the district court for the reasons discussed below. See Rothner v. City of Chicago, 929 F.2d 297, 303 n.9 (7th Cir. 1991) (court may affirm on any basis in the record). B. The district court properly applied the four-pronged test for granting the EEOC's application for an injunction. A party seeking a preliminary injunction must make two threshold showings as part of the four-part test for obtaining a preliminary injunction. First, the party must demonstrate it has "some likelihood of succeeding on the merits." Abbott, 971 F.2d at 11. Second, the party must show that "it has no adequate remedy at law and will suffer irreparable harm if preliminary relief is denied." Id. (internal quotation marks and citations omitted). If the moving party meets this threshold showing, the court must go on to the third prong of the test, which calls for balancing the irreparable harm the non-moving party will suffer upon the granting of the injunction against the irreparable harm the moving party will suffer in the absence of the injunction. See id. Finally, the court must consider "the public interest, meaning the consequences of granting or denying the injunction to non-parties." Id. at 11-12 (citations omitted). The district court then must weigh all four factors, keeping in mind that "the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side." Id. (citations omitted). This Court should affirm the district court's order because the district court acted well within its discretion in granting the EEOC's application for a preliminary injunction. See Advent Elecs., Inc. v. Buckman, 112 F.3d 267, 274 (7th Cir. 1997) ("A district court has broad discretion to issue or deny a preliminary injunction.") (citations omitted). Through its failure to argue otherwise, Severn Trent concedes on appeal that the district court properly found that the EEOC had a likelihood of success on the merits, that the balance of harm to the EEOC and to Severn Trent weighs in favor of the EEOC, and that the public interest favors granting the injunction. See Br. at 17-24; Sere v. Bd. of Trustees of the Univ. of Ill., 852 F.2d 285, 287 (7th Cir. 1988) (a party's failure to address a claim in its opening brief results in a waiver of that issue). Despite these concessions, a brief discussion of each prong is necessary since the district court had to – and did – weigh all four factors in determining whether to grant the EEOC's injunction. See Abbott, 971 F.2d at 12. A discussion of the EEOC's likelihood of success on the merits is also critical here because the more likely it is that the EEOC will succeed on the merits, the less the balance of irreparable harm need weigh towards the EEOC, a fact entirely overlooked by Severn Trent. See id.; Br. at 17-24. 1. The EEOC showed a likelihood of success on the merits. The district court correctly held that the EEOC demonstrated a likelihood of success on the merits. Strong public policy prevents the enforcement of contract agreements that prohibit or purport to prohibit an employee, or former employee, from participating in an EEOC investigation. See EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984) ("it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired."); see also EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996). In Astra, the EEOC sought a preliminary injunction under Title VII to prevent the employer from enforcing provisions of settlement agreements prohibiting employees from filing charges or assisting the EEOC in its investigations. Astra, 94 F.3d at 740-41. The court held that "non-assistance covenants which prohibit communication with the EEOC are void as against public policy." Id. at 745. In reaching its conclusion, the court stated that "if victims of or witnesses to sexual harassment are unable to approach the EEOC or even to answer its questions, the investigatory powers that Congress conferred would be sharply curtailed and the efficacy of investigations would be severely hampered." Id. at 744. Noting that the Commission acts not just on behalf of private parties but also to vindicate the public interest, the court further stated, "any agreement that materially interferes with communication between an employee and the Commission sows the seeds of harm to the public." Id. (citing EEOC v. Cosmair, 821 F.2d 1085, 1090 (5th Cir. 1987); see also EEOC Compliance Manual Notice 915.002, "EEOC Enforcement Guidance on non-waivable employee rights under [ ] (EEOC) enforced statutes," (April 10, 1997), www.eeoc.gov/docs/waiver.html, ("An employer may not interfere with the protected right of an employee to file a charge, testify, assist, or participate in any manner in an investigation, hearing, or proceeding under Title VII"). Moreover, as Severn Trent points out in its brief, "Murphy has a judicial privilege to respond to the EEOC subpoena and communicate with the EEOC about the Petolick Charge." Br. at 23; see Medina v. Spotnail, Inc., 591 F. Supp. 190, 196 (N.D. Ill. 1984) (holding that absolute privilege applied to statements made at EEOC fact-finding conference, which was quasi- judicial proceeding and therefore would not support defamation claim); see also Stith v. Chadbourne & Park, 160 F. Supp. 2d 1, 8 (D.C. Cir. 2001) (statements made by employer during EEOC investigation were entitled to absolute privilege and therefore did not support defamation claim). Since the order protects Murphy from suit for exactly the conduct Severn Trent concedes the privilege encompasses – and no more – Severn Trent cannot contest the likelihood of the EEOC's success on the merits. See RA-2-3 (order at 1-2) (prohibiting Severn Trent from enforcing or threatening to enforce any provision of any contract prohibiting Murphy "from participating in the EEOC's investigation and processing of EEOC Charge No. 210A202644 captioned Petolick v. Severn Trent Servs., Inc. and Murphy's providing any information, testimony, and documents to EEOC in connection therewith"); Hartlep v. Torres, 324 Ill. App. 3d 817, 820, 756 N.E. 2d 371, 373 (Ill. App. 2001) (absolute judicial privilege applies where witness' "statements hav[e] any bearing on the subject at issue, regardless of the witness' motive or the unreasonableness of the witness' conduct," but does not apply where the witness introduces "inflammatory evidence entirely unrelated to the litigation"), appeal denied, 98 Ill.2d 590, 766 N.E.2d 239 (Ill. 2002) (citation omitted). Thus, any contract that prohibits or purports to prohibit Murphy from participating in the EEOC's investigation of Petolick's charge of discrimination is unenforceable on the grounds that it violates public policy and that his participation is subject to a privilege as part of a quasi-judicial proceeding. Therefore, the district court properly found that the EEOC established the first prong. 2. The EEOC established that it had no adequate remedy at law and will suffer irreparable harm in the absence of an injunction. Severn Trent maintains that the district court abused its discretion in finding that the EEOC has no adequate remedy at law and that the EEOC will suffer irreparable harm without the injunction. Br. at 17-24. Severn Trent's arguments on appeal, however, are unavailing. Severn Trent first argues that the EEOC's failure to seek judicial enforcement of the subpoena against Murphy "dooms its claim for equitable relief here." Br. at 18. This argument is unpersuasive as a matter of law and policy. Nothing in Section 706(f)(2) of Title VII, 42 U.S.C. § 2000e-5(f)(2), requires that the EEOC attempt to enforce a subpoena before seeking injunctive relief. Moreover, and contrary to Severn Trent's assertions in its brief, Br. at 19, the First Circuit soundly rejected this exact argument in Astra. There, the defendant argued that "because the EEOC could obtain the information it seeks through the use of its subpoena power, there is no evidence of irreparable harm and, hence, no basis for fashioning the disputed segment of the injunction." Astra, 94 F.3d at 745. The court characterized this argument as "a contention that employees who have signed settlement agreements should speak only when spoken to" and flatly rejected it. Id. Citing the strong public policy in favor of "the free flow of information between victims of harassment and the agency entrusted with righting the wrongs inflicted upon them," the First Circuit stated that "[s]uch a protocol would not only stultify investigations but also significantly increase the time and expense of a probe." Id. Like the defendant in Astra, Severn Trent urges this Court to adopt a policy that employees who have signed broad non-disparagement clauses should speak to the EEOC only when spoken to via a judicially enforced subpoena. Such a policy would significantly interfere with the EEOC's Congressional mandate to investigate all charges of discrimination by impeding the free flow of communication between the EEOC and victims and witnesses. See 42 U.S.C. § 2000e-5(b) (stating that "[w]henever a charge is filed" the Commission "shall make an investigation thereof"). Moreover, such a policy would interfere with the EEOC's discretion to select the best method of conducting an investigation, whether it be enforcing a subpoena or seeking a preliminary injunction. Since the EEOC's interest in this case is to ensure that Murphy is willing to speak freely about the Petolick charge, the EEOC elected to protect his interests and alleviate his concerns about potential retribution by his employer by seeking an injunction against Severn Trent rather than by coercing Murphy's testimony through enforcement of the subpoena. Thus, the district court properly concluded that Murphy should not be forced to endure the expense and aggravation of having to defend against a subpoena enforcement action, EEOC SA- 62a-63a (6/3/03 Tr. at 7-8), and that the EEOC would suffer irreparable harm in the absence of an injunction. Next, Severn Trent argues that the EEOC failed to show immediate and irreparable harm because Severn Trent never threatened Murphy with legal action. Br. at 20. This is a strawman argument since the EEOC has never alleged that Severn Trent explicitly threatened Murphy with legal action. Instead, and just as effectively, Severn Trent has indirectly threatened Murphy with legal action if he participates in the EEOC's investigation. Severn Trent has conveyed this implicit threat by consistently refusing to assure either Murphy or the EEOC that it would not sue Murphy for violating the non-disparagement clause – despite the fact Severn Trent has simultaneously contended that the non-disparagement clause does not restrain Murphy from talking with the EEOC. See SA-28a (12/5/02 letter) ("Mr. Murphy states that he has sought assurances from Severn Trent that it will not take action against him if he cooperates in EEOC's investigation, but that Severn Trent has refused to provide such assurances."); SA-30a (Severn Trent's 12/13/02 letter) (stating that its agreement does not "purport to restrain [Murphy] from participating in any EEOC proceeding. Accordingly, Severn Trent will not waive a negotiated provision of an agreement, made in connection with the sale of a business and totally unrelated to this or any other EEOC proceeding or charge of discrimination"). Thus, while Severn Trent has not overtly threatened to sue Murphy, the clear implication of Severn Trent's coy refusal to assure Murphy or the EEOC that it would not sue him is that it may well take legal action against him. As the district court succinctly stated, "Mr. Murphy feels that he is being prohibited by this contract and is under the threat of suit[,]" RA-5-6 (Tr. at 2-3), and Severn Trent did nothing to dispel that reasonable belief. Severn Trent's related argument – that "the EEOC has presented no evidence" that Murphy refused to comply with the EEOC's subpoena because of his belief that Severn Trent would seek to enforce the non-disparagement clause if he did – is frivolous as it ignores relevant evidence in the record. Br. at 24. The district court explicitly found at the hearing that "according to the affidavit I had received from Mr. Rowe, Mr. Murphy declined to respond to the subpoena based on a threat of legal action against him." RA-5 (Tr. at 2). The declaration from John P. Rowe, District Director of the EEOC's Chicago District Office, states that "Murphy declined to respond to the subpoena based on the threat of legal action against him by Respondent for violation of the terms of a non-disparagement provision contained in a Consulting Agreement between Murphy and Respondent." SA-27a (Rowe Decl. at ¶ 4c). The affidavit of the EEOC investigator, Tyrone Irvin, also states, "Murphy advised me that he could not comply with the EEOC's subpoena due to the threat of legal action against him by Severn Trent for violation of a non-disparagement provision contained in a Consulting Agreement between Murphy and Severn Trent if he complied with EEOC's subpoena," SA24a-25a (Irvin Aff. at ¶ 5), and Severn Trent has offered no evidence to the contrary. Moreover, the district court's remarks at the first and second hearings indicate its belief that Severn Trent would not be fighting a waiver of the non- disparagement clause if it did not intend to sue Murphy. See EEOC SA-62a (6/3/03 Tr. at 7) ("It's one thing to be cautious, it's another thing to be paranoid or to be difficult. You know, it kind of makes you wonder what's going on here because there should be absolutely no need to have this discussion in my view."); EEOC SA-69a (6/10/03 Tr. at 3) ( "I'm beginning to wonder why you're so concerned about this. I'm sure the EEOC is, too."). Thus, the record amply supports the district court's finding that Murphy refused to talk with the EEOC out of fear that Severn Trent would sue him for violating the non-disparagement clause. Accordingly, the irreparable harm the EEOC will suffer without the injunction is its inability to complete its Congressionally mandated investigation of Petolick's charge of discrimination. See 42 U.S.C. § 2000e-5(b) (EEOC shall investigate all charges of discrimination); Astra, 94 F.3d at 745 (finding "sufficient risk of irreparable harm to warrant the issuance of a preliminary injunction addressed to the non-assistance provisions" of settlement agreements where former employee submitted affidavit stating she possessed relevant information that she could not disclose because of the agreement). Because "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable," General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980) (citation omitted), in the absence of an injunction the EEOC would also be deprived of any information Murphy has about other statutory violations, which is of particular concern in this case since Petolick's charge refers to discriminatory treatment of other employees. SA-6A (charge at 1). Although Severn Trent posits that "[p]resumably, Mr. Murphy actually discussed substantive issues relating to the Petolick Charge during the ‘several hours' he spent with the EEOC," Br. at 24, this speculative assertion is unsupported by any evidence in the record and was refuted at the June 3, 2003, hearing by EEOC's trial attorney. See EEOC SA-58a (6/3/03 Tr. at 3) ("[W]e met with him only to discuss the fact that we had the subpoena and we wanted his testimony. He is not willing to provide us the information regarding the charge in the absence of a clear statement or agreement from the defendant that they will not construe the non- disparagement provision to cover any information."). Thus, without the injunction, the EEOC will suffer irreparable harm. See Shell Oil, 466 U.S. at 69 ("it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired"); EEOC v. United States Steel Corp., 583 F. Supp. 1357, 1360-61 (W.D. Penn. 1984) (holding that enforcement of ADEA releases would cause "irreparable harm to the EEOC for which the EEOC cannot be adequately recompensed in an action at law for damages" where at least one employee refused to assist in EEOC investigation because he had signed release and other employees were reluctant to file charges or testify). Next, Severn Trent makes the meritless argument that because Petolick filed her charge more than a year before the EEOC sought injunctive relief, Section 706(f)(2) precludes an award of relief since it applies where "prompt judicial action is necessary." See Br. at 22. The date of charge-filing is irrelevant; the only relevant date is that on which the EEOC learned of the need for protection. Here, the EEOC issued a subpoena to Murphy on September 23, 2002, and, after he refused to comply, sought to resolve the matter with Severn Trent. See SA-10a (subpoena); SA-28a (12/5/02 letter). Not until December 13, 2002, when the EEOC received Severn Trent's letter refusing to assure the EEOC or Murphy that it did not intend to sue him, did the EEOC realize there was a need for "prompt judicial action" to protect Murphy's interest and enable the EEOC to complete its investigation. SA-30a (12/13/02 letter). Five months later, on May 20, 2002, the EEOC filed this preliminary injunction action. SA-4a (application). In this situation, where the conduct the EEOC sought to have enjoined had not yet occurred, and would not arise until after Murphy gave his statement to the EEOC, the five-month delay in seeking injunctive relief was reasonable and does not undermine the immediacy of the harm to the EEOC that would result from the denial of injunctive relief. See Maram v. Universidad Interamericana de Puerto Rico, Inc., 722 F.2d 953, 960 (1st Cir. 1983) (stating that a "busy administrative agency cannot operate overnight" and holding that neither agency's four-month delay in seeking injunction nor the fourteen-month delay on appeal warranted denial of preliminary injunction). Severn Trent makes three other points, none of which establishes that the district court abused its discretion in finding that the EEOC will suffer irreparable harm in the absence of the injunction. First, Severn Trent points to the sample settlement agreement on the EEOC's web page. Br. at 21. The EEOC's sample form of a hypothetical settlement agreement is irrelevant to this dispute. Even if it were not, however, Severn Trent overlooks the fact that the EEOC's sample agreement prohibits the communication of "false information or the communication of information with reckless disregard to its truth or falsity." SA-46a. In contrast, the non- disparagement provision here broadly states that Murphy "shall not . . . deprecate, impugn or otherwise make any remarks that would tend to or could be reasonably construed to tend to defame" Severn Trent. SA-13a (agreement at ¶ 1.6). Second, Severn Trent contends that the district court abused its discretion in finding irreparable harm because Murphy's communications with the EEOC are protected by judicial privilege, although Severn Trent also contends that "[t]o the extent Mr. Murphy's communications with the EEOC are not privileged or otherwise protected by federal or state law, however, the terms of the Non-Disparagement Provision should remain enforceable." Br. at 23. As discussed, supra at pp. 24-25, the EEOC agrees that Murphy enjoys an absolute privilege to provide "any information, testimony, and documents to EEOC in connection with" its "investigation and processing of" Petolick's charge. RA-2-3 (order at 1-2). Accordingly, the EEOC believes that Murphy would prevail in any future lawsuit by Severn Trent for violations of the non-disparagement clause arising from his participation in the EEOC's investigation of Petolick's charge. Whether Murphy would have a successful defense to a future lawsuit for defamation, however, does not prohibit Severn Trent from filing a lawsuit against Murphy for breaching the broad language of the non-disparagement clause. Where, as here, the irreparable harm to the EEOC is a witness' unwillingness to talk with the EEOC out of fear of being sued by an employer (and the expense and negative consequences associated with that), the existence of any successful defense to a defamation action is irrelevant to a determination of irreparable harm. Third, Severn Trent contends that it "is not a party to the Consulting Agreement." Br. at 21. As discussed, supra at pp. 15-16, Severn Trent's contention is unpersuasive. Moreover, Severn Trent can still threaten (and has implicitly threatened) to sue Murphy for violating the non- disparagement clause, regardless of whether Severn Trent is a party to the Agreement. Thus, the irreparable harm faced by the EEOC in the absence of the injunction – that Murphy will refuse to talk with the EEOC out of fear of a lawsuit by Severn Trent – is unaffected by whether Murphy would be able to prevail eventually in any suit brought by Severn Trent by arguing that Severn Trent was not a party to the Agreement. And, once again, if Severn Trent's position really is that it is not a party to the Agreement and therefore can neither sue to enforce it nor benefit from its protections, then Severn Trent should have assured Murphy, the EEOC, and the district court of that fact long ago. 3. The balance of harms weighs in favor of the EEOC. The district court properly found, and Severn Trent concedes by failing to argue otherwise, that the balance of harm to the EEOC without the injunction outweighs any harm to Severn Trent from issuing it. Moreover, Severn Trent has not advanced, and could not advance, any colorable argument that would support a contention that it would be harmed by its inability to sue Murphy for "participating in the EEOC's investigation and processing of EEOC charge No. 210A202644 captioned Petolick v. Severn Trent Servs., Inc., and Murphy's providing any information, testimony, and documents to EEOC in connection therewith." RA-2-3 (order at 1- 2). On the other hand, as discussed, supra, in the absence of an injunction, the EEOC will suffer irreparable and immediate harm to its ability to carry out its Congressional mandate to investigate Petolick's charge of discrimination. Therefore, this prong weighs entirely in favor of the EEOC. 4. The public interest weighs in favor of granting the injunction. As Severn Trent concedes on appeal through its failure to argue otherwise, the district court did not abuse its discretion in determining that this prong weighs in favor of the EEOC. "[U]nder the procedural structure created by the 1972 amendments [to Title VII], the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion." Occidential Life Ins. v. EEOC, 432 U.S. 355, 368 (1977); see also Astra, 94 F.3d at 745 ("any agreement that materially interferes with communication between an employee and the Commission sows the seeds of harm to the public interest") (citation omitted). Therefore, the district court properly held that the public interest favors granting injunctive relief. In short, because the district court did not abuse its discretion in determining that the EEOC's injunction should have been granted, this Court should affirm the district court's order enjoining Severn Trent from threatening to enforce the agreement or any contract purporting to prohibit Murphy from assisting in the EEOC's investigation of Petolick's charge. C. The scope of the injunction complies with Section 706(f)(2) of Title VII. Finally, Severn Trent relies on 42 U.S.C. § 2000e-5(f)(2) to contend that the injunction should be vacated because it does not expire upon the EEOC's disposition of Petolick's charge of discrimination. Br. at 25-26; see also 42 U.S.C. § 2000e-5(f)(2) (stating that "the Commission . . . may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge"). Severn Trent's focus on the temporal language in this statutory provision ignores the broad mandate empowering courts to award "appropriate" relief and would undermine the Congressional purpose for including this provision – to enable the Commission to seek prompt action when necessary to carry out the purpose of Title VII. In this case an order that expired at the conclusion of the administrative processing of Petolick's charge would not constitute appropriate relief as a mater of law or logic. Although the injunction in this case is properly characterized as "preliminary" relief because it was issued in furtherance of an ongoing investigation, it is not preliminary as to any further proceedings with respect to the enforceability of the non-disparagement clause against Murphy for his participation in the EEOC's investigation of Petolick's charge. See also RA-7 (Tr. at 4) (granting injunction and stating, "[a]s far as I'm concerned, that terminates the case."). The district court's decision to grant an injunction is based on a final determination that any contract provision prohibiting or purporting to prohibit Murphy from participating in the investigation of Petolick's charge is void as a matter of public policy. Thus, the injunction is preliminary to further proceedings – administrative and possibly judicial – with respect to possible Title VII violations by Severn Trent arising from Petolick's charge of discrimination, but it is final as to the enforceability of the non-disparagement clause as applied to any testimony Murphy offers to the EEOC. The relief ordered by the court is temporally restricted to the pendency of the EEOC's administrative processing because it prohibits Severn Trent from enforcing the non- disparagement clause as to anything Murphy says to the EEOC during the investigation of the Petolick charge. As a practical matter, if the injunction dissolves upon the disposition of Petolick's charge of discrimination, the protection won by the EEOC on Murphy's behalf would be wholly illusory. In that case, Severn Trent would be free to sue Murphy for his statements to the EEOC as soon as the EEOC disposed of the charge. This, in fact, is exactly what Severn Trent has hinted it may do. See SA-39a (resp. at 9) ("Accordingly, even if this Court issues a preliminary injunction, once the charge is terminated, Severn Trent would be free to pursue legal action against Mr. Murphy, subject of course, to the same judicial and statutory privileges and defenses already available to Mr. Murphy now."). Knowing of that future possibility is precisely what caused Murphy to refuse to talk to the EEOC in the first place. The injunction would achieve nothing if Murphy remained fearful of having the non-disparagement clause used to sue him for information he provides to the EEOC. Since "[t]he district court is a federal court of original jurisdiction and enjoys inherent equitable powers to be used in the exercise of its judicial discretion," Brotherhood of Locomotive Engineers v. Baltimore & Ohio R.R. Co., 310 F.2d 513, 516 (7th Cir. 1962), and because an injunction that terminated upon the disposition of Petolick's charge would vitiate the very protection the court sought to provide, the district court had the authority to issue the injunction without an expiration date. See EEOC v. Astra U.S.A. Inc., 929 F. Supp. 512, 521 (D. Mass. 1996) (granting injunction under Section 706(f)(2) "until further order of the Court"); aff'd in part and vacated in part, 94 F.3d at 747 (affirming portion of district court's injunction restraining defendant from enforcing non-assistance provisions of settlement agreements). CONCLUSION For the foregoing reasons, the Commission respectfully requests that this Court affirm the order of the district court granting the EEOC's application for a preliminary injunction and enjoining Severn Trent from enforcing or threatening to enforce any contract provision purporting to prohibit Murphy from participating in the EEOC's investigation and processing of EEOC charge No. 210A202644, captioned Petolick v. Severn Trent Servs., Inc. and from providing information in connection with the investigation. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7030 Washington, D.C. 20507 (P) (202) 663-4724 (F) (202) 663-7090 CERTIFICATE OF COMPLIANCE I, Anne Noel Occhialino, hereby certify that this brief complies with the type-volume limitations imposed under Fed. R. SA- P. 32(a)(7)(B). The brief contains 12,695 words. The disk submitted to the Court and counsel is virus-free. _______________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief and one copy of the foregoing brief on digital media, this 17th day of September, 2003 by overnight mail, postage pre-paid, to the following: Patricia C. Slovak Christine G. Uhlig SCHIFF, HARDIN & WAITE Suite 6600 233 S. Wacker Drive 6600 Sears Tower Chicago, IL 60606 Courtesy copy of written brief and appendix sent to: Judith E. Harris David A. Hitchens MORGAN, LEWIS, & BOCKIUS LLP 1701 Market St. Philadelphia, PA 19103 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (P) (202) 663-4724 (F) (202) 663-7090