Appellee brief
July 7, 2006
____________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
____________________________________________________
No. 06-1143
____________________________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee, and
MELISSA R. WOLFF,
Plaintiff-Intervenor-Appellee,
v.
JOSLIN DRY GOODS CO., d/b/a DILLARD'S,
Defendant-Appellant.
On Appeal from the United States District Court
for the District of Colorado
Hon. Walker D. Miller, Civil Action No. 05-cv-177-WM-OES
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS APPELLEE
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
Oral argument is requested.
ANNE NOEL OCCHIALINO
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W., Room 7030
Washington, DC 20507
(202) 663-4724
TABLE OF CONTENTS
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES iii
STATEMENT OF THE ISSUE 1
STATEMENT OF THE CASE 1
A. Nature of the Case and Course of Proceedings 1
B. Disposition Below 2
SUMMARY OF ARGUMENT 5
WOLFF HAS AN INDEPENDENT TITLE VII CLAIM THAT COULD BE
ARBITRATED PURSUANT TO A VALID AGREEMENT, BUT SEVERAL
FACTORS COUNSEL IN FAVOR OF STAYING THE ARBITRATION
PENDING LITIGATION.. 7
CONCLUSION 19
CERTIFICATE OF COMPLIANCE 21
CERTIFICATE OF SERVICE 22
CERTIFICATE OF DIGITAL SERVICE 22
TABLE OF AUTHORITIES
Cases
Avoyelles Sportsmen's League v. Marsh, 786 F.2d 631 (5th Cir. 1986) 13
Alvarado v. J.C. Penney Co., Inc., 997 F.2d 803 (10th Cir. 1993) 10
Connecticut Gen. Life Ins. Co. v. Sun Life Assurance Co., 210 F.3d 771
(7th Cir. 2000) 14
Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511 (10th Cir. 1995) 15
EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280 (11th Cir. 2004) 16, 17
EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir. 2006) 16
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) passim
General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980) 8
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1
(1983) 14
Reynolds v. Byrd, 470 U.S. 213 (1985) 14
Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918 (11th Cir. 1990) 17
Riley Mfg., Inc. v. Anchor Glass Container Corp., 157 F.3d 775
(10th Cir. 1998) 1
United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826 (5th Cir. 1975) 8
Statutes
42 U.S.C. § 2000e-5(f)(1) 8, 13
PRIOR OR RELATED APPEALS
There are no prior or related appeals.
STATEMENT OF THE ISSUE
Assuming, arguendo, the existence of a valid arbitration agreement between
an employer and a former employee who has intervened in an EEOC public
enforcement action against the employer, whether the intervenor has a claim
separate from the EEOC's, and, if so, whether a district court should stay the
arbitration of that claim pending litigation or stay the litigation of
the intervenor's
claim pending arbitration.
STANDARD OF REVIEW
This Court reviews "de novo a district court's order denying a stay of a
federal suit pending arbitration pursuant to 9 U.S.C. § 3." Riley
Mfg., Inc. v.
Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998).
STATEMENT OF THE CASE
A. Nature of the Case and Course of Proceedings
The EEOC commenced this Title VII enforcement action in January 2005,
alleging that Dillard's subjected Wolff and other similarly situated
individuals to
harassment based on their sex. DA64-70.<1> On March 4, 2005, Wolff filed a
motion to intervene to bring a claim of sex-based harassment.
DA71-73. Dillard's
opposed Wolff's intervention and filed a motion to stay all proceedings with
respect to Wolff's claim pending arbitration. Doc.11.<2> In a
September 22, 2005
order, the magistrate denied Dillard's objection to Wolff's intervention and
recommended that Dillard's motion to stay be granted. DA101-119. The
Plaintiffs
filed objections to the magistrate's recommendation to stay Wolff's
proceedings.
Doc.38. On March 29, 2006, the district court disagreed with the magistrate's
decision and denied Dillard's motion to stay. DA120. On April 7,
2006, Dillard's
filed a timely appeal from the district court's order. Doc.78.
B. Disposition Below
The district court denied Dillard's motion to stay Wolff's proceedings
pending arbitration. DA120. The court interpreted the Supreme
Court's language
in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) as "demonstrate[ing] that an
enforcement action brought by the EEOC precludes any independent suit by the
employee." DA122. Specifically, the court quoted the Supreme Court's language
that, "'If . . . the EEOC files suit on its own, the employee has no
independent
cause of action, although the employee may intervene in the EEOC's suit.'"
DA122 (quoting Waffle House, 534 U.S. at 291). The court further reasoned that
an EEOC enforcement action "is just that; it is not a lawsuit on behalf of an
employee and does not become such upon intervention by the employee." DA122.
Accordingly, the court found, "a charging party's intervention in an EEOC
enforcement [action] is not an independent lawsuit but rather a means
to protect his
or her interests in the EEOC's suit for victim-specific relief." DA122-123.
"Because the EEOC chose to file this enforcement action, Wolff lost
her right to
bring an independent cause of action," the court found, and her
"intervention . . .
merely gives her status as a party to participate with the EEOC, and
her complaint
does not constitute an independent claim that would be subject to an
arbitration
agreement." DA123. Given this reasoning, the court found it unnecessary to
decide whether Wolff's arbitration agreement was valid, and the court denied
Dillard's motion to stay. DA124.
STATEMENT OF FACTS
On January 10, 1993, Melissa Wolff, an 18-year old high school senior,
applied with Scott McGinnis to work at Dillard's. Doc.14, Ex. 2
(Wolff Decl. 1).
On January 15, 2003, McGinnis called Wolff back to his office to complete her
paperwork. One of the documents she signed was a one-page document entitled
"Agreement to Arbitrate Certain Claims." Id. at 3,4. Although the Agreement
referenced the "Rules of Arbitration" and stated that they were
attached, Wolff did
not receive them. Id. at 4. The Rules state that if an employee
files an EEOC
charge of discrimination, she must initiate arbitration within 93 days
of receipt of a
right-to-sue letter, but the Rules do not address how an employee is
to proceed - or
even if she must arbitrate - if the EEOC finds cause and files its
own lawsuit.
DA147.
The EEOC's complaint alleges that McGinnis subjected Wolff to offensive
and unwanted sexual advances beginning on her first day of work and that his
conduct on January 18, 2003, included grabbing Wolff's buttocks, rubbing her
hips, attempting to hug her, telling her he wanted to kiss her, asking
if she wore
thong underwear, telling her she was his princess and that he never
wanted her to
leave, asking her if she thought he had a good body and if she would
be interested
in an older man, and repeatedly calling her cell phone after she left
his office.
DA66, 9, 10, 15. The complaint also alleges that the next day Wolff filed a
police report regarding McGinnis's conduct, to which he admitted, and that
Dillard's subsequently terminated McGinnis's employment based on this incident
and similar allegations previously made by two female employees. DA67, 17,
18.
On January 31, 2005, the EEOC filed this public enforcement action on
behalf of Wolff and other similarly situated individuals alleging that
Dillard's
subjected them to sexual harassment in violation of Title VII. DA64,
1. Wolff
intervened, also alleging a Title VII claim of sexual harassment. DA74. As
discussed above, the district court denied Dillard's motion to stay Wolff's
proceedings pending arbitration.
SUMMARY OF ARGUMENT
Dillard's argues that the district court impermissibly considered
the merits of
Wolff's claims when it concluded that because the EEOC filed this enforcement
action, Wolff had no independent claim that could be subject to arbitration and
Dillard's motion to stay Wolff's claim pending arbitration should therefore be
denied. Dillard's also argues that the court erred by treating the
EEOC's presence
in this lawsuit as "sealant" against arbitration. The Commission
submits this brief
to emphasize a point conceded by Dillard's: that the EEOC is not a party to
Wolff's arbitration agreement and cannot be required to arbitrate. The
Commission also submits this brief to address the district court's
contention that
pursuant to EEOC v. Waffle House, a charging party such as Wolff who intervenes
in an EEOC enforcement action has no separate Title VII claim and therefore has
no claim that could be subject to an arbitration agreement. On this point, the
Commission agrees with Dillard's that the district court erred. In the
Commission's view, Wolff does have a separate Title VII claim that she could -
independently of the EEOC - settle, arbitrate, or litigate. The
district court did not
decide, however, whether Wolff's arbitration agreement is valid, and Dillard's
does not address this issue in its opening brief. Accordingly, the Commission
takes no position on that issue in this appeal.
The Commission also submits this brief to address the issue of how,
assuming the arbitration agreement is valid, the district court may
proceed as to the
issue of timing. While the Commission would be able to litigate its
claim under
any scenario, the district court would have two options when ruling on
Dillard's
motion to stay Wolff's proceedings pending arbitration: 1) to grant the motion,
staying the litigation of Wolff's claim pending arbitration; or 2) to
allow Wolff to
litigate her claim until the EEOC's action is resolved (through a judgment,
voluntary dismissal, or settlement) and then to compel Wolff to
arbitrate whatever
claim she has left and chooses to pursue. The Commission contends that the
second option is the most consistent with Title VII and would yield the most
consistent results, while still complying with the FAA's presumption
in favor of
arbitration.
ARGUMENT
WOLFF HAS AN INDEPENDENT TITLE VII CLAIM THAT
COULD BE ARBITRATED PURSUANT TO A VALID
AGREEMENT, BUT SEVERAL FACTORS COUNSEL IN FAVOR
OF STAYING THE ARBITRATION PENDING LITIGATION.
The district court concluded below that upon the EEOC's filing of this
enforcement action, "Wolff lost her right to bring an independent
cause of action"
and found that "her complaint does not constitute an independent claim
that would
be subject to an arbitration agreement." DA123. Dillard's argues
that the district
court's conclusion that Wolff has no independent claim that could be subject to
arbitration impermissibly delved into the merits of her claim and imposed an
"independent claim" requirement not present in the FAA and was, in any event,
erroneous. Br. at 16-21.
Initially, we note that neither the district court's decision nor
Dillard's brief
addresses the question of whether Wolff's arbitration agreement is valid.
Accordingly, the Commission takes no position on that issue in this appeal. As
Dillard's acknowledges, however, even if Wolff's arbitration agreement
is valid,
"the EEOC is not a party to the arbitration agreement and cannot be required to
arbitrate." Br. at 11; see EEOC v. Waffle House, Inc., 534 U.S. 279,
294 (2002)
("No one asserts that the EEOC is a party to the contract, or that it agreed to
arbitrate its claims. It goes without saying that a contract cannot bind a
nonparty."). Accordingly, the EEOC will be able to litigate its claim
regardless of
whether Wolff's arbitration agreement is determined to be valid.
We agree with Dillard's that to the extent the district court's
order rests on a
finding that the filing of the EEOC's public enforcement action extinguished
Wolff's Title VII claim, this finding was erroneous. As Dillard's
notes, Title VII
was enacted in 1964 and authorized employees, but not the EEOC, to file claims
against their employers in federal court. See General Tel. Co. of the
Northwest,
Inc. v. EEOC, 446 U.S. 318, 325-26 (1980). In 1972, Congress amended Title VII
to give the EEOC authority to sue employers as a means "to implement the public
interest as well as to secure more effective enforcement of Title
VII." Id. at 326.
This authority was "intended to supplement, not replace, the private
action." Id. at
326. Under the 1972 amendments, once the EEOC has filed an enforcement
action, a charging party loses the right to institute an independent
action against the
employer but has a statutory right to intervene. 42 U.S.C. §
2000e-5(f)(1) (stating
that "[t]he person or persons aggrieved shall have the right to
intervene in a civil
action brought by the Commission"); General Tel., 446 U.S. at 326 (noting
aggrieved person's right to intervene); United States v.
Allegheny-Ludlum Indus.,
Inc., 517 F.2d 826, 870 n.62 (5th Cir. 1975) (stating that 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"). Thus, the district court's statement that "Wolff lost
her right to
bring an independent cause of action" once the EEOC filed suit was
correct in the
sense that Wolff could no longer file her own Title VII lawsuit in
federal court.
The court erred, however, in concluding that Wolff's complaint-in-intervention
"does not constitute an independent claim that would be subject to
arbitration."
DA123.
The district court reached this conclusion based on its
misunderstanding of
the Supreme Court's statement in Waffle House that "'If . . . the EEOC
files suit on
its own, the employee has no independent cause of action, although the employee
may intervene in the EEOC's suit.'" DA122 (quoting Waffle House, 534 U.S. at
291).<3> The district court seemed to view this statement as meaning that the
EEOC's filing of a public enforcement action extinguishes the employee's own
claim and that an employee who intervenes in an EEOC enforcement action is
therefore not asserting her own claim but is somehow merely standing by as a
watchful observer to protect her own interests. See DA122-23 ("A charging
party's intervention in an EEOC enforcement [action] is not an independent
lawsuit but rather a means to protect his or her interests in the
EEOC's suit for
victim-specific relief."). We agree with Dillard's that this
conclusion is at odds
with established law holding that "when a party intervenes, it becomes a full
participant in the lawsuit and is treated just as if it were an
original party."
Alvarado v. J.C. Penney Co., Inc., 997 F.2d 803, 805 (10th Cir. 1993) (internal
quotations and citation omitted).
We also agree that the court's reading of Waffle House is erroneous. Read
in context, the Supreme Court's statement in Waffle House that an
intervenor in an
EEOC action "has no independent cause of action" can only be read to mean that
once the EEOC files suit an employee is foreclosed from filing a separate
independent lawsuit, although she may intervene in the EEOC's action
to assert her
own claim. The Court's statement comes from a passage in Waffle House
emphasizing that the EEOC is "master of its own case" and that a charging party
does not control the EEOC's decision to prosecute a claim. Waffle House, 534
U.S. at 291. The sentence immediately preceding the Court's statement that an
intervenor has "no independent cause of action" explains that an employee can
only sue within 180 days after filing a charge upon receipt of a
right-to-sue letter
from the EEOC. In this context, the Court's statement that an employee "has no
independent cause of action" once the EEOC has sued is logically read
as referring
to the fact that an employee cannot sue her employer in a separate
lawsuit once the
EEOC has done so.
Other statements in the Supreme Court's Waffle House opinion support this
conclusion. The Court repeatedly recognized that the plaintiff, who
had signed an
arbitration agreement but had never sought to enforce it or to intervene in the
EEOC's action, potentially had his own claim. See Waffle House, 534
U.S. at 296
(stating that if the plaintiff had "failed to mitigate his damages, or
had accepted a
monetary settlement, any recovery by the EEOC would be limited accordingly"),
297 (stating that "no question concerning the validity of
[plaintiff's] claim or the
character of relief that could be appropriately awarded in either a
judicial or an
arbitral forum is presented by this record"; "Baker has not sought
arbitration of his
claim, nor is there any indication that he has entered into settlement
negotiations";
"It is an open question whether a settlement or arbitration judgment
would affect
the validity of the EEOC's claim or the relief the EEOC may seek"),
298 (stating
that "ordinary principles of res judicata, mootness, or mitigation may apply to
EEOC claims"). Accordingly, employees who intervene in EEOC actions bring
their own claims to the table, and these claims can - independently of
the EEOC's
- be litigated, arbitrated, or settled.
The Commission's agreement with Dillard's that Wolff has a Title VII claim
separate from the EEOC's claim that could be arbitrated makes it unnecessary to
address Dillard's argument that the court impermissibly considered the
merits of
Wolff's claim or that it erroneously treated the EEOC's presence in
this action as a
"sealant" against arbitration. This agreement, however, is not the end of the
inquiry. If Wolff's agreement is valid and she is compelled to
arbitrate her claim
against Dillard's, the court must decide whether to stay the
litigation of Wolff's
complaint-in-intervention pending arbitration or whether to allow
Wolff to litigate
her complaint-in-intervention until the EEOC's action is resolved (through a
judgment, voluntary dismissal, or settlement) and then compel Wolff to
arbitrate
whatever claim she has left and chooses to pursue.<4> This decision
should probably
be made by the district court in the first instance, if necessary,
should Wolff's
arbitration agreement be found valid. Nevertheless, the Commission
notes several
considerations counseling in favor of the second option, i.e.,
permitting Wolff to
litigate her claim as an intervenor until the EEOC's claim has been
resolved, and
then, as appropriate, compelling Wolff to arbitrate.<5>
We start by noting that neither Title VII nor the typical
arbitration agreement
expressly covers this situation. As discussed above, Congress amended
Title VII
in 1972 to permit the EEOC to file its own enforcement action and allowed a
charging party to intervene in such an action. 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 - such as the one at issue in this case
- 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.
The district court should therefore endeavor to accommodate, to the extent
possible, both the statutory scheme and the intent of the contracting
parties. This is
difficult because Title VII 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 the litigation and the arbitration
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 are legally and factually 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 . . . ."). Dillard's argues that Dean Witter
Reynolds v. Byrd, 470 U.S. 213 (1985) and Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U.S. 1 (1983), preclude an argument that the
FAA permits a district court to refuse to order arbitration of some
claims on the
ground that it would be inefficient to litigate the non-arbitrable
claims and arbitrate
the rest. Those cases are distinguishable, however, because they
involved different
claims. In Byrd, the Supreme Court was presented with federal
securities claims
and pendent state claims, and in Moses the Court's statement that the
FAA requires
"piecemeal" litigation was made in reference to the possibility that
the hospital's
claims against the construction company involving delay and impact costs might
be arbitrated while the hospital's indemnity claims against the
architect might be
resolved in state court. Here, in contrast, Wolff's claim is
identical to the EEOC's
claim: both are Title VII claims based on identical facts alleging
that Dillard's
subjected Wolff to sexual harassment. Accordingly, it would not make sense to
order the arbitration of Wolff's Title VII claim while that claim was
being litigated
by the EEOC or by the EEOC and Wolff. Similarly, Coors Brewing Co. v. Molson
Breweries, 51 F.3d 1511 (10th Cir. 1995), does not dictate that a
district court must
send an intervenor's identical claim to arbitration because in that
case the claims
sent to arbitration were different than those that were litigated.
See Coors, 51 F.3d
1511 (holding that antitrust claims that did not implicate the
contract between the
parties could be litigated although antitrust claims related to the
contract, and other
claims relating to the contract, were subject to arbitration).
In addition to being inefficient, permitting the litigation and
the arbitration to
proceed simultaneously threatens to yield inconsistent results, no matter which
proceeding finishes first. If the arbitration ends first, the
charging party would
likely be bound by the result but the Commission would not because it is not in
privity with the charging party; the Commission might well continue to
litigate if
the arbitration yields no award for the charging party or yields 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) (holding that the EEOC
was not in privity with private plaintiffs who had received adverse
jury verdict on
individual claims for hostile work environment and that the EEOC could
therefore
seek relief for those plaintiffs in its action against the same
employer alleging
companywide hostile work environment), 1290-91 ("[I]t is particularly
rare to find
privity between a private party in one action and a party in a later
action when the
party in the later action is a governmental agency."); see also EEOC v. Sidley
Austin LLP, 437 F.3d 695, 696 (7th Cir. 2006) (holding that the EEOC could
obtain monetary relief on behalf of individuals who failed to timely file ADEA
charges and stating that "the doctrinal heart of Waffle House" is that
"the EEOC is
not in privity with the victims for whom it seeks relief"). If, on
the other hand, the
court stays the litigation of the intervenor's claim pending
arbitration and the
Commission's litigation ends first (with, for example, a summary
judgment order,
a voluntary dismissal or a settlement), the intervenor might well not
be bound by
that result because she would not have been a party to the litigation and would
therefore be free to pursue her claims in the arbitral proceeding.
See Pemco, 383
F.3d at 1293 ("[R]esolution of an EEOC case does not necessarily bar
private suit
from the person on whose behalf the EEOC originally acted."); Riddle v. Cerro
Wire & Cable Group, Inc., 902 F.2d 918 (11th Cir. 1990) (where employee
rejected EEOC consent decree, refused to sign release, did not receive
any money,
and subsequently filed her own Title VII suit, holding that there was
no privity and
that res judicata therefore did not bar her action).
The alternative to allowing both the litigation and the
arbitration to proceed
simultaneously is to allow the intervenor to continue litigating her
claim against
the employer and to stay the order compelling arbitration 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. This alternative 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.
Because 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, this approach is not inconsistent
with the federal
policy favoring the enforcement of arbitration agreements. The
employer's right to
an arbitral determination of whether it violated Title VII is
conditional because it is
subject to the Commission's statutory right to seek a judicial
determination of that
issue. Thus, 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. 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.
Accordingly, the benefit
it sought to obtain when it entered into its agreement - an arbitral
determination of
the employee's claim - 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 would be compelled to arbitrate
any remaining
claims she sought to pursue.
CONCLUSION
For the foregoing reasons, the Commission respectfully requests that this
Court find that Wolff has a Title VII claim independent of the
Commission's claim
and that, assuming Wolff has a valid arbitration agreement, the
district court may
stay the arbitration pending litigation.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
______________________________
s/ ANNE NOEL OCCHIALINO
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7030
Washington, DC 20507
(202) 663-4724
Annenoel.occhialino@eeoc.gov
STATEMENT REGARDING ORAL ARGUMENT
The Commission believes that oral argument would significantly aid this
Court in making its decision in this case because of the complex
nature of the issues
presented.
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 4,843 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.
s/ Anne Noel Occhialino
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7030
Washington, DC 20507
(202) 663-4724
Annenoel.occhialino@eeoc.gov
Dated: July 7, 2006
CERTIFICATE OF SERVICE
I hereby certify that two copies of this brief were served today
by mailing
them first class, postage prepaid, to the following counsel of record:
K. Preston Oade Jr.
Michael J. Hofmann
Holem Roberts & Owen LLP
1700 Lincoln St., Ste. 4100
Denver, CO
80203
Preston.oade@hr.com
Michael.Hofmann@hro.com
Elwyn F. Schaefer, Esq.
Andrea J. Kershner
Elwyn F. Schaefer & Associates, P.C.
600 17th St., Ste. 2005-S
Denver, CO 80202
efschaefer@qwest.net
s/ Anne Noel Occhialino
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7030
Washington, DC 20507
202-663-4724
Annenoel.occhialino@eeoc.gov
July 7, 2006
CERTIFICATE OF DIGITAL SERVICE
I hereby certify that: 1) on July 7, 2006, this brief was
submitted in digital
form to the Tenth Circuit clerk's office at
esubmission@ca10.uscourts.gov and to
the counsel listed below at their electronic addresses: 2) all
required redactions
have been made to this brief and that this document, submitted in
digital form, is
an exact copy of the written document being filed with the Court; and 3) this
digital submission has been scanned for viruses with the most recent
version of a
commercial virus scanning program, Symantec AntiVirus Corporate Edition,
updated July 2006.
K. Preston Oade Jr.
Michael J. Hofmann
Holem Roberts & Owen LLP
1700 Lincoln St., Ste. 4100
Denver, CO
80203
Preston.oade@hr.com
Michael.Hofmann@hro.com
Elwyn F. Schaefer, Esq.
Andrea J. Kershner
Elwyn F. Schaefer & Associates, P.C.
600 17th St., Ste. 2005-S
Denver, CO 80202
efschaefer@qwest.net
s/ Anne Noel Occhialino
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7030
Washington, DC 20507
202-663-4724
Annenoel.occhialino@eeoc.gov
**************************************************************************
<<FOOTNOTES>>
<1> "DA" refers to Dillard's Appendix.
<2> "Doc." refers to the district court docket.
<3> The Commission acknowledges that some of the statements it made below may
have inadvertently invited the district court's erroneous reading of
Waffle House.
<4> Dillard's has wisely never argued that the Commission's litigation should
be stayed pending the outcome of Wolff's arbitration. Such an outcome would
conflict with the Commission's statutory duty to enforce Title VII and
to litigate its
enforcement actions in federal court. Such a finding would also undermine the
principle animating the Supreme Court's decision in EEOC v. Waffle House, to-
wit, that the EEOC is "master of its own case."
<5> Dillard's includes in its "Statement of the Facts" excerpts from the
Solicitor General's brief in EEOC v. Waffle House, suggesting that these
statements preclude the Commission from asserting that a district
court could stay
enforcement of an arbitration agreement pending litigation. Br. at 4-6, 26. A
district court's ability to stay enforcement of an intervenor's
arbitration agreement
pending litigation was not, however, at issue in Waffle House.
Passing statements
in a brief on an issue not presented or to be ruled on by the court
can hardly be
deemed binding in the sense that an agency is precluded from subsequently
clarifying its analysis in a case where the issue is clearly presented
for resolution.
This is particularly true where, as here, the issues are novel and
complex. See
Avoyelles Sportsmen's League v. Marsh, 786 F.2d 631, 637 n.9 (5th Cir. 1986)
("The federal agencies also changed their positions on a number of questions
during the course of the litigation, but these changes appear to have
involved the
kinds of adjustments that an administrative agency normally and
properly makes in
the course of applying its expertise to complex factual situations.").
Moreover,
although Dillard's suggests that the Solicitor General properly stated
in the Waffle
House brief that employees who sign arbitration agreements "have
agreed . . . to
forego their statutory right to intervene in a judicial action brought
by the EEOC,"
Br. at 6, 26, even Dillard's seems to acknowledge that this statement plainly
conflicts with Section 706 of Title VII, which gives a charging party
"the right to
intervene." See 42 U.S.C. § 2000e-5(f)(1)(emphasis added). Dillard's did not
object below to the magistrate judge's order overruling its objections
to Wolff's
intervention, DA121 at n.2, suggesting that Dillard's understood that
regardless of
whether Wolff is compelled to arbitrate her claim, she at least had
the statutory
right to intervene. For the reasons set forth in this brief, the
Commission also
contends that the policies underlying the FAA will still be vindicated
by staying
arbitration pending litigation because any claims an intervenor has
left and seeks to
pursue after the resolution of the EEOC's claim will be sent to arbitration.
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