Strauss v. Rent-A-Center, 11th Cir. Brief as amicus Mar. 13, 2006 No. 05-16401 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____________________________________________ LYNETTE ANDUJAR STRAUSS, Plaintiff-Appellant, v. RENT-A-CENTER, INC., d/b/a/ Rent-A-Center, and RENT-A-CENTER EAST, INC., f/k/a Rent-A-Center, Inc., d/b/a/ Rent-A-Center, Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, Hon. Anne C. Conway, District Judge _____________________________________________________ BRIEF OF AMICUS CURIAE THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF APPELLANT AND REVERSAL _____________________________________________________ JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Appellate Attorney Strauss v. Rent-A-Center, Inc., No. 05-16401 C-1 of 2 Certificate of Interested Persons Amicus Curiae the U.S. Equal Employment Opportunity Commission submit this list, pursuant to Eleventh Circuit Rules 26.1-1 and 29-2, of trial judges, attorneys, persons, associations of persons, firms, partnerships, and/or corporations known to have an interest in the outcome of this appeal: Hon. Anne C. Conway, District Judge Lynette Andujar Strauss, Plaintiff-Appellant Kathryn S. Piscitelli, Counsel for Plaintiff-Appellant Joseph Egan, Jr., Counsel for Plaintiff-Appellant Egan, Lev, & Siwicka, P.A., Counsel for Plaintiff-Appellant James L. Lee, Deputy General Counsel, U.S. E.E.O.C. Vincent J. Blackwood, Acting Associate General Counsel, U.S. E.E.O.C. Lorraine C. Davis, Assistant General Counsel, U.S. E.E.O.C. James M. Tucker, Appellate Attorney, U.S. E.E.O.C. Rent-A-Center, Inc., d.b.a. Rent-A-Center, Defendant-Appellee Rent-A-Center East, Inc., f.k.a. Rent-A-Center, Inc., d.b.a. Rent-A-Center, Defendant-Appellee Robert Francois Friedman, Counsel for Defendants-Appellees Strauss v. Rent-A-Center, Inc., No. 05-16401 C-2 of 2 Scott Alan Forman, Counsel for Defendants-Appellees Littler Mendelson, P.A., Counsel for Defendants-Appellees Pursuant to Federal Rules of Appellate Procedure Rule 26.1, Amicus Curiae the U.S. Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Table of Contents Certificate of interested persons. . . . . . . . . . . . . . .C-1 Table of citations . . . . . . . . . . . . . . . . . . . . . . ii Statement of interest. . . . . . . . . . . . . . . . . . . . . .1 Statement of the issue . . . . . . . . . . . . . . . . . . . . .2 Statement of the case. . . . . . . . . . . . . . . . . . . . . .3 A. Statement of the facts . . . . . . . . . . . . . . . .3 B. District court decision. . . . . . . . . . . . . . . .7 Summary of the argument. . . . . . . . . . . . . . . . . . . . .9 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 The District Court Erred In Concluding That The Consent Decree Entered In Wilfong To Resolve Claims Of Sex Discrimination Served As A Bar To Strauss' Claim Of Retaliation. . . . . . . . . . . . . . . . . 10 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Certificate of compliance Addendum Wilfong v. Rent-A-Center, Inc., No. 00-680, Second Amended Class Action Complaint (S.D. Ill.) (filed Aug. 16, 2001) Wilfong v. Rent-A-Center, Inc., No. 00-680, Intervenor's Complaint (S.D. Ill.) (filed Mar. 12, 2001) Certificate of service Table of Citations Cases Page(s) Dosier v. Miami Valley Broad. Corp., 656 F.2d 1295 (9th Cir. 1981) . . . . . . . . . . . . . . 12 In re: Piper Aircraft Corp., 244 F.3d 1289 (11th Cir. 2001). . . . . . . . . . . . . . 10 *Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285 (11th Cir. 2004). . . . . . . . . . . . passim Strauss v. Rent-A-Center, Inc. & Rent-A-Center East, Inc., No. 04-1133, Order (M.D. Fla. Oct. 17, 2005).7, 8, 9, 16, 17 *United States v. Armour & Co., 402 U.S. 673, 91 S. Ct. 1752 (1971) . . . . . . . 11, 13, 17 *United States v. Miami, 664 F.2d 435 (5th Cir. 1981). . . . . . . . . . . . . . . 11 Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677 (11th Cir. 1999) . . . . . . . . . . . . . . 19 Statement of Interest The U.S. Equal Employment Opportunity Commission is the federal agency vested with authority to enforce Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq, and other federal laws prohibiting employment discrimination. The instant appeal presents this Court with questions of critical importance to the Commission's enforcement efforts, as it involves a consent decree entered into by the Commission in a separate enforcement action, and the determination of whether the entry of the decree should operate to bar separate claims brought by a person covered by the decree. This issue is also of significant interest to the Commission as a drafter of, and party to, the consent decree at the heart of the instant appeal. The Commission has a significant interest in this issue because consent decrees are important tools frequently employed by the Commission to effectuate its enforcement duties under Title VII and other federal antidiscrimination laws. For these reasons, the Commission respectfully offers its views to this Court. Statement of the Issue Whether the district court erred when it concluded that the consent decree entered in the class action Wilfong v. Rent-A-Center, Inc., No. 00-680 (S.D. Ill.), to resolve claims of sex discrimination precludes the plaintiff-appellant's assertion of retaliation claims on the basis of the doctrines of res judicata and accord and satisfaction. Statement of the Case A. Statement of the facts<1> Lynette Andujar Strauss began her employment with Rent-A-Center in November 1999, and from October 2000 until her termination in November 2001 she worked as a Sales Manager at several Rent-A-Center locations in the Orlando, Florida area.<2> District Court Docket No. ("R.") 2, ¶ 4. On February 2, 2002, Strauss filed a charge with the Commission and the Florida Commission on Human Relations, alleging Rent-A-Center had subjected her to a sexually hostile work environment, and that she was fired in retaliation for complaining about the mistreatment of women, including herself, in her workplace. R.38, Exs. 8-9. During the Commission's processing of Strauss' charge, the Commission intervened in a nationwide sex discrimination class action against Rent-A-Center. See Wilfong & EEOC v. Rent-a-Center, Inc., No. 00-680, Intervenor's Complaint (S.D. Ill.) (filed Mar.12, 2001) (attached at Addendum pp. 28-33). In July 2002, a notice of proposed settlement of the class action was sent to all of the class members—women who were employed, had applied for employment, or were deterred from applying for employment with Rent-A-Center between April 19, 1998, and June 19, 2002. R.33, Ex. B, at 3. The notice provided that "[t]his particular class action involves sex discrimination and sexual harassment claims," and that the class was defined to consist of women who "have been, are being or may in the future be adversely affected by a continuing alleged policy of discrimination . . . because of their sex." Id. (emphasis added). The notice further provided that individuals could opt out of the class action, but "[i]f you choose to remain a member of the class, you will release all claims you have against Rent-A-Center for sex discrimination. You may not continue any sex discrimination case you currently have against Rent-A-Center, Inc. or file a new one for any claims of sex discrimination." Id. at 7 (emphasis added). The notice also provided a much broader release of claims for "Named Plaintiffs" (as distinct from the vast majority of unnamed class members), who were required to "release not only all sex discrimination claims, but all other employment claims against Rent-A-Center, Inc." Id. (emphasis added). The notice made no mention of unnamed class members alleging retaliation by Rent-A-Center, or releasing any such retaliation claims. Strauss, an unnamed class member, received this notice of the class action and did not opt out. R.38, ¶ 5-9. On October 4, 2002, a consent decree was approved by the district court and entered in the class action, resolving all current claims of sex discrimination in exchange for a monetary award of $47 million to the named and unnamed class members, as well as injunctive relief. R.33, Ex. C. The consent decree described the class complaints as alleging that Rent-A-Center violated Title VII by "discriminating against female employees and applicants for employment in hiring, promotion, discharge, constructive discharge, harassment, and in a range of terms and conditions of employment." Id. at 5. The consent decree defined its scope as covering the class of "all women who have been employed by [Rent-A-Center] . . . as well as any women who have made application for employment or been deterred from making application for employment with [Rent-A-Center] . . . and who have been, are being or may in the future be adversely affected by a continuing alleged policy of discrimination with regard to hiring, promotion, demotion, termination, sexual harassment, hostile work environment and terms and conditions of employment because of their sex." Id. at 8 (emphasis added). Neither of these components of the consent decree made any mention of unlawful retaliation by Rent-A-Center. Most significantly, the consent decree's "Release of Claims" provides the following: This Decree resolves all claims against [Rent-a-Center] arising out of the Complaints filed in these actions, and includes all claims of sex discrimination under Title VII that were made or could have been made by Class Members. . . . It includes all claims that could be made by Class Members in Wilfong, et al. of unlawful hiring, promotion, demotion, working conditions, harassment or termination for which a remedy is provided under this decree. . . . It does not include claims in any charges that may be pending with EEOC that raise claims of discrimination other than sex discrimination. Id. at 57 (emphasis added).<3> At the time the consent decree was entered by the district court in the class action, Strauss' retaliation charge against Rent-A-Center was pending with the Commission. See R.33, Ex. A (consent decree entered on October 4, 2002); R.38, Ex. 9 (Strauss' charge of discrimination filed with the Commission on Feb. 11, 2002). In July 2004, the Commission ceased processing Strauss' charge and issued her a right to sue letter. R.38, Ex. 10. Strauss then brought suit in Florida state court, alleging sex discrimination in the terms and conditions of her employment, sexual harassment, and that she had been terminated in retaliation for complaining of the discrimination and harassment. R.1, Ex. A. Rent-A-Center informed Strauss that her claims were barred under the Wilfong consent decree. Because she had failed to effectively opt out of the Wilfong class action, Strauss withdrew her sex discrimination and sexual harassment allegations, leaving only her claim of retaliation.<4> Id. The suit was subsequently removed to the United States District Court for the Middle District of Florida, where Strauss alleged only her claim of retaliation. R.19, ¶ 10-12, 29. B. District court decision In its ruling granting Rent-A-Center's motion for summary judgment, the court concluded that Strauss' retaliation claim was barred by the doctrines of res judicata, accord and satisfaction, and judicial estoppel. In its application of the doctrine of res judicata, the district court concluded that as a result of the Wilfong consent decree, all the requirements for application of the doctrine were met—there was a final judgment on the merits rendered by a court of competent jurisdiction, the parties in both suits were identical, and both suits involved the same cause of action. Strauss v. Rent-A-Center, Inc. & Rent-A-Center East, Inc., No. 04-1133, Order, at 7-11 (M.D. Fla. Oct. 17, 2005) ("Order"). The court focused its analysis specifically on the final element, noting that Strauss' retaliation claim arose out of the "same operative nucleus of fact" as her sex discrimination claim. Id. at 9. The court found that the notice of settlement in the Wilfong class action provided that the class action covered all women who may be "adversely affected by a continuing alleged policy of discrimination with regard to hiring, promotion, demotion, termination, sexual harassment, hostile work environment and terms and conditions of employment because of their sex," and the court interpreted this language to be sufficiently broad to include Strauss' retaliation claim. Id. The court further found that the parties contemplated that retaliation claims would be covered by the consent decree because the injunctive relief portion of the consent decree included protections against retaliation. Id. at 10. The court also found that the consent decree's release of claims provision operated to release unnamed class members' retaliation claims, based on the language therein stating that the consent decree "‘resolves all claims against [Rent-A-Center] arising out of the complaints filed in these actions.'" Id. (quoting R.33, Ex. C, at 57) (italics added by court). The court determined that this amounted to the consent decree "specifically cover[ing] the retaliatory acts alleged by Plaintiff." Id. While the court directly quoted the release section of the consent decree in support of its ruling, it made no mention of the consent decree's specific provision, in the same paragraph, that the release "does not include claims in any charges that may be pending with EEOC that raise claims of discrimination other than sex discrimination." R.33, Ex. C., p. 57. The court concluded that "the types of harms alleged by Plaintiff were accounted for and adjudicated in Wilfong," and therefore her retaliation claim was precluded on the basis of res judicata. Order at 11. The court also concluded that Strauss' claim was barred by the doctrine of accord and satisfaction because she received payment from Rent-A-Center under the consent decree for claims covered by the decree, which included her retaliation claim. Id. at 11-12. The court further concluded that Strauss' claim was barred by the doctrine of judicial estoppel because she had failed to report the instant lawsuit in her concurrent bankruptcy action. Id. at 12-17. Summary of the Argument The district court erred when it determined on summary judgment that the Wilfong consent decree precluded the retaliation claims of unnamed class members, including Strauss, on the basis of the doctrine of res judicata. The res judicata effect of a consent-based judgment such as a settlement or consent decree is limited to the claims the parties to the agreement intended to resolve, as discerned using standard principles of contract interpretation and limiting review of an unambiguous agreement to the plain language contained within its four corners. It is uncontested that the consent decree is unambiguous, and the plain language of that document clearly shows that it only released unnamed class members' claims of sex discrimination. The court's interpretation that the decree operated to release all claims is not supported by the plain language of the consent decree, and is in conflict with this Court's prior decisions limiting the res judicata effect of consent-based judgments to their express terms. The district court further erred when it determined that Strauss' retaliation claim is barred by the doctrine of accord and satisfaction. The consent decree was not an agreement to release unnamed class members' retaliation claims, and therefore that agreement—and Strauss' receipt of payment pursuant thereto—cannot be construed as an accord and satisfaction of her retaliation claim. Argument The District Court Erred In Concluding That The Consent Decree Entered In Wilfong To Resolve Claims Of Sex Discrimination Served As A Bar To Strauss' Claim Of Retaliation. The doctrine of res judicata provides that a final judgment on the merits bars the parties from relitigating a claim that was or could have been raised in the prior action. In re: Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). Typically, res judicata precludes "not only the specific claims brought in a complaint, but any other claims that ‘stem out of the same nucleus of operative fact, or [are] based upon the same factual predicate.'" Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1290 (11th Cir. 2004) (quoting in part Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999)). A court's typical determination of the res judicata effect of a prior adjudication requires examining a variety of factors, including "whether the later claims involve the same statutes, evidence, events or occurrences, parties, and witnesses." Id. The doctrine may only be applied if all of the following elements are present: the prior decision was rendered by a court of competent jurisdiction, there was a final judgment on the merits, both cases involve the same parties or their privies, and both cases involve the same cause of action. Id. This Court has recognized, however, that when the prior adjudication was the result of a settlement, "the principles of res judicata apply (in a somewhat modified form) to the matters specified in the settlement agreement," confining the scope of the settlement to those claims which the parties expressly agreed to resolve, and not other claims. Id. at 1288 (citing in part United States v. Miami, 664 F.2d 435, 440 (5th Cir. 1981) (en banc) (Rubin, J. concurring)). This analysis applies with equal force in the "closely related context of consent decrees," id., which are in essence settlements which bear the imprimatur of the court, Miami, 664 F.2d at 441. See also United States v. Armour & Co., 402 U.S. 673, 681, 91 S. Ct. 1752, 1757 (1971) ("Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation."). In attempting to determine the res judicata effect of a consent-based judgment, the court must give effect to the parties' intent. Norfolk, 371 F.3d at 1289. For this reason, judgments resulting from settled claims are interpreted, for res judicata purposes, according to their express terms rather than the more broad traditional res judicata factors. Id. at 1291. "To preclude a wider range of matters than those specified in the agreement would frustrate the parties' express intent and bestow upon [the defendant] a windfall of immunity from litigation." Id. "When a defendant signs a settlement agreement stating that only some claims will be precluded in the future, it is as if the defendant is preemptively waiving any potential res judicata defense he would have as a result of the dismissal to which the parties consent under the agreement. . . . [A] concomitantly created settlement agreement may fairly be read as waiving certain res judicata rights to which dismissal would otherwise give rise." Id. at 1289. See also Dosier v. Miami Valley Broad. Corp., 656 F.2d 1295, 1298-99 (9th Cir. 1981) (class action settlement of discrimination claims, including claim of retaliation, did not bar, under doctrine of res judicata, class member's retaliation claim which was not referenced in the settlement). The scope of the preclusive effect of a consent decree or settlement, in turn, must be determined by the agreement's terms, as interpreted in accordance with traditional principles of contract law. See Norfolk, 371 F.3d at 1289 (citing Barber v. Int'l Bhd. of Boilermakers, 778 F.2d 750, 758 (11th Cir. 1985) ("[W]e respect the parties' clear contractual intent . . . to give the release preclusive effect.")); see also id. at 1291 ("‘Because the defendant has, by the [consent] decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written.'") (quoting Armour, 402 U.S. at 682, 91 S. Ct. at 1757) (alteration by this Court). That is, "[w]here the plain meaning of an agreement is clear, we may not go beyond the four corners of the document to look for additional evidence of the drafters' intentions."<5> Id. at 1290 (citing Restatement (Second) of Contracts, Ch. 9, introductory note (1981)); see also Armour, 402 U.S. at 681-82, 91 S. Ct. at 1757 ("[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it."). Based upon the foregoing well-settled jurisprudence—of which the district court made no mention in its decision—the district court erred as a matter of law in concluding that Strauss' retaliation claim was barred by the doctrine of res judicata on the basis of the Wilfong consent decree. The "Release of Claims" provision of the consent decree explicitly excludes "claims in any charges that may be pending with EEOC that raise claims of discrimination other than sex discrimination." R.33, Ex. C, at 57. The plain language of the decree makes abundantly clear that the release of claims contained therein does not release discrimination claims that were then pending with the Commission—including Strauss' claim of retaliation—and operates as a waiver by Rent-A-Center of its right to assert res judicata as a defense to any such claims. See Norfolk, 371 F.3d at 1289 (settlement operates as waiver of res judicata rights to which dismissal, absent settlement, would otherwise give rise). The district court completely ignored this critical language in the consent decree—language that plainly and clearly displays the parties' intent that the consent decree not operate to release claims which were then pending with the Commission, other than sex discrimination claims. As a result, the court's interpretation of the consent decree as releasing Strauss' then-pending retaliation claim is completely undermined by and fully at odds with the clearly expressed intent of the parties. The court's interpretation cannot be reconciled with the release's plain language. The plain, unambiguous language of the remainder of the consent decree also makes clear that the parties intended that the claims released therein by unnamed class members, such as Strauss, were claims of sex discrimination, not retaliation. The consent decree states that the class complaints giving rise to the litigation contained allegations of Rent-A-Center's sex-based discrimination against women. R.33, Ex. C, at 8. Cf. Wilfong v. Rent-A-Center, Inc., No. 00- 680, Second Amended Class Action Complaint (S.D. Ill.) (filed Aug. 16, 2001) (no claims of retaliation presented; only claims of sex discrimination) (attached at Addendum pp. 1-27); Wilfong v. Rent-A-Center, Inc., No. 00-680, Intervenor's Complaint (S.D. Ill.) (filed Mar. 12, 2001) (same) (attached at Addendum pp. 28- 33). The consent decree defined its scope as the class of "all women who have been employed by [Rent-A-Center] . . . as well as any women who have made application for employment or been deterred from making application for employment with [Rent-A-Center] . . . and who have been, are being or may in the future be adversely affected by a continuing alleged policy of discrimination with regard to hiring, promotion, demotion, termination, sexual harassment, hostile work environment and terms and conditions of employment because of their sex." R.33, Ex. C, at 8 (emphasis added). The release of claims in the consent decree expressly states that the consent decree "resolves all claims against [Rent-a- Center] arising out of the Complaints filed in these actions," and, as discussed above, the complaints filed in the class action only presented claims of sex discrimination. Furthermore, the limited scope of the release the parties intended for unnamed class members, such as Strauss, is even more evident when that release is compared to the much broader release of claims made by Named Plaintiffs in the class action.<6> In contrast to unnamed class members, Named Plaintiffs were required to "release not only all sex discrimination claims, but all other employment claims against Rent-A-Center, Inc." Id. at 7 (emphasis added). The language of the broader release for Named Plaintiffs clearly demonstrates that the parties to the decree contemplated that the claims being released by class members varied depending on their status. Specifically, unnamed class members released only sex discrimination claims and not other employment discrimination claims, and only the Named Plaintiffs released all employment discrimination claims—including retaliation claims. The district court attempted to bolster its contrary interpretation by pointing to the consent decree's injunctive relief provision. Order at 9-10. The court concluded that, because the consent decree included an injunction against future retaliation by Rent-A-Center, "retaliation is a claim that was contemplated by the parties" and was therefore a claim released by the consent decree. Id. at 10. The court's analysis and conclusion are, again, incorrect and at odds with the plain language of the consent decree. A prohibition against future retaliation, which is routinely included in Commission consent decrees, cannot be said to function as a prospective bar to Strauss' retaliation claim, as it has absolutely no bearing on the scope of the claims expressly covered by and released in the consent decree. Moreover, such an interpretation flies in the face of the aforementioned unambiguous language in the consent decree which makes clear that the only claims presented in the class action lawsuit were claims of sex discrimination, and sex discrimination claims were the only claims released by unnamed class members. On the basis of the plain, clear, and unambiguous language in the consent decree, it is impossible to come to the conclusion that the consent decree releases, or that the parties intended it to release, unnamed class members' claims—including claims of retaliation—beyond the sex discrimination claims presented in the Wilfong class action. The district court's conclusion to the contrary is without legal or factual support. The district court also erred by venturing beyond the four corners of the consent decree to garner support for its conclusion that the consent decree released retaliation claims. See id. at 9 (examining the "Notice of Proposed Class Action Settlement" as an aid to its interpretation of the consent decree); see also Armour, 402 U.S. at 681-82, 91 S. Ct. at 1757 ("the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it"); Norfolk, 371 F.3d at 1290 (same). In any event, rather than supporting the district court's conclusion, the language of the prior notice provided to class members leaves no doubt that the parties intended that unnamed class members like Strauss would only release claims of sex discrimination. The notice explicitly stated that "this particular class action involves sex discrimination and sexual harassment claims," and identified the class of women as applicants, employees, or former employees of Rent-A-Center who "have been, are being or may in the future be adversely affected by a continuing alleged policy of discrimination . . . because of their sex." R.33 Ex. B, at 3 (emphasis added). The notice also explicitly stated that "if you choose to remain a member of the class, you will release all claims you have against Rent- A-Center for sex discrimination. You may not continue any sex discrimination case you currently have against Rent-A-Center, Inc. or file a new one for any claims of sex discrimination." Id. at 7 (emphasis added). This notice makes repeated, explicit reference to sex discrimination claims, but no reference to claims of any other sort, including retaliation, and provides no support for the court's interpretation of the consent decree as releasing unnamed class members' retaliation claims. In sum, for res judicata purposes, the preclusive effect of the consent decree must be determined based upon the express terms of the decree, not on the more typical "nucleus of operative fact" approach. Norfolk, 371 F.3d at 1290-91. Applying the proper plain-language examination to the express terms of the consent decree, it is abundantly clear that the decree provides for the release of sex discrimination claims, but not retaliation claims, and as such amounts to a preemptive waiver by Rent-A-Center as to any res judicata defense to retaliation claims by unnamed class members. The district court's contrary interpretation of the consent decree is wholly inconsistent with the parties' clear contractual intent, as unambiguously expressed in the plain language of the decree, and is untenable under this Court's jurisprudence guiding the interpretation of the res judicata effect of consent-based judgments. The district court also erred as a matter of law in concluding that the doctrine of accord and satisfaction barred Strauss' retaliation claim because, the court concluded, the consent decree operated as a release of Strauss' retaliation claim. As this premise is incorrect for the reasons described above, the conclusion is equally flawed. "An accord and satisfaction occurs where (1) the parties intend to effect a settlement or resolve an existing dispute by entering into an agreement, and (2) the parties have engaged in actual performance in relation to the new agreement in order to resolve or settle the dispute." Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677, 682 (11th Cir. 1999) (quoting Pogge v. Dep't of Revenue, 703 So. 2d 523, 526 (Fla. Dist. Ct. App. 1997)). The plain, unambiguous terms of the Wilfong consent decree make clear that it only resolved unnamed class members' sex discrimination claims, and operated to release only those claims—and not retaliation claims. See supra, at 10-19. As there has been no "accord" as to the retaliation claims of unnamed class members, the doctrine of accord and satisfaction simply cannot serve as an affirmative defense to Strauss' retaliation claim. The district court's analysis is based on a fallacious premise that cannot support the court's conclusion. Conclusion For the foregoing reasons, the Commission respectfully requests that this Court reverse the district court's determination that Strauss's retaliation claims are barred by the doctrines of res judicata and accord and satisfaction as a result of the Wilfong consent decree. Respectfully submitted, JAMES L. LEE ______________________ Deputy General Counsel JAMES M. TUCKER VINCENT J. BLACKWOOD Appellate Attorney Acting Associate General Counsel U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Compliance I certify that this brief complies with the type-volume limitations set forth in Fed. R. App. P. 32(a)(7)(B) and Eleventh Circuit Rule 32-4. This brief contains 4,452 words, from the Statement of Interest through the Conclusion, as determined by the Word Perfect 9 word-counting program, and was prepared using the WordPerfect 9.0 word-processing system in 14-point proportionally spaced type for text and 14-point type for footnotes. __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Addendum Certificate of Service I hereby certify that one original and six copies of the foregoing brief were sent this 13th day of March, 2006, by FedEx Next Day Air, postage prepaid, to the Clerk of this Court. I further certify that one copy of the foregoing brief was sent this 13th day of March, 2006, by FedEx Next Day Air, postage prepaid, to the following counsel of record for Plaintiff-Appellant and Defendant-Appellee: Kathryn S. Piscitelli, Esq. Egan, Lev & Siwica, PA 231 E. Colonial Dr. Orlando, FL 32801 Robert Francois Friedman, Esq. Littler Mendelson, P.C. 2001 Ross Ave., Ste. 2600 Dallas, TX 75201 __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 Office of General Counsel March 13, 2005 VIA FEDEX NEXT DAY AIR DELIVERY Thomas K. Kahn, Clerk U.S. Court of Appeals for the Eleventh Circuit 56 Forsyth St. N.W. Atlanta, Georgia 30303 Re: Strauss v. Rent-A-Center, Inc., Appeal No. 05-16401 Mr. Kahn, Please find enclosed for filing on the above-referred appeal one original and six copies of the Amicus Curiae brief of the U.S. Equal Employment Opportunity Commission, with attached certificate of service of this brief on counsel for Plaintiff-Appellant and Defendant-Appellee. Also, please find enclosed my notice of appearance on behalf of the Commission in this matter, as well as my certificate of service of this notice on counsel for Plaintiff-Appellant and Defendant-Appellee. Thank you, and please do not hesitate to contact me if you have any questions or concerns regarding this filing. Sincerely, James M. Tucker Appellate Attorney U.S. Equal Employment Opportunity Commission Office of General Counsel, Appellate Services Division 1801 L. St., N.W., Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@eeoc.gov Enclosures cc (w/encl.): Kathryn Piscitelli, Esq.; Robert Friedman, Esq. Certificate of Service I hereby certify that one copy of my Notice of Appearance in this matter was sent this 13th day of March, 2006, by FedEx Next Day Air, postage prepaid, to the following counsel of record for Plaintiff-Appellant and Defendant-Appellee: Kathryn S. Piscitelli, Esq. Egan, Lev & Siwica, PA 231 E. Colonial Dr. Orlando, FL 32801 Robert Francois Friedman, Esq. Littler Mendelson, P.C. 2001 Ross Ave., Ste. 2600 Dallas, TX 75201 __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ***************************************************************************** <> <1> The Commission expresses no opinion as to the district court’s conclusion that Strauss’ suit is barred by the doctrine of judicial estoppel. For this reason, this statement of the facts only includes information relevant to the district court’s conclusion that Strauss’ retaliation claim is barred by the doctrines of res judicata and accord and satisfaction. <2> Defendants-Appellees Rent-A-Center, Inc. and Rent-A-Center East, Inc. are jointly referenced herein as “Rent-A-Center.” <3> The complaints in the class action only presented allegations of sex discrimination, not retaliation. See Wilfong v. Rent-A-Center, Inc., No. 00-680, Amended Class Action Complaint (S.D. Ill.) (filed Oct. 10, 2000) (attached at Addendum pp. 1-27); Wilfong v. Rent-A-Center, Inc., No. 00-680, Intervenor’s Complaint (S.D. Ill.) (filed Mar. 12, 2001) (attached at Addendum pp. 28-33). <4> Strauss’ total compensation under the Wilfong consent decree was $150, the base award for unnamed class members. See R.38 ¶ 13; R.33 Ex. C, at 12,19. <5> There is no argument that the consent decree is ambiguous. Accordingly, any inquiry into the parties’ preclusive intent for the agreement, for res judicata purposes, must be limited to the plain, clear language expressed within its four corners. Norfolk, 371 F.3d at 1289-90. <6> It is uncontested that Strauss was not a Named Plaintiff in the class action, and that the consent decree’s distinct, more broad release of all discrimination claims by Named Plaintiffs did not apply to her.