EEOC & Rollins v. Woodmen of the World Life Ins. Soc. (8th Cir.) Brief as appellee June 7, 2006 ____________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ____________________________________________________ No. 06-1522 ____________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and LOUELLA ROLLINS, Plaintiff-Intervenor-Appellee, v. WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, and/or OMAHA WOODMEN LIFE INSURANCE SOCIETY, Defendant-Appellant. ____________________________________________________ On Appeal from the United States District Court for the District of Nebraska ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ____________________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7040 Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . .ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iii SUMMARY OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3 A. Nature of the Case and Course of Proceedings. . . . . . . . 3 B. Statement of Facts Relevant to Discrimination . . . . . . . 5 C. Statement of Facts Relevant to Arbitration . . . . . 6 D. District Court's Decisions . . . . . . . . . . . . . 7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 THE DISTRICT COURT SHOULD NOT STAY LITIGATION OF THE COMMISSION'S PUBLIC ENFORCEMENT ACTION PENDING ARBITRATION OF ROLLINS'S PRIVATE CLAIMS. . . . . . . . 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . .17 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . 10 Connecticut Gen. Life Ins. Co. v. Sun Life Asssurance Co., 210 F.3d 771 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . 13 Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984). . . . . 14 EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280 (11th Cir. 2004) 14 EEOC v. Rappaport, Hertz, Cherson & Rosenthal, 273 F. Supp. 2d 260 (E.D.N.Y. 2003). . . . . . . . . . . . . . . . . . . . . passim EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . 2, 7, 11, 16 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) . . . 10, 12 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). . . . . . . . . . . . . . . . . . . .7 United States v. Allegheny-Ludlum Industries, 517 F.2d 826 (5th Cir. 1975) . . . . . . . . . . . . . . 12 Statutes 9 U.S.C. § 16(a)(1)(C) . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . .2 . . . . . . . . . . . . . . . . . . § 1343(a)(4)2 § 1345. . . . . . . . . . . . . . . . . . . .2 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . . .1 § 2000e-5(f)(3) . . . . . . . . . . . . . . .2 SUMMARY OF THE CASE This is an interlocutory appeal from an order denying a motion to compel arbitration. The Equal Employment Opportunity Commission filed this enforcement action in April 2003 alleging that the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating against Louella Rollins based on her sex and retaliating against her for complaining about discrimination. Rollins intervened, and the defendant responded by invoking the arbitration clause in Rollins's 1997 employment contract. After first ordering Rollins to arbitrate, the district court granted reconsideration and denied defendant's request for an order compelling arbitration. The defendant here appeals from that decision. In addition, the defendant asks this Court to direct the district court to stay the litigation of the Commission's enforcement action pending arbitration of Rollins's individual claims. The Commission submits this brief to argue that the agency's enforcement action should not be stayed pending arbitration. The Commission believes that oral argument is not necessary to resolve the issues presented by this appeal. However, if the Court schedules argument, the Commission would like the opportunity to participate to address the question of the impact of the arbitration agreement on the Commission's enforcement action. STATEMENT OF JURISDICTION The district court had subject matter jurisdiction over this EEOC enforcement action pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1345, and 42 U.S.C. § 2000e-5(f)(3). This Court has jurisdiction over this appeal pursuant to § 16(a)(1)(C) of the Federal Arbitration Act. 9 U.S.C. § 16(a)(1)(C). The district court issued its order denying defendant's motion to compel the plaintiff- intervenor to arbitrate her claims against the company on August 20, 2005. Docket entry 107 ("R-107") (Addendum, pp. 29-32 ("Add-pp29-32")). On September 9, the defendant filed a timely motion to alter or amend the judgment, R-112 (Appendix, tab 12 ("App-T12")), and the district court denied that motion in an order entered February 3, 2006. R-130 (Addendum, tab 4 ("Add-T4")). The defendant filed a timely notice of appeal on February 13. R-132 (App-T15). STATEMENT OF THE ISSUE Whether the district court, assuming arguendo that it compels Rollins to arbitrate her claims against Woodmen, should stay the litigation of the Commission's enforcement action pending the arbitration of Rollins's claims. EEOC v. Rappaport, Hertz, Cherson & Rosenthal, 273 F. Supp. 2d 260 (E.D.N.Y. 2003); EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings The EEOC commenced this Title VII enforcement action in April 2003, alleging that Woodmen of the World Insurance Society discriminated against Louella Rollins and subjected her to a hostile work environment based on her sex, and retaliated against her for complaining about the discrimination. R-1, 10 (App- T2). Woodmen moved to dismiss the agency's complaint, arguing that Rollins's charge was not timely. R-16. The district court granted Rollins's motion to intervene as a plaintiff in October 2003, and Woodmen then moved to dismiss Rollins's claims or to stay them pending arbitration. R-27 (App-T3), 29; R-36 (App-T5). In March 2004, the district court denied Woodmen's motion to dismiss the Commission's complaint. R-48. Woodmen sought an interlocutory appeal, but this Court denied the company's petition in May 2004, and Woodmen filed an answer to the Commission's complaint in June. R-58, 61, 64. In August 2004, the district court denied Woodmen's motion to dismiss Rollins's claims, but granted the company's motion to compel Rollins to arbitrate. R-65 (Add-T3). In October and November 2004, Rollins and Woodmen signed a document entitled "Agreement to Binding Arbitration." Add-T2. The agreement acknowledged the existence of the Commission's enforcement action and set forth certain procedures and deadlines by which Rollins and Woodmen agreed to abide in arbitrating Rollins's claims, if the parties were unable to resolve them first in mediation. In May 2005, Rollins, now represented by new counsel, moved to amend the court's order compelling arbitration, and in June 2005 Woodmen filed a renewed motion to compel arbitration. R-76 (App-T8), 85, 92, 99 (App-T10). During this period the parties also took four depositions in an effort to facilitate mediation. R-67, p. 9. In July 2005, Rollins filed a bankruptcy petition under Chapter 7 in the Middle District of Pennsylvania (No. 05-bk-0445). In August 2005, the district court granted Rollins's motion to amend its August 2004 order, and denied Woodmen's motion to compel arbitration of Rollins's claims. R-107 (Add-pp29-32). In September the company moved to amend that order, appealed, and sought a stay pending appeal, and the district court referred the case to the Bankruptcy Court for the District of Nebraska. R-109, 112 (App-T12), 117 (App- T14). In October 2005, the district court withdrew the referral to the Bankruptcy Court in Nebraska and stayed the case pending action by the Bankruptcy Court for the Middle District of Pennsylvania. R-120. In December the Pennsylvania court exempted this litigation from the automatic stay. R-129. On February 3, 2006, the district court entered an order denying Woodmen's motion to amend the court's August 2005 order denying arbitration, re-issuing that order, and denying the company's motion for a stay pending appeal. R-130 (Add-T4). On February 14, Woodmen filed an amended notice of appeal. R-132 (App-T15). B. Statement of Facts Relevant to Discrimination The complaint alleges that, beginning in 1994, Louella Rollins, who was then Woodmen's state manager for Pennsylvania, was subjected to a campaign of sex-based harassment by Ted Guminey, one of her subordinates, who resented being supervised by a woman. The complaint alleges that Guminey took many actions designed to humiliate Rollins, undermine her authority and remove her from her management position. He harassed her sexually, spread false rumors about her, and prevented the unit she supervised from meeting its performance goals. R-10, ¶¶ 10-14. When Rollins complained to Woodmen officials about Guminey's sexual harassment of her, the company failed to investigate and stop the harassment. R-10, ¶¶ 16-17. In September 1998, Rollins sought permission to fire Guminey, but Woodmen suggested that she step down instead. R-10, ¶ 18. On December 4, 1998, Rollins filed a formal complaint with Woodmen's EEO office, and on December 10 Woodmen imposed unrealistic production requirements on her and threatened her with termination. R-10, ¶¶ 26-28. In February 1999, Woodmen demoted Rollins to Area Manager. R-10, ¶ 29. C. Statement of Facts Relevant to Arbitration In late June 1997, Rollins signed an employment contract with Woodmen setting forth her authority, responsibilities and remuneration as state manager. Add-T1. In that contract Rollins and Woodmen agreed to resolve any claims either had against the other, including statutory discrimination claims, by binding arbitration, if they were unable to resolve them first in an internal company appeal process or in mediation. Add-p5. The agreement barred class actions and required Rollins to pay her own attorney's fees and half the costs of arbitration unless the arbitrator ordered otherwise "consistent with applicable law." Add-p5. In August 2004, the district court ordered Rollins to arbitrate her claims against Woodmen. App-p22. Pursuant to that order, in late October and early November 2004, Rollins and Woodmen signed a document entitled "Agreement to Binding Arbitration." Add-T2. The agreement stated that the parties desired to amend the arbitration provisions in Rollins's employment contracts. Add-p7. The agreement acknowledged that the Commission had sued Woodmen, that Rollins had intervened and lodged a "crossclaim" against the company, and that the district court had stayed litigation of the crossclaim and ordered Rollins to resolve her claims against the company in arbitration. Add-p7. The agreement named the arbitrator the parties would use and established the procedures and timelines they would follow. Add-pp8-11. It required Rollins to pay half the costs of arbitration (including the arbitrator's fees), with no provision for the arbitrator to order otherwise in compliance with applicable law. Add-p11. D. District Court's Decisions In an order dated August 17, 2004, the district court conducted the two-part inquiry established in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985), for determining the enforceability of arbitration agreements governed by the Federal Arbitration Act. Add-T3. The court ruled that the 1997 employment agreement Rollins signed contained a valid agreement calling for the arbitration of her Title VII claims against the company, and implicitly ruled that there were no independent legal constraints rendering that agreement unenforceable. Add-pp21-22. The court accordingly ordered Rollins to arbitrate her claims against the company, and stayed proceedings on her claims pending arbitration. App-p22. The court ruled, however, that the litigation of the Commission's claims should not be stayed pending arbitration of Rollins's claims. The court stated: [B]ecause the EEOC is not a party to the arbitration agreement between Rollins and Woodmen, they are [sic] not required to arbitrate their case against Woodmen. EEOC v. Waffl[e H]ouse, Inc., 534 U.S. 279, 294 (2002). A valid arbitration agreement between an employer and employee does not prevent the EEOC from vindicating the public interest. Id at 296. Therefore, I will not stay the EEOC's action . . . . (Add-p22). In an order entered August 25, 2005, the district court granted Rollins's motion to reconsider its earlier ruling regarding arbitration. The district court found that Rollins "does not have the funds to arbitrate this case," and, if not compelled to arbitrate, would be able to "piggyback" on "the discovery and litigation costs that will be paid by the EEOC." Add-p31. The court also agreed with the Commission that compelling an intervening charging party to arbitrate her Title VII claims would interfere with the statutory enforcement scheme. Add- p32. The district court therefore granted re-consideration and denied Woodmen's motion to compel arbitration of Rollins's claims. Add-p32. Woodmen asked the district court to re-consider this order denying arbitration, Add-p24, R-112, and the district court denied that motion in an order entered February 3, 2005. Add-pp24-28. The court also re-issued its August 2005 order to remove any doubt about its validity. Add-p27. SUMMARY OF ARGUMENT Woodmen argues in its brief that the district court should order Rollins to arbitrate her individual claims against the company, and stay the litigation of the Commission's claims pending that arbitration of Rollins's claims. The EEOC takes no position in this appeal on the former issue, but submits this brief to argue that if the district court compels Rollins to arbitrate her claims, it should not stay the litigation of the Commission's enforcement action pending that arbitration. The Commission has the statutory duty to enforce Title VII and the statutory authority to litigate its enforcement actions in federal court. Those enforcement actions serve the important public purpose of defining and combating unlawful employment discrimination. The Commission was not a party to either of the arbitration agreements that Woodmen seeks to enforce here, and the agency is therefore not bound by them. Nor does the agreement give Woodmen or the district court the right to sidetrack the Commission's public enforcement action while Woodmen and Rollins resolve her private claims. ARGUMENT THE DISTRICT COURT SHOULD NOT STAY LITIGATION OF THE COMMISSION'S PUBLIC ENFORCEMENT ACTION PENDING ARBITRATION OF ROLLINS'S PRIVATE CLAIMS. Woodmen argues in its brief that the district court should: (a) compel Rollins to arbitrate her claims against the company; and (b) stay the litigation of the Commission's enforcement action pending the resolution of that arbitration. Woodmen relies primarily on EEOC v. Rappaport, Hertz, Cherson & Rosenthal, 273 F. Supp. 2d 260 (E.D.N.Y. 2003). After noting that that court ordered the employee-intervenor to arbitrate her claims in that case, Woodmen states: "The EEOC enforcement action was stayed, pending the conclusion of the arbitration proceeding. Such a result is also the proper outcome in the present case." Appellant's Br. 19 (citation omitted). A significant problem with this portion of Woodmen's brief is that the company – again – misrepresents the relevant ruling in Rappaport.<1> Like the district court in its August 2004 order in this case (Add-p22), the Rappaport court in fact refused to stay the litigation of the Commission's claims pending the arbitration of the intervenor's claims, ruling that a private arbitration agreement should not "prevent the EEOC from vindicating the public interest." 273 F. Supp. 2d at 265. The Rappaport court's refusal to stay the Commission's action was correct. The EEOC's enforcement action serves an important public purpose, because it is designed to combat employment discrimination in the workplace. General Telephone Co. v. EEOC, 446 U.S. 318, 325-26 (1980); Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975). Even when the Commission seeks monetary relief for individual victims of discrimination, it is serving "‘the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.'" General Tel., 446 U.S. at 326. The Commission's authority to bring such enforcement actions is grounded in the federal statute, and the arbitration clauses in Woodmen's private agreements with Rollins do not entitle Woodmen to a delay of the EEOC's enforcement action. Rappaport, 273 F. Supp. 2d at 264-65 (a private arbitration agreement "does not prevent the EEOC from vindicating the public interest"); cf. Waffle House, 534 U.S. at 291-92, 294 (a private arbitration agreement "do[es] not require the agency to relinquish its statutory authority" to "proceed in a judicial forum"). The litigation of the Commission's enforcement action should therefore not be stayed. If this Court rules that Rollins should be compelled to arbitrate her claims against Woodmen, the district court must decide whether to allow the two proceedings – the litigation of the Commission's claims and the arbitration of Rollins's claims – to go forward simultaneously, or to stay the arbitration of Rollins's claims pending resolution in the district court of the Commission's enforcement action. Although that decision should be made by the district court in the first instance, the Commission notes several considerations counseling in favor of staying the arbitration of an intervenor's claims while the EEOC's claims are still pending, rather than allowing the two proceedings to go forward simultaneously. We start by noting that neither the statute nor the typical arbitration agreement expressly covers this situation. When Congress amended Title VII in 1972 to give the EEOC the authority to sue employers, it decided that once the Commission has filed an enforcement action, the charging party no longer has the right to institute an independent action against the employer, but she does have a statutory right to intervene in the Commission's enforcement action to protect her private interests, and ensure that the agency does not compromise those private interests in its pursuit of the public interest. General Tel., 446 U.S. at 325-26 (noting aggrieved person's right to intervene); U.S. v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 870 n.62 (5th Cir. 1975) (the charging party has an "unconditional right to intervene in order to protect his or her own interests in a § 706 suit brought by the Commission, which otherwise cuts off the private party's right to sue"). But Congress said nothing about whether the charging party should retain that right (to participate as a party in the Commission's enforcement action to protect her interests) if she has previously agreed to submit her claims against the company to arbitration. Similarly, the typical arbitration agreement commits the charging party to resolve any claims she has against her employer in arbitration, but makes no explicit provision for how she can or should protect her interests once the Commission has filed suit: that is, once her potential role as a litigant combines pursuing her claims against her employer and protecting herself against actions by the EEOC that she views as not adequately protecting her individual interests.<2> The district court should endeavor to accommodate, to the extent possible, both the statutory scheme and the intent of the contracting parties. This is difficult because the statute contemplates a single judicial proceeding that will resolve both the Commission's claims and the charging party's claims, while the typical arbitration agreement contemplates an arbitral proceeding to resolve the employee's claims and is silent with respect to the EEOC's claims. The disadvantages of allowing both proceedings to go forward simultaneously are apparent. It is inefficient to have the parties involved at the same time in two parallel proceedings in different fora addressing claims that will usually be legally and factually almost identical. See, e.g., Connecticut Gen. Life Ins. Co. v. Sun Life Assurance Co., 210 F.3d 771, 776 (7th Cir. 2000) ("To have the identical dispute litigated [in different fora at the same time] is a formula for duplication of effort . . . ."). This approach may also give the employer an unfair advantage over the Commission because the employer's attorneys may secure, in the course of discovery in the arbitral proceedings, a private preview of the sworn testimony of witnesses crucial to the EEOC's claims. This approach also threatens to yield inconsistent results no matter which proceeding finishes first: if the arbitration ends first, the Commission would not be bound by the result because it is not in privity with the charging party, and it might well continue to litigate if the arbitration yields no award for the charging party, or an award that the agency deems inadequate to serve the public interest. See, e.g., EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1286-91 (11th Cir. 2004) (EEOC enforcement action alleging racially hostile environment not barred by adverse jury verdict in action litigated against same employer by more than 20 black employees challenging same hostile environment, because EEOC was not in privity with the private plaintiffs), 1290-94 (government agency seeking to enforce federal law is rarely deemed bound by earlier private action) (collecting cases). If the litigation ends first (with, for example, a summary judgment order, a voluntary dismissal or a settlement), the charging party might well not be bound by that result (because under this scenario the district court would have stayed the litigation of her claims, so she would not have been an active party to the litigation), and would then be free to pursue her claims in the arbitral proceeding. Cf. Cooper v. Federal Reserve Bank, 467 U.S. 867, 877-78 (1984) (judgment in class action finding that employer did not engage in a pattern or practice of racial discrimination against the class does not bar a class member from litigating an individual claim of discrimination by the same employer). On the other hand, the district court could allow the Commission and the intervening charging party to continue litigating their claims against the employer, and stay the order compelling the charging party to arbitrate pending resolution of the litigation. This approach has several distinct advantages. It eliminates entirely the necessity for simultaneous parallel proceedings, and it significantly reduces the likelihood that a second proceeding will be needed at all because, if the charging party is participating as a party in the litigation, a resolution of the litigation will likely also resolve her claims or be binding on her. It also correspondingly reduces the likelihood of inconsistent results, and levels the playing field, since the employer, the employee, and the agency are all participating as equal parties in the same proceeding. Woodmen may argue that this approach deprives the company of the benefit of its bargain and violates the federal policy favoring the enforcement of arbitration agreements. Cf. Appellant's Br. at 9-21 (suggesting that its agreements with Rollins guarantee that the question of whether it discriminated against Rollins will be resolved in an arbitral forum). But the contractual right that an employer acquires when it enters an arbitration agreement with a private individual is not – and never has been – an absolute right to an arbitral determination of whether the employer's treatment of the individual violated Title VII. The employer's right to an arbitral determination of that issue is conditional because it is subject to the Commission's statutory right to seek a judicial determination of that issue. The employer and the employee have agreed to submit their claims against each other to arbitration, so if the employee sues and the Commission does not, the employer can secure an arbitral forum for the employee's individual claims. But if the Commission sues, the employer has no contractual right to an arbitral determination of the agency's claims, and accordingly must respond in the judicial forum whether the charging party intervenes or not. See Rappaport, 273 F. Supp. 2d at 264-65; cf. Waffle House, 534 U.S. at 291-92, 294. Thus, once the Commission sues, the employer no longer has any right to insist that the issue of whether it violated Title VII be resolved solely in the arbitral forum. The benefit it sought to obtain when it entered into its agreement with the individual is no longer available. Once the litigation of the Commission's claims is resolved, however, the stay would be lifted, and, if the intervenor has any Title VII claim left to pursue, she would have to do so in the arbitral forum as the agreement provides. For example, if the Commission settled its claims on terms which were not acceptable to the intervenor, or voluntarily dismissed its claims, the intervenor could be compelled to arbitrate her claims. CONCLUSION For the foregoing reasons, the Commission respectfully requests this Court to instruct the district court not to stay the litigation of the Commission's claims pending arbitration of Rollins's claims, should such arbitration be ordered. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, DC 20507 (202) 663-4737 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), it contains 3,536 words, as counted by Microsoft Word 2003. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Paul D. Ramshaw Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, DC 20507 Dated: June 7, 2006 CERTIFICATE OF SERVICE I hereby certify that two paper copies and one digital copy of the foregoing brief were served today by mailing them first class, postage prepaid, to the following counsel of record: Kirk S. Blecha Lindsay K. Lundholm Baird Holm LLP 1500 Woodmen Tower Omaha, NE 68102-2068 Patricia S. Bangert Bangert & Associates 3773 Cherry Creek Dr. N., Ste. 575 Denver, CO 80209 Paul D. Ramshaw Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, DC 20507 202-663-4737 June 7, 2006 *************************************************************************** <> <1> Woodmen’s first description of the ruling in Rappaport (see Woodmen’s Motion for Stay Pending Appeal, filed Feb. 17, 2006, at p. 12) may have been merely negligent. The Commission, however, in its Opposition to a Stay Pending Appeal (submitted and served Mar. 7, 2006) quoted the relevant ruling in bold type. Opposition at p. 11. Woodmen’s repetition of the error, after it has been corrected, cannot be ascribed to mere negligence. <2> The employment agreement that Rollins signed in 1997 contains such an arbitration agreement. The October-November 2004 agreement addresses Rollins’s role as intervenor in the Commission’s action.