FOR THE ELEVENTH CIRCUIT
_______________________
No. 03-10719
_______________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
PEMCO AEROPLEX, INC.,
Defendant-Appellee.
_______________________________________________
On Appeal from the United States District Court
for the Northern District of Alabama
Southern Division
_______________________________________________
REPLY BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
_______________________________________________
ERIC S. DREIBAND
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
BARBARA L. SLOAN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of the General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4721
EEOC v. Pemco Aeroplex, Inc., No. 03-10719
CERTIFICATE OF INTERESTED PERSONS
In accordance with Eleventh Circuit Rules 26.1-1, I certify
that the following persons or entities have an interest in the
outcome of this case:
The Honorable William M. Acker, U.S. District Judge, N.D. Ala.
*Air International, Inc., Pemco-Related Legal Entity.
Mitchell G. Allen, Attorney for Defendant.
Naomi Hilton Archer, Senior Trial Attorney, EEOC.
Vincent J. Blackwood, Associate General Counsel, EEOC.
Stephen E. Brown, Attorney for Defendant.
Mildred Byrd, Supervisory Trial Attorney, EEOC.
*N. Lee Cooper, Attorney for Defendant.
Eric S. Dreiband, General Counsel, EEOC.
Equal Employment Opportunity Commission, Plaintiff-Appellant.
Charles Guerrier, Regional Attorney, EEOC.
Jeffrey A. Lee, Attorney for Defendant.
Maynard, Cooper & Gale, P.C., Attorneys for Defendant.
Pemco Aeroplex, Inc., Defendant-Appellee.
*Pemco Aircraft Engineering Services, Pemco-Related Legal Entity.
*Pemco Air Services System, Inc., Pemco-Related Legal Entity.
*Pemco Aviation Group, Inc., Pemco's Parent Corporation.
*Pemco Engineers, Inc., Pemco-Related Legal Entity.
*Pemco World-Air Services, Pemco-Related Legal Entity.
Barbara L. Sloan, Attorney, EEOC.
*Space Vector Corporation, Pemco-Related Legal Entity.
Carolyn L. Wheeler, Acting Associate General Counsel, EEOC
* from Pemco's Certificate Of Interested Persons
_______________________________
Barbara L. Sloan
TABLE OF CONTENTS
Page(s)
CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . .i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . .iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 27
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES Page(s)
Ameritech Benefit Plan Committee v. CWA,
220 F.3d 814 (7th Cir. 2000). . . . . . . . . . . . . . . .5
Benson & Ford v. Wanda Petroleum Co.,
833 F.2d 1172 (5th Cir. 1987) . . . . . . . . . . . . . . 14
Citibank v. Data Lease Finance Corp.,
904 F.2d 1498 (11th Cir. 1990). . . . . . . . . . . . . . 6
Drummond v. United States,
324 U.S. 316 (1945) . . . . . . . . . . . . . . . . . . . 16
EEOC v. Hernando Bank,
724 F.2d 1188 (5th Cir. 1984) . . . . . . . . . . . . . . 24
EEOC v. Huttig Sash & Door Co.,
511 F.2d 453 (5th Cir. 1975). . . . . . . . . . . . 4, 6, 8
EEOC v. Johnson & Higgins,
91 F.3d 1529 (2d Cir. 1996) . . . . . . . . . . . . . . . 24
EEOC v. Mitsubishi Motor Manufacturing of America,
960 F. Supp. 164 (N.D. Ill. 1997) . . . . . . . . . . . . 24
EEOC v. Waffle House,
534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . . 4, 7
Freeman v. Lester Coggins Trucking,
771 F.2d 860 (5th Cir. 1985). . . . . . . . . . . . . . . 9
General Telegraph Co v. EEOC,
446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . 4, 7
Gonzalez v. Banco Central Corp.,
27 F.3d 751 (1st Cir. 1994) . . . . . . . . . . . . . . . 14
Herman v. South Carolina National Bank,
140 F.3d 1413 (11th Cir. 1998). . . . . . . . . . . . . 4, 6
Humphreys v. Tann,
487 F.2d 666 (6th Cir. 1973). . . . . . . . . . . . . . . 10
In re Bemis,
279 F.3d 419 (7th Cir. 2002). . . . . . . . . . . . . . . 4
In re Birmingham Reverse Discrimination Employment Litigation,
833 F.2d 1492 (11th Cir. 1988)
aff'd sub nom Martin v. Wilks, 490 U.S. 755 (1989). . . . 9
In re Piper Aircraft Corp.,
244 F.3d 1289 (11th Cir. 2001). . . . . . . . . . . . . . 10
International Ass'n of Machinists Nat'l Pension Fund v. Dickey,
808 F.2d 483 (6th Cir. 1987). . . . . . . . . . . . . . . 12
Lawlor v. National Screen Service Corp.,
349 U.S. 322 (1955) . . . . . . . . . . . . . . . . . . . 6
Lovejoy v. Murray,
70 U.S. 1, 3 Wall. 1 (1865) . . . . . . . . . . . . . . . 16
Mann v. City of Albany, Ga.,
883 F.2d 999 (11th Cir. 1989)). . . . . . . . . . . . . . 11
Montana v. United States,
440 U.S. 147 (1979) . . . . . . . . . . . . . 6, 11, 17, 22
NAACP v. Michot,
480 F.2d 547 (5th Cir. 1973). . . . . . . . . . . . . . . 19
National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . 23
Parklane Hosiery Co. v. Shore,
439 U.S. 322 (1979) . . . . . . . . . . . . . . . 9, 10, 25
Peralta v. U.S. Attorney's Office,
136 F.3d 169 (D.C. Cir. 1998) . . . . . . . . . . . . . . 12
Petit v. City of Chicago,
1999 WL 66539 (N.D. Ill. Feb. 8, 1999) (unpublished). . . 13
Pollard v. Cockrell,
578 F.2d 1002 (5th Cir. 1978) . . . . . . . . . . . . 11, 13
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . 20
Richards v. Jefferson County, Ala.,
517 U.S. 793 (1996) . . . . . . . . . . . . . . . . . . . 15
Riddle v. Cerro Wire & Cable Group,
902 F.2d 918 (11th Cir. 1990) . . . . . . . . . . . . . . 7
South Central Bell Telegraph Co. v. Alabama,
526 U.S. 160 (1999) . . . . . . . . . . . . . . . 14, 15, 16
Tice v. American Airlines,
162 F.3d 966 (7th Cir. 1999). . . . . . . . . . . . . . . 15
United States v. East Baton Rouge Parish School Board,
594 F.2d 56 (5th Cir. 1979) . . . . . . . . . . . . . . . 4
STATUTES AND RULES
Title VII of the Civil Rights Act of 1964
42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . passim
Federal Rule of Appellate Procedure 28 . . . . . . . . . . . . 12
OTHER AUTHORITY
Restatement (Second) of Judgments § 39 . . . . . . . . . . . . 16
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 03-10719
_______________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
PEMCO AEROPLEX, INC.,
Defendant-Appellee.
_______________________________________________
On Appeal from the United States District Court
for the Northern District of Alabama
_______________________________________________
REPLY BRIEF
_______________________________________________
INTRODUCTION
EEOC alleges that Pemco Aeroplex violated Title VII by
maintaining a racially hostile work environment potentially
affecting all of the company's African-American employees. The
district court granted summary judgment, holding that EEOC is
precluded from litigating this enforcement action because a jury
rejected the individual harassment claims of 22 Pemco employees in
Thomas, et al. v. Pemco Aeroplex, No. 99-CV-3280-S (N.D. Ala.), a
private suit that was tried separately from EEOC's action
notwithstanding EEOC's repeated requests to have the cases
consolidated.
In our opening brief, we noted that, because EEOC was not a
party to the Thomas litigation, it could be precluded by the
judgment in that action only if EEOC was in privity with the Thomas
plaintiffs. We argued that under prevailing law there is no basis
for finding privity here. We also argued that, even if there were
privity, preclusion would not be proper because the claims in the
two suits are not the same. Finally, we argued that the logistical
concerns raised by the district court are overstated and, in any
event, cannot serve as a basis for binding the government to the
judgment in a case in which it was not a party or in privity with
a party.
In its brief, Pemco argues strenuously that EEOC should not be
permitted to continue to litigate this action in light of the jury
verdicts in Thomas. Rather than address our arguments, however,
Pemco relies largely on general arguments about the unfairness and
inefficiency of permitting further litigation against the company
on the issue of racial harassment after it prevailed in Thomas.
The company has no response to our argument that there was no
privity between EEOC and the Thomas plaintiffs under the prevailing
legal standard, and, in the absence of privity, EEOC cannot be
bound by the Thomas judgment, even if Pemco's complaints were well-
founded. In any event, Pemco's arguments are based on a distorted
characterization of the proceedings in Thomas and in this action,
and completely overlook the fact that Pemco vigorously opposed
EEOC's attempts to consolidate the two actions thereby avoiding the
inefficiencies against which Pemco now rails.
ARGUMENT
1. It is a fundamental principle, acknowledged by the
district court and not disputed by Pemco, that a party may not be
precluded from litigating a claim on the basis of a judgment in a
previous action unless it was a party to that action or in privity
with a party. In our opening brief, we argued that EEOC, which was
not a party to the Thomas action, is not precluded from proceeding
with this Title VII enforcement action by the judgment in Thomas
because there is no basis for finding that EEOC was in privity with
the Thomas plaintiffs. We noted first that courts including this
one have uniformly held that federal enforcement agencies including
EEOC are not bound by the judgment in a private suit they did not
control, especially where, as here, the agency's allegations are
broader than the allegations in the private suit. We explained
that these decisions are largely based, explicitly or implicitly,
on the lack of privity between the agency and the private
litigants. Even where it seeks victim-specific relief, the agency
litigates its own independent claim and has an interest in law
enforcement that is not shared by the private litigants. See EEOC
Brief at 18-23, citing, e.g., EEOC v. Waffle House, 534 U.S. 279
(2002); General Tel. Co v. EEOC, 446 U.S. 318 (1980); Herman v.
South Carolina Nat'l Bank, 140 F.3d 1413 (11th Cir. 1998); United
States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56 (5th Cir.
1979); EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir.
1975); see also In re Bemis, 279 F.3d 419, 421-22 (7th Cir. 2002)
("EEOC's primary role is that of a law enforcement agency").
Pemco cites no contrary authority. Instead, the company
characterizes the long line of precedent we rely on as "entirely
distinguishable" because in those cases the parallel private
litigation ended in a settlement or consent decree whereas here,
the Thomas suit ended in a jury verdict. Based on this factual
distinction and the lack of authority for its position, Pemco
asserts that this case is "one of first impression." See Pemco
Brief at 10. The company reasons that EEOC's separate enforcement
action should not be precluded by a private settlement since,
according to the company, settlements "only serve the private
financial interest of that particular litigant" and raise concerns
about potential "sweetheart" deals. A different rule should apply,
however, in cases such as this one where the private litigants went
to trial since, Pemco notes, jury trials serve the public interest.
Accordingly, the company states, contrary to what it characterizes
as our argument, "the 'public interest' was [] served in Thomas"
because the case was fully tried to and disposed of by a jury. Id.
at 10-15 (emphasis added).
There are several problems with this argument. First, the
case is "one of first impression" only in that the decision below
is not based on legal precedent. As our opening brief shows, there
is ample authority for the contrary proposition that enforcement
actions brought by EEOC and other federal enforcement agencies are
not barred by judgments in parallel private litigation. See EEOC
Brief at 18-23 (citing cases); see also Ameritech Benefit Plan
Committee v. CWA, 220 F.3d 814, 821 (7th Cir. 2000) (judgment in
parallel private action would not preclude EEOC enforcement action
although rulings on issues of law may have stare decisis effect).
Second, despite its assertion that the cases we cited can be
distinguished on the ground that they involved a settlement or
consent decree, Pemco points to nothing in those cases that
suggests they would have come out differently had the private
litigation gone to trial. Nor would such a distinction make sense.
As noted above, the cases stand for the proposition that there is
no privity between private litigants and federal enforcement
agencies like EEOC because private litigants do not share the
agencies' interest in law enforcement. Privity has to do with the
nature of the relationship between parties to successive lawsuits.
The basis for the judgment in the prior action whether it is
based on a settlement, a jury verdict, or something else has no
logical connection to privity.
Rather than addressing privity, Pemco's argument actually goes
to a different prerequisite for preclusion the need for a final
judgment on the merits. See, e.g., Montana v. United States, 440
U.S. 147, 153 (1979). The company would have this Court hold that
different preclusion principles apply to jury verdicts than to
settlements. As our opening brief points out, however, both this
Court and the Supreme Court have held that the preclusive effect of
a judgment does not vary depending on whether it is based on a
settlement as occurred in Huttig Sash & Door, 511 F.2d at 455,
and Herman, 140 F.3d at 1417, for example or a judicial
determination. EEOC Brief at 22 n.4 (citing Citibank v. Data Lease
Fin. Corp., 904 F.2d 1498, 1501-02 (11th Cir. 1990); Lawlor v.
National Screen Serv. Corp., 349 U.S. 322, 327 (1955)). Thus,
Pemco's attempt to distinguish the cases we cited fails.
Third, we never argued that the "public interest was not
served in Thomas," whatever that means. Rather, we argued that, as
a federal enforcement agency, EEOC is not bound by judgments in
private litigation it did not control and to which it was not a
party. As for the public interest, we relied on the Supreme Court
for the proposition that EEOC's suit is separate from the claims of
private plaintiffs, that Title VII unambiguously authorizes EEOC to
"determine when it is in the public interest to sue to vindicate
federal law," and that "it is [EEOC's] province not that of the
court" or the defendant "to determine whether public resources
should be committed" to the recovery of relief for a particular
claim of discrimination. EEOC Brief at 19-21 (citing General
Telephone, 446 U.S. at 325-26, and quoting Waffle House, 534 U.S.
at 291-92).
Pemco asserts that dicta in Waffle House "debunk[s]" EEOC's
"implication that it is settled law that it cannot be barred by res
judicata from asserting claims," pointing to the statement that
"[i]t is an open question whether a settlement or arbitration
judgment would affect the validity of the EEOC's claim or the
character of relief the EEOC may seek." Pemco Brief at 14 n.7
(quoting 534 U.S. at 297). The quoted statement in Waffle House
follows the Court's citation to appellate decisions holding that
persons who had previously litigated, settled or otherwise resolved
their private claims could not obtain individual relief in an EEOC
enforcement action. Like Huttig Sash & Door, 511 F.2d at 454-55,
the cases cited by the Court hold that an EEOC suit may proceed for
injunctive relief and individual relief for persons who have not
privately resolved their claims. Accordingly, the "open question"
alluded to in Waffle House does not go to EEOC's authority to
proceed with this action, but only to the relief that may be
obtained. As we noted in our opening brief (EEOC Brief at 23 n.5),
questions regarding the scope of relief available in this action
need not be resolved on this appeal.
In a separate but related point, Pemco argues, without
reference to privity or other preclusion principles, that allowing
EEOC to "relitigate issues thoroughly addressed and decided in
Thomas would undermine the public's confidence in the finality of
jury verdicts in civil litigation" and violate the Seventh
Amendment. See Pemco Brief at 12; 29-31. Insofar as the company
implies that the Seventh Amendment precludes relitigation of issues
decided by a jury even without regard to privity, it is plainly
wrong. The Seventh Amendment was designed to preserve the basic
institution of the jury trial as it existed at common law. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333-37 (1979). At
common law, as now, successive juries could decide even the same
issue in suits involving separate parties. Cf. id. at 330 n.14
(citing example of mass tort defendant that litigates successive
cases brought by different plaintiffs). Thus, what this Court
described as the "fundamental premise of preclusion law" (In re
Birmingham Reverse Discrim. Employment Litig., 833 F.2d 1492, 1498
(11th Cir. 1988)) that a judgment binds only parties and their
privies applies equally to judgments based on jury verdict. See,
e.g., Freeman v. Lester Coggins Trucking, 771 F.2d 860, 861-63 (5th
Cir. 1985) (although plaintiff's own claim was barred, his claims
in representative capacity for wife and children in wrongful death
action were not precluded by jury finding of no negligence in prior
suit against same defendants where plaintiff had sued individually
for his own injuries from same accident); Humphreys v. Tann, 487
F.2d 666, 671 (6th Cir. 1973) (rejecting argument that concerns
about "federal courts' crowded dockets" and "proper utilization of
judicial time" obviated requirement for privity and holding that,
despite consolidated discovery, one plane crash victim's estate was
not bound by the jury verdict in an earlier suit brought by another
victim's estate). See also Parklane Hosiery, 439 U.S. at 327 n.7
(noting constitutional basis for privity requirement). The fact
that some Thomas plaintiffs went to trial, therefore, does not
relieve Pemco of its obligation to establish that there was privity
between EEOC and the Thomas plaintiffs. See In re Piper Aircraft
Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (party asserting res
judicata bears burden of showing preclusion was appropriate).
To the extent the Seventh Amendment is implicated by this
case, it is EEOC's right that is lost by the decision barring the
agency from pursuing this enforcement action. Because the district
court, at Pemco's urging, refused to consolidate this suit with
Thomas for trial purposes, EEOC has had no opportunity to try its
case to a jury in the first instance.
2. We noted in our opening brief that a non-party who had a
"laboring oar," i.e., substantially controlled, the litigation of
a lawsuit may be bound by the judgment in that suit even if its
legal relationship with the parties to that suit would not
otherwise establish privity. See EEOC Brief at 23-25 (citing
Montana v. United States, 440 U.S. at 154-56). We also noted that,
in the absence of actual control of the prior litigation, this
Court requires, at a minimum, that there be "an express or implied
legal relationship in which parties to the first suit are
accountable to non-parties who file a suit raising identical
issues." Id. at 27-29 (citing, e.g., Pollard v. Cockrell, 578 F.2d
1002, 1008 (5th Cir. 1978), cited with approval in Mann v. City of
Albany, Ga., 883 F.2d 999, 1004 (11th Cir. 1989)). We argued that
EEOC did not have a sufficient "laboring oar" in the Thomas
litigation since it did not control the filing of that suit,
discovery or any aspect of the trial and post-trial decision-
making. Nor, we argued, was there an "express or implied legal
relationship" between EEOC and the Thomas plaintiffs such that it
can reasonably be said that they were proper agents for EEOC. See
EEOC Brief at 23-29.
In responding to this argument, Pemco does not contend that
there was privity between EEOC and the Thomas under this Court's
legal standard, which Pemco considers "rigid." Pemco Brief at 16.
Rather, Pemco argues that a finding of privity is appropriate
because, in its view, the Thomas plaintiffs "adequately represented
the EEOC's interests" and EEOC "assisted" in the prosecution of the
Thomas case. Id. at 18-23. As factual support, the company
opines that counsel for the Thomas plaintiffs did a good job trying
their case. The company adds, without citation to the record, that
EEOC participated in 20 depositions; EEOC's suit was mediated
together with Thomas; counsel for EEOC was "constantly present" at
the Thomas trial and "constantly conferred" with counsel for Thomas
both before and during the trial, and EEOC would use "the very same
evidence" to prove its claim. See, e.g., id. at 18, 20-21; see
also id. at 6-7.
Pemco's version of the facts, even if true, would not suffice
to support a finding of privity. As noted above, even if the
issues in this case and Thomas were the same (which they are not),
this Court requires, at a minimum, an "express or implied legal
relationship by which parties to the first suit are accountable to
non-parties who file a subsequent suit" (Pollard, 578 F.2d at
1008). Pemco does not contend that any such relationship existed
between EEOC and the Thomas plaintiffs. EEOC participated in
discovery because the court ordered "joint discovery" in the two
cases. R.7 (order). EEOC participated in mediation because the
two cases were mediated together; Pemco sought a "global
resolution" and refused to mediate in Thomas unless EEOC also
agreed to mediate the claims in its suit. R.20-21 (Transcript of
4/2/2002 Hearing on EEOC's motion to modify mediation order at 13-
15) (filed May 19, 2003). Nothing in the record indicates that
EEOC attended every hearing in Thomas or was "constantly present"
and "conferred constantly" with Thomas counsel during the trial.
On the contrary, the only evidence is that an EEOC attorney was
present for approximately half the trial, observing from the public
seating area. R.53, Ex.A ¶¶ 5-6; accord R.60 (decision at 3)
(EEOC counsel attended trial "with some frequency" as "an alert and
interested observer").
Citing Thomas counsel's time sheets, Pemco argues that EEOC
and counsel for Thomas were in contact 26 times, including four
"strategy" sessions, while Thomas was pending (Pemco Brief at 6 &
n.4, 21(citing R.51, Ex.A)). However, Pemco points to no authority
suggesting that this is significant. On the contrary, courts have
held that preclusion is inappropriate even where parties and non-
parties share the same attorney. See, e.g., South Central Bell
Tel. Co. v. Alabama, 526 U.S. 160, 168 (1999); Benson & Ford v.
Wanda Petroleum Co., 833 F.2d 1172, 1174-75 (5th Cir. 1987).
Here, some substantial interaction was to be expected since
both EEOC and the Thomas plaintiffs had brought suit against Pemco
for racial harassment, and the two suits were consolidated for
discovery purposes. The time sheets list only one contact between
EEOC and counsel for the Thomas plaintiffs after discovery in
Thomas ended and the court denied the second consolidation motion
– a 30-minute telephone conversation on March 25, 2002, regarding
EEOC's motion to modify the order to mediate. See R.51 (Ex.A).
Although Pemco suggests that this Court's standard is
unnecessarily "rigid," it is in line with case law from the Supreme
Court and other circuits. See, e.g., South Central Bell, 526 U.S.
at 167-68 (preclusion is improper inter alia where original
plaintiffs did not understand their suit to be on behalf of non-
parties, judgment did not purport to bind non-parties and court in
original suit made no special efforts to protect later plaintiffs'
interests); Richards v. Jefferson County, Ala., 517 U.S. 793, 801-
02 (1996) (same); Tice v. American Airlines, 162 F.3d 966, 971 (7th
Cir. 1999) ("general question" is "whether the earlier parties were
in some sense proper agents for the later parties").
Ignoring South Central Bell, Pemco argues that Richards can be
distinguished because, unlike EEOC, the plaintiffs in Richards were
unaware of the earlier suit and counsel in the two cases never
conferred. Pemco Brief at 23. The Alabama Supreme Court made
similar distinctions in South Central Bell, reasoning that
plaintiffs there, unlike those in Richards, not only knew about the
earlier case but had agreed to stay their case pending the outcome
in the earlier one, and one lawyer even represented plaintiffs in
both cases. See 526 U.S. at 168. The Supreme Court found these
distinctions unpersuasive, however, and held that the case was
controlled by Richards. See id. The distinctions advanced by
Pemco in this case are similarly unpersuasive.
Although Pemco states that EEOC can be bound by the Thomas
judgment if it "assisted in the prosecution" of that case (Pemco
Brief at 17-18, 22 (citing Montana, 440 U.S. at 154)), the
government can be bound only where it had a "laboring oar" in the
earlier litigation. See Drummond v. United States, 324 U.S. 316,
318 (1945); cf. Lovejoy v. Murray, 70 U.S. 1, *18-*19, 3 Wall. 1
(1865) (persons not having the right to "adduce testimony, . . .
cross-examine witnesses adduced on the other side" and "appeal from
the judgment" are "strangers to the cause"); Restatement (Second)
of Judgments § 39 & comment c (participation must be substantial).
The Montana Court found a "sufficient 'laboring oar'" where the
government required the private complaint to be filed, reviewed and
approved the complaint, paid the attorneys fees and costs in the
private suit, directed the appeal, appeared and submitted an amicus
brief, and directed the filing and abandonment of an appeal to the
Supreme Court. Montana, 440 U.S. at 155; see also id. at 154
(citing cases). Even if something less than such complete
manipulation would suffice, the alleged facts here do not support
preclusion under this theory. Pemco itself describes EEOC as
"rid[ing] the coattails of the Thomas plaintiffs" with respect to
discovery. Pemco Brief at 6; see also R.53 (Ex.A ¶¶ 2-4)(counsel
for Pemco and the Thomas plaintiffs typically negotiated discovery
schedules and other such matters without consulting EEOC). More
importantly, because the district court, at Pemco's urging, denied
EEOC's motions to consolidate for trial, EEOC did not have the
right to adduce testimony, to cross-examine witnesses called by
Pemco or to appeal the judgment.
In short, Pemco's brief provides no basis for finding that
EEOC was in privity with the Thomas plaintiffs such that EEOC may
properly be bound by the judgment in that case. Since privity is
necessary for both res judicata and collateral estoppel, the
judgment must be reversed.
3. Because there was no privity between EEOC and the Thomas
plaintiffs, EEOC would not be precluded from proceeding with this
action even if the claims were the same as the claims in Thomas.
However, as we argued in our opening brief, the fact that the
claims in this suit are different from and substantially broader
than – the claims litigated in Thomas provides an additional reason
why the suit is not precluded. EEOC Brief at 34-37. Without
squarely addressing the arguments in our brief, Pemco repeatedly
asserts throughout its brief that the Thomas jury already
determined precisely the same issue that is central to EEOC's case,
and, if this case goes to trial, EEOC will use exactly the same
evidence to prove its case as was proffered by the Thomas
plaintiffs. See, e.g., Pemco Brief at 5, 8, 11-13, 18-40.
These assertions are directly contrary to the position Pemco
took in the district court in opposing EEOC's efforts to have its
case consolidated with Thomas. Ironically, Pemco's statements in
the district court provide a succinct response to the position it
now advocates. In opposing EEOC's second motion to consolidate,
Pemco argued that the claims in this case and in Thomas are not the
same, stating:
The claims [in the two cases] are not the same and the
evidence is not the same. . . . The [Thomas] case
consists of thirty-one (31) individual cases filed
together. Each of the 31 Plaintiff's cases . . . must
stand on its own merits. EEOC's case is obviously much
broader in that it does not allege that any particular
employee has been subjected to a hostile environment.
Instead, it alleges class-wide discrimination and opens
the door to evidence that would be potentially wholly
inadmissible in the [Thomas] case.
R.16 (Opposition to 2d Consolidation Motion ("2d Opp.") at 3-4).
For similar reasons, the company's repeated assertion that
EEOC will rely on the same evidence as was proffered in Thomas is
also disingenuous. In opposing consolidation, Pemco stated that
because "EEOC's case is obviously much broader," counsel for EEOC
and the Thomas plaintiffs would likely rely on different evidence,
reasoning:
[E]vidence that an employee that is not a [Thomas
plaintiff] had a slur directed against him or her would
be admissible in the instant action but likely would not
be admissible in [Thomas] unless a [Thomas] plaintiff
worked alongside that employee and overheard the comment.
Proof that others have experienced objectionable conduct
is the heart of [EEOC's] case whereas it could be totally
irrelevant (not to mention objectionable and prejudicial)
in [Thomas].
R.16 (2d Opp. 3).
Without acknowledging the inconsistency between its present
position and the position it took with respect to consolidation,
Pemco stresses that EEOC's second consolidation motion states that
the same witnesses and documentation would be relevant in both
cases. See, e.g., Pemco Brief at 5. That is true. Since this
suit was filed after Thomas, EEOC, in order to avoid delaying the
proceedings, offered to forego further discovery and rely on
existing evidence if the court would agree to try its case and
Thomas together. See R.15 (EEOC's 2d Consolidation Motion at 6).
Once consolidation was denied, however, both EEOC and Pemco resumed
discovery in this case. See, e.g., R.52 (order extending discovery
until 12/31/02); R.16 (2d Opp. at 2-3) (opposing consolidation on
ground that Pemco could not try EEOC's case without additional
discovery). The idea that EEOC would still restrict itself to the
evidence presented at the Thomas trial is wishful thinking on the
company's part.
Pemco's assertion that the jury verdicts in Thomas resolved the
same issue presented in this case is erroneous. The central issue
in this suit is whether the company maintained a racially hostile
work environment affecting African-American employees throughout the
1990s. See, e.g., EEOC Brief at 36-37. In contrast, the Thomas
jury presumably with Pemco's blessing was asked to and did
determine only whether each of the 22 Thomas plaintiffs who went to
trial was subjected to a hostile or abusive work environment because
of race (EEOC's Motion for Judicial Notice, Ex.B (6/26-28/2002 Trial
Transcript at 19, 39-43). Furthermore, although testimony about
earlier events was admitted as "background evidence," the jury was
instructed that liability could be based only on incidents that
occurred after December 8, 1997 (Trial Transcript at 19). A jury
in EEOC's case need not and would not be asked to decide that narrow
question. Pemco's stated concern that allowing EEOC's enforcement
action to proceed would undermine public confidence in jury verdicts
is, therefore, unfounded. See Pemco Brief at 12. That would happen
only if the public was misinformed about what the Thomas jury
actually found.
4. Pemco's remaining arguments are unavailing. In a variant
of its "same claim" argument, the company argues, without citation
to the record or relevant case law, that EEOC is collaterally
estopped from showing the existence of a racially hostile work
environment throughout the 1990s, because the Thomas jury found that
no such environment existed. Pemco Brief at 33-37. As our opening
brief pointed out (EEOC Brief at 31-32), collateral estoppel applies
only to facts or issues that were actually decided and necessary to
the judgment in that case, and the party to be estopped must also
have had a full and fair opportunity to litigate its claim. See,
e.g., Montana, 400 U.S. at 153-54. These elements are not present
here. First, as noted above, because EEOC was not a party or privy
in the Thomas suit, it clearly did not have a full and fair
opportunity to litigate its claim and, so, cannot be precluded from
proceeding with its claims. Furthermore, the Thomas jury was not
asked to and did not "actually decide" whether a hostile work
environment existed at Pemco even during the limited time frame it
was allowed to consider. Trial Transcript at 39-43.
A similar flaw undermines the company's argument that, even if
the jury decided only that the 22 Thomas plaintiffs were not
subjected to a hostile or abusive work environment based on race,
EEOC is nevertheless bound by that finding and, given the finding,
will be unable to prove that a violation occurred. Pemco Brief at
25-28. Because EEOC was not in privity with the Thomas plaintiffs,
EEOC may proceed with its case even if a verdict in its favor would
be factually inconsistent with the Thomas verdicts. Furthermore,
because the Thomas jury was permitted to base its liability findings
on incidents occurring during only a fragment of the time period
covered in EEOC's suit, it is neither "illogical" nor "nonsensical"
(id. at 26) to think that a jury could find that none of those 22
plaintiffs was subjected to a hostile work environment during that
brief time frame and still find that a racially hostile work
environment existed throughout the 1990s.
Finally, Pemco chastises EEOC for failing to inform the Court
that, the company asserts, there are "over 100" declarations from
African-American employees at Pemco, "wherein those employees
declared they had not been subjected to a hostile work environment."
Pemco Brief at 32. The lack of any citation for these alleged
declarations is no mere oversight. If they exist, these
declarations are not in the record in this case and, despite the
obvious concerns about employer coercion, Pemco does not suggest
that EEOC (or even Thomas) attorneys were present when (and if) they
were obtained. Cf. EEOC v. Mitsubishi Motor Mfg. of America, 960
F. Supp. 164, 167 (N.D. Ill. 1997) (noting that, since EEOC has "a
legitimate interest in communicating legal advice and information"
to persons covered by its suits, employer may discuss past acts of
sexual harassment with potential claimants only in depositions, with
counsel present). In any event, any such declarations would, at
most, be evidence to put to the jury; they would not support a
summary judgment on the merits, let alone a dismissal on preclusion
grounds. Cf. EEOC v. Hernando Bank, 724 F.2d 1188, 1196 (5th Cir.
1984) (discussing such affidavits in EEOC suit under Equal Pay Act);
EEOC v. Johnson & Higgins, 91 F.3d 1529, 1535-36 (2d Cir. 1996)
(EEOC's ADEA enforcement action on behalf of past, current and
future directors may proceed even though every former director
signed affidavit waiving private right to sue under ADEA). And even
assuming Pemco, as it asserts, persuaded 100 of its African-American
employees, outside the presence of counsel, to disavow any interest
in "hav[ing] a day in court" for alleged discrimination, it is
undisputed that there are still at least 64 other employees (see
Pemco Brief at 4-5) more than enough to warrant EEOC's proceeding
with its suit who are covered by EEOC's suit but were not parties
to Thomas and apparently are interested in "hav[ing] a day in
court."
5. Pemco argues that judicial economy would be served by
affirmance of the district court's decision. Pemco Brief at 38-40.
This statement is true only if considerations of fairness are put
to one side. A court faced with two suits by unrelated parties
raising similar claims would expend fewer judicial resources by
permitting the smaller suit to proceed and then barring the larger
on preclusion grounds. Fundamental fairness does not permit that
approach, however, unless the standards governing res judicata
and/or collateral estoppel have been met. See, e.g., Parklane
Hosiery, 439 U.S. at 327 n.7. Here, they have not. As we suggested
in our opening brief, whatever wounds the company would suffer if
this enforcement action is permitted to proceed are, in essence,
self-inflicted. If the company had wanted to avoid a second trial,
it should have gone along with EEOC's repeated efforts to try this
case in tandem with Thomas. Having persuaded the district court
that the cases were too different to be tried together, Pemco cannot
now claim that EEOC's enforcement action is barred because the cases
are too similar to be tried separately.
CONCLUSION
For the foregoing reasons, the Commission asks this Court to
reverse the judgment and remand the case to the district court for
further proceedings.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
________________________________
BARBARA L. SLOAN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of the General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4721
CERTIFICATE OF COMPLIANCE
In accordance with Federal Rule of Appellate Procedure 32, I
certify that this brief was prepared with Courier New (monospaced)
typeface, 12-point font, and contains 6038 words, from the
Introduction through the Conclusion, as determined by the Word
Perfect 9 word counting program.
____________________________
Barbara L. Sloan
CERTIFICATE OF SERVICE
I hereby certify that one copy of the foregoing Reply Brief of
the Equal Employment Opportunity Commission was sent this 4th day
of September, 2003, by express mail, postage prepaid, to:
Stephen E. Brown
Jeffrey A. Lee
MAYNARD, COOPER & GALE PC
AmSouth Harbert Plaza, Suite 2400
1901 Sixth Avenue, North
Birmingham, AL 35203-2618
_____________________________
Barbara L. Sloan
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