Equal Employment Opportunity Commission v. Peoplemark, Inc.

584 Accordingly, we find Alleyne. ticulated in base—was of cocaine or more

grams error, otherwise, regard. and established in this plain indictment no or in the charged recog plea. We have guilty his part Apprendi extension of Alleyne’s nized that V. statutory minimum increase a

to facts sentence is AFFIRMED. Defendant’s our decisions undisturbed sentence left knowing admis a defendant’s holding that necessary for an enhanced facts

sion of the Apprendi his claim. is fatal to

sentence cases). (citing at 601 Yancy, 725 F.3d

See consis Yancy, this is explained As we EQUAL EMPLOYMENT OPPOR description Supreme Court’s tent with COMMISSION, TUNITY (other fact “Any rule: Apprendi of the Plaintiff-Appellant, conviction) necessary which is prior than a maxi exceeding the support a sentence v. by the facts established mum authorized PEOPLEMARK, INC., Defendant- jury or a verdict must by plea guilty Appellee. or by proved the defendant be admitted No. 11-2582. beyond a reasonable doubt.” Unit jury Booker, 220, 244, 125 v. 543 U.S. ed States Appeals, United States Court (2005). 738, 160 L.Ed.2d 621 S.Ct. Sixth Circuit. chal brings That us Johnson’s Argued: Dec. 2012. finding with lenge the district court’s Decided and Filed: Oct. that resulted respect drug quantities range above the minimum but a Guidelines sentence. find no

below the maximum We error, however, because Al

constitutional to facts

leyne Apprendi did not extend prescribed statu

that do not increase

tory Any doubt on this score is penalties. Alleyne by

settled the observation not entail: “Our rul holding

what its did any fact that

ing today not mean does judicial discretion must be found

influences

by jury. long recognized have We discretion, sentencing informed

broad

judicial factfinding, does not violate the at Alleyne, 133 S.Ct.

Sixth Amendment.” States, (citing v. United 560

2163 Dillon 817, 130 2683, 2692, 177 L.Ed.2d

U.S. S.Ct. (2010); Apprendi, U.S. 2348). from

S.Ct. Even aside Johnson’s respect portion to a

concession with him, the dis

drug quantities attributed re

trict court’s factual determination with not

spect quantities to the additional did rights

violate his Amendment as ar- Sixth Lopez, P. David United

ARGUED: Equal Employment Opportunity States Commission, D.C., Washington, Appel- for Baker, Donelson, Young, lant. Edward R. Berkowitz, PC, Bearman, & Caldwell Tennessee, for ON Memphis, Appellee. Lopez, BRIEF: P. David Donna J. Bruso- ski, Equal Employment Op- United States Commission, D.C., portunity Washington, Baker, R. Appellant. Young, for Edward Bearman, Donelson, Berkow- Caldwell & itz, PC, Tennessee, Appellee. for Memphis, Vann, Norris, Tysse, Lampley & Rae T. Lakis, LLP, D.C., Washington, for Amici Curiae. McKEAGUE,

Before: BOGGS and CARR, Judge.* District Judges; Circuit * Carr, Ohio, sitting by designation. The Honorable James G. Senior United Judge District States District Northern McKEAGUE, J., Scott, an opinion delivered Sherri African Ameri- court, BOGGS, J., joined. conviction, in which felony can with a submitted CARR, 595-628), (pp. D.J. delivered application Rapids Grand dissenting separate opinion. office. did not refer Scott for refusal,

employment. Because of this a charge Scott filed of discrimination with OPINION alleged the Commission. She McKEAGUE, Judge. Circuit mark application denied her because of her felony race and record. Equal Employment Opportunity (“Commission”) Commission filed com- an investiga- Commission launched plaint against Peoplemark, alleging light tion in allegations. Scott’s As blanket, companywide part investigation, of the the Commission policy denying employment opportuni- of Osten, communicated -with Judd F. Peo- persons felony ties to records and plemark’s Vice President and Associate companywide policy that this a dispa- had General Counsel. Osten informed the rate on African impact Americans. As Peoplemark Commission that had a com- out, alleged companywide poli- turned panywide policy rejecting appli- of felon cy Eventually, did not exist. the Commis- Peoplemark’s cants. Osten indicated that through joint sion dismissed its claim mo- policy request was not the result of a from parties. tion of the Peoplemark moved for However, its clients. he did state that attorney’s expert costs and and fees. The policy clients knew of the Peoplemark district court awarded fees and that Peoplemark some had told not to $751,942.48. and totaling costs This award refer felons. 1, attorney’s included fees from October 2009, through the of the litigation, end part investigation, As the Com- finding that as of October 1 the Commis- subpoenaed, mission also Peoplemark sion’s claim was unreasonable to maintain. 18,000 provided, more than documents. The award also included all of People- According Peoplemark, the documents expert ap- mark’s fees. The Commission proved Peoplemark that did not have a peals argues the district court decision and companywide policy rejecting ap- felon that court the district abused its discretion plicants because the documents showed imposed attorney’s when it expert Peoplemark job had referred felons to Alternatively, fees. the Commission ar- opportunities. gues the fees excessive. were 2007, In in- September upon based

We affirm the district court’s decision. vestigation, the Commission sent a letter Peoplemark stating the Commis- FACTS Peoplemark sion had reason to believe that had violated Title VII. Commission Defendant-appellee Peoplemark is a on the relied statements of Osten and its temporary-employment agency with offices blanket, Peoplemark belief that had a com- Tennessee, Michigan, Kentucky, panywide policy rejecting appli- felon Peoplemark Florida. an application uses cants, policy which the Commission ar- form that asks applicants they whether gued disparate impact had a on African felony have a record. also parties’ attempts Americans. The to con- independent investigation conducts an into failed, the criminal applicants. September records of all ciliate and on court denied the second motion on ed. The the current action filed the Commission similarly- extend. and a class of Scott behalf alleged complaint persons. situated 2009, July Peoplemark provided In copy with a of its e-database. Commission 2005, Defendant May at least [s]inee again The database indicated em- engaged in unlawful has Employer companywide policy mark did not have facilities at all of its practices ployment rejecting applicants. all felon 703(a) of Title of Section violation 2009, By August the end of 2000e-2(a). § The De- VII, 42 U.S.C. 176,000 In produced over documents. employment practices unlawful fendant’s September, Peoplemark produced about pro- maintaining policy which include previously thousand unknown docu- two any person with a hiring of hibits the ments. policy has had record. Such criminal yet the Commission September disparate impact continues to have to extend the time to again filed a motion applicants. African American expert reports. file The Commission ID # 2.1 Compl. Page R. would claimed that its statistical be scheduling con- held a The district court report by the dead- unable to finalize her subsequent 2009. The January ference in that the court extend requested line and required the management order Com- case February 2010. The court the deadline by the end experts its mission disclose argument additional about wheth- ordered 2009, expert and to submit of June expert’s statistical er Commission’s August 2009. reports by the end of necessary to testimony was even deter- eventually identified The Commission employed categori- if Peoplemark mine The records 286 individual class members. cal, refusing to re- companywide policy Commis- provided by Peoplemark fer felons. however, indicated, that some of the sion 23, 2009, the Commission On October felony convic- members did not have class brief, respond- which supplemental filed felony convic- tions and others who had for additional request ed to the court’s through Peo- employment tions obtained of whether argument on the issue criminal records. plemark despite their expert’s report Commission’s statistical 2009, formally in- Peoplemark In April necessary. The disavowed was even brief that time for first formed Commission theory Peoplemark that of the case having eompa- that denied discriminatory categorical company- had a rejecting applicants. felon nywide policy of policy. argued wide The that Commission that hinged possibility the case on the asked for two exten-

The Commission deadlines, felony con- Peoplemark’s consideration one each in expert sions to the assessing applications victions when had Peoplemark opposed July June and 2009. disparate impact on African Americans. response to the first both motions. viable, if the case was To determine request, extended both the date the court Commission, deadline, through expert, would report and the experts name analyze flow data and current need to though grant long did not as an the court and conduct an adverse- request- had work force data extension as the Commission hiring any person policy prohibits with a alleges Peoplemark had that complaint 1. The that hiring any person felony We therefore review case policy prohibits record. argued by by the district court and parties and the court as decided a criminal record. The parties. Peoplemark had a below focused on whether This, analysis. complaint impact the Commission had a blan- —that contended, ket, People- could establish that companywide policy refusing to re- disparate actual had a im- policy employment mark’s fer felons to opportunities and pact on African Americans. policy that this a disparate impact on African magistrate Americans. The judge magistrate judge eventually granted The sought then to determine when the Com- part part denied Commis- mission should have known that the case sion’s third motion for extension of time to pleaded groundless. as was expert reports. judge file The found that dilatory prosecut- the Commission was The magistrate judge recommended that ing magistrate judge the case. The ex- the Commission should have known the filing expert tended the deadline for re- 1, case groundless was as of October 2009. 31, ports to December 2009. The district magistrate judge The chose this date be- judge affirmed. it provided cause the Commission a little over a month to have reviewed the vast

Peoplemark timely filed its re- majority produced of the documents port in February 2010. Peoplemark. magistrate The judge found Though Peoplemark brought a motion certainly “[i]t unreasonable to 25, summary for judgment February continue this litigation” burdensome after parties agreed voluntarily dis- October 1 because the Commission should prejudice miss the case with on March have groundless known the claim was 2010. The provided dismissal by that magistrate judge date. The also mark prevailing party would be the added that it was unreasonable for the purposes determining who was entitled Commission to maintain litigation after 706(k) VII, § to fees under of Title longer the Commission knew it could no 2000e-5(k). § at 42 amended U.S.C. present expert report. court granted joint motion and dis- magistrate judge then went on to missed the action on March Peoplemark recommend that be awarded Peoplemark thereafter moved for attor- fees, expert finding all of its witness after fees, fees, sanctions, ney’s expert and they that were the kind of “out-of-pocket costs. expenses normally charged by to clients attorneys part which are recoverable as of PROCEDURAL HISTORY statutory attorneys’ the un- award of fees Magistrate Judge’s Report A. magistrate judge der Title The VII.” stat- and Recommendation Peoplemark’s ed that expert was neces- 31, 2011, On March magistrate judge the sary Peoplemark expert needed an — recommended that be award- experts. rebut The Commission’s $751,942.48, ed fees in the amount of which magistrate judge People- also noted that $219,350.70 fees, attorney’s included already paid expert’s mark had fee of $526,172.00 fees, in expert witness and $526,172.00,2 Peoplemark’s and that ex- $6,419.78in expenses. other pert analysis had conducted an extensive including many a determination of how of magistrate judge found that “the alleged victims complaint turned out to be founda- 286 had been hired. without magistrate beginning.” magistrate light findings, tion from the of these judge judge recommended that the Commission recommended the Commission should be gravamen Peoplemark’s expert held of its be assessed all of by expert monthly 2. was billed on a basis. 1, fees; attorney’s date for Octo- ber award

fees, that accrued before even those expert tried to entirety The Commission it imposed ber 2009. when by on its ex- charges relying refute or just fees and not those incurred on after she was astounded pert’s 1; declaration People- it to find October when failed However, expert’s Peoplemark’s fee. expert’s inadequate; mark’s documentation compar- magistrate judge stated that Peoplemark’s when it failed to find work like “com- ing experts’ the two was turning expert fees excessive. Before oranges” apples to because paring arguments we detail the the Commission’s produced report expert mark’s had of standard review. not; had because the the Commission’s had 23.26 expert spent Commission’s ANALYSIS work, on her whereas hours hours; 123.55 and be- expert spent A. of Review Standard all Peoplemark’s expert had done of cause This court reviews district court’s in-house, analysis which substan- his work award fees for abuse discretion. Ad costs, whereas the Com- tially increased Treasury, cock-Ladd v. Sec. F.3d had used an outside data- mission’s (6th Cir.2000). trial “[T]he 348-49 company. management ... judge’s exercise of discretion enti objections filed The Commission deference, especially tled substantial report and recommendation. pre when the rationale for the award dominantly fact-driven.” Id. 349. Judge’s Opinion and B. Order District “Abuse discretion is defined as a defi report recom- reviewing After nite and firm conviction that the trial court objec- mendation and the Commission’s judgment.” committed a clear error of tions, magis- judge adopted the district Logan Dayton Corp., v. Hudson F.2d judge’s report trate recommendation. (6th Cir.1989). 789, 790 The district court rejected The court the Commission’s ob- applies abuses its discretion when prove could jection the Commission standard, legal misapplies erroneous showing a pleaded its case as without blan- standard, legal or proper clearly relies on ket, refusing to companywide policy of re- Adcock-Ladd, erroneous facts. 227 F.3d rejected the Com- fer felons. The court at proper mission’s date argument January fees was assessing all Underlying Legal Principles B. expert argument Peoplemark’s and its sufficiently fees were documented. not 2000e-5(k), § 42 Under U.S.C. a Peoplemark’s The court that all of found may prevailing party court award the in a expert fees should be because awarded attorney’s Title VII action “a reasonable they normally were out-of-pocket expenses fees).” Supreme (including fee clients, charged directly to related were to Court annunciated the relevant standard “were an disparate-impact theory, and assessing attorney’s fees and other integral part defense.” in Christiansburg costs Co. Garment v. E.E.O.C., 412, 694, 434 U.S. 98 S.Ct. 54 now this deci- appeals Commission (1978). Christiansburg, L.Ed.2d In 648 any sion and argues that award fees explained may the Court that a court was inappropriate under the circumstances a in a Title alternative, prevailing award defendant VII of this case. In the Com- attorney’s mission action fees under certain limited argues that district court abused when it fixed an Octo- circumstances: discretion

591 tiansburg, prevailing his a defendant in a Title should not be assessed plaintiff [A] unless a court attorney’s may attorney fees action opponent’s VII be awarded fees if frivolous, unrea- that his claim was “frivolous, finds plaintiffs claim was unrea sonable, plain- groundless, or or that sonable, ... groundless, plaintiff or or clearly litigate after it tiff continued clearly litigate continued to after became And, say, if a so. needless became 422, Christiansburg, at so.” 434 U.S. 98 brought found to have or plaintiff is party alleging disparate- S.Ct. 694. A a faith, a continued such claim bad impact theory allege specific must a em stronger an even basis for there will be ployment practice complaint. See attorney’s him fees charging with the Johnson, 48; at Josey 30 F.3d see also v. by the defense. incurred R. Hollingsworth Corp., John 996 F.2d 422, apply 694. We Id. 98 S.Ct. (3d Cir.1993) 632, (requiring plaintiff 642 against same standard the Commission plead specific employment practice 20, litigants. Id. at 422 n. against other complaint); Kulkarni v. City Univ. of S.Ct. 694. N.Y., 10628(DLC), No. 01 CIV. 2002 WL (S.D.N.Y. 1315596, 14, at *2 June assessing whether district (“Swierkiewicz not, however, granted court abused its discretion when it does relieve defendant, attorney’s fees to a this court plaintiff obligation identify in his previously has considered factors includ pleadings specific employment practice “(1) ing: plaintiff presented whether suffi disparate impact.”); that is the cause of the facie prima cient evidence establish Seasonwein v. First Montauk Sec. cf. (2) case; whether defendant offered to set (3d 106, 111 Corp., Fed.Appx. Cir. (3) case; tle the whether the trial 2006) (requiring in an ADEA case that the ” prior court trial.... dismissed case plaintiffs plead specific employment HCA, Inc., Balmer v. 423 F.3d 615-16 practice challenged alleging to be when (6th Cir.2005), grounds overruled on other claim). A disparate-impact specific em —Vice, —, by Fox v. U.S. 131 S.Ct. ployment necessary compo is a practice (2011). plaintiff 180 L.Ed.2d 45 A plaintiffs required, nent of a claim. As is prima disparate establishes a case of facie pleaded employ a specific Commission “(1) impact plaintiff when a spe identifies practice companywide policy ment —-a employment practice challenged; cific to be denying employment opportunities to fel (2) through relevant statistical analysis exist, policy ons. That did not and the proves challenged practice has an pleaded claim the Commission could not be on a impact protected group.” adverse proved. Dep’t Johnson v. U.S. Health and Hu sure, To be the Commission’s case was Servs., (6th Cir.1994). man 30 F.3d groundless not when Osten’s incor- filed. argu now turn to the We Commission’s company- rect statements there was a ments. policy gave wide the Commission a basis to Attorney’s C. Fees However, complaint. file the the district by court did not abuse its discretion find- The district court did not abuse its ing only rely that the could on Commission it that discretion when found the Commis a up point.3 these statements When prove pleaded. sion could not its case as Supreme explained discovery clearly As the Court in Chris- indicated Osten’s state- policy companywide it a did not exist. The Commission does not contest that knew have 1 that or should known October facts, case; and the court dismissed the case the Commission ments belied upon joint parties, its claim. From motion of the a have reassessed should forward, it unreasonable to agreed was motion in which the point that Commission the Commission’s litigate prevailing party continue that was the claim was based pleaded claim because attorney’s fees. See Bal- purposes that did not exist. policy a companywide mer, 423 F.3d at 615-16.4 The district court, therefore, did not abuse its discre- not focused on the Commission’s We are it tion when it found that was unreason- rather, case, whether the theory of the but for the Commission to continue to able unreasonable, frivolous, or was claim 1, litigate beyond the claim October 2009.5 whether the Commission groundless, or Having determined that the award of at- clearly it became litigate after continued to torney’s proper, fees was we next consider brief, in its admits so. As Commission expert permissible whether fees were also only policy.” The em- “pled it a blanket under these circumstances. pleaded it as a ployment practice —and result, pleaded— claim it direct Expert D. Fees seeks to proved. could not The dissent be 2000e-5(k) attention on the claims focus the reader’s a permits Section court to brought. could have that prevailing party in a Title award VII only to distract us questions (includ- These serve attorney’s action “a fee reasonable Christiansburg, from the instruction fees).” ing expert plain reading A which to ask whether the claim directs us in- statute confirms that fees are alleged frivolous, that was unreason- was within, of, attorney’s cluded or a subset able, groundless. or It was. fees. Because the district court did not imposed its abuse discretion when attor-

Additionally, the factors addressed ney’s Christiansburg, fees under the dis- per- fees were suggest Balmer also trict court likewise did not abuse its dis- prove could not missible: Commission cretion when it imposed expert fees. The prima a claim because the case facie here, inquiry no indica- does not end however. We groundless; claim was there is tion that to settle the must also consider whether the district offered requirement employment-discrimination argues 4. The the district dissent also holding court’s Commission's claims. We are not that the consideration of the Commis- presuit plead investigation grounds for reversal. sion needed to additional facts or do However, anything did not base its more than "create an inference the district court attorney's pre- employment decision to award fees on was based on a dis- decision Instead, investigation. criminatory illegal suit its award it based criterion under the Act” at 1, that, by pleading stage. on the fact October the Commis- Corp., Serrano v. Cintas 884, (6th Cir.2012) (internal sion should claim have known that its 699 F.3d groundless, omitted). finding the Commission does quotation marks Our decision does not contest. district court The fact that the plausibility not rest on the of the Commis- have believed that the Commission should complaint pleaded, sion's claims in its —as known claim was much earlier arguably plausible. claim was But without a groundless determi- was irrelevant to its final specific employment pleading practice the attorney’s nation to fees. award give plaintiff's does not fair notice of the claim, plausible let alone state a claim to argues Iqbal, approach 5. The relief. v. 556 U.S. dissent faults our Ashcroft (2009). heightened pleading imposing that we are 129 S.Ct. 173 L.Ed.2d 868 If Supreme pleaded specific Court in the Commission had not standard. Not so. The N.A., employment practice complaint, v. 534 U.S. in its Sorema Swierkiewicz (2002), 122 S.Ct. 152 L.Ed.2d 1 held that claim would have been dismissed on defen- impose heightened pleading motion. court cannot dant's expert report it for an completed court abused its discretion when award- to be with- 1, 2009,'to in attorney’s ed fees from October three months. Donovan’s estimate was 50,000 it litigation, discovery the end of the when based on of an estimated documents, expert awarded fees incurred before Octo- and when the volume of discov- 1, 178,000 documents, ber 2009. ery increased to lengthened. time frame should have been

E. 1 Award Date October Third, the Commission contends that it complaint could have amended its court did not abuse its state district claim. attorney’s it fees viable discretion when awarded litigation. 1 to the end of the from October arguments fatally The first two are 1,178,000 By discovery October documents flawed. The district court discussed the provided. had been The Commission does expert Commission’s failure to file an re- dispute not that October it should port and Mr. Donovan’s estimate after Peoplemark have known that did not have having already concluded that a fee award blanket, companywide policy and that it appropriate. The discussion of the prove thus could not its claim based on expert Commission’s failure to file an re- discussed, policy. previously that As port does not undermine the district rely Commission could on Osten’s state prior court’s conclusion that an award of only point. discovery ments to a Once attorney’s fees was appropriate under policy that no ex companywide established Christiansburg. isted, longer rely the Commission could no argument third Commission’s proceed on Osten’s statements to on its similarly flawed. That the Commission addition, April People- claim. complaint could have amended its is beside mark informed the Commission that no point. The Commission could not existed, July companywide policy prove complaint a case based on the 2009, Peoplemark provided the Commis filed, attempted and the Commission never copy sion with a e-database complaint. to amend its companywide policy revealed that no exist un- clearly arguments being ed. The district court did not err The Commission’s facts, in finding persuasive, these and it did not abuse the district court did not abuse it discretion when concluded as of it its discretion when awarded October 1 the Commission should have expert attorney’s fees incurred after prove known it could not its claim as October 2009. must next consider We pleaded. whether the district court abused its dis- cretion when it awarded arguments The Commission’s to the con- expert predated fees that October trary do not undermine the district court’s First, findings. alleges the Commission Expert F. Pre-October Fees judge that the district abused his discre- question This the issue of raises by considering tion the Commission’s fail- expert whether an award of fees must expert report argues ure to file an attorney’s cover time as same if the court on the relied failure to tempting fees. It would be to hold that a expert obtain an report, then the district may only expert tempo court award fees court should have awarded fees from Janu- rally attorney’s concurrent with awarded Second, ary onward. the Com- may fees. While well be reasonable alleges mission the district court judge for a to award considering erred in the statement of Mr. some cases district Donovan, attorney’s fees—as a subset of the Commission’s in-house ex- pert, might possible period who stated that it be fees—for the same time that attor-

594 format, awarded, into a reviewable and re- this does not mean convert are ney’s fees during expert fees incurred view the documents and other materials awarding that always unreasonable. forming opinion is in the that will period a different considered opinion. underlie her awarding expert fees for The benchmark reasonableness —a the statute is timely under Because a failure to com attorney’s “a reasonable may court award expert the plete report prevent will fees).” 42 (including expert U.S.C. fee trial, testifying may from which be fatal 2000e-5(k). given is a § The district court claim, party’s experts to a cannot wait and to con- amount of discretion considerable granted if is or if disposition see a motion appropriate award of fees is sider what beginning a case becomes frivolous before fact, there under the facts of the case. the court dismisses the their work. Until as written that nothing the statute voluntary parties agree case or the to a temporal concurrence between requires dismissal, testifying expert’s all of the attorney’s fees. expert and necessary the formulation of the work is expert’s opinion preparation and the of the holding temporal that concurrence Our view, expert’s report. long In our so required by is confirmed the fact is not reasonably in prevailing party acted may proceed on a schedule experts that hiring expert, the fees incurred were attorneys that if the on the distinct from reasonable, by Rule of the work conducted was rea required case. As Federal 26(a)(2), sonable, testifying a ex- from Civil Procedure the standard Chris fees, report permits an pert prepare tiansburg expert must contains award permitted a court should be to award a (i) opinions all complete statement of prevailing party’s expert independent fees express the witness will and the basis attorney’s of limitations the award of them; reasons fees. (ii) by the facts or data considered them; forming

witness in Accordingly, we hold that the district (in) any exhibits will be used to not court did abuse its discretion when them; support summarize or entirety expert awarded of the fees (iv) by qualifications, Peoplemark. includ- incurred The district witness’s ing publications all authored in court that Peoplemark’s expert list of concluded years; previous necessary defense. (v) expert The district court reviewed the fees which, all a list of other cases by Peoplemark incurred and found that years, during previous the witness they Having already an were reasonable. expert depo- testified as at trial or sition; permitted found the court was expert Christiansburg, award fees under (vi) compensation statement the court was within its discretion to study testimony for the paid be entirety Peoplemark’s expert award the the case. fees. 26(a)(2)(B). Preparing an Fed.R.Civ.P. require often

expert report will consider- Expert G. Documentation of the Fees expert able amount of time. Once an re- argues Commission also set, port expert deadline is must the district court abused its discretion be promptly begin her work in order to com- inadequate cause there was documentation deadline, plete required report by Peoplemark’s expert agree fees. We particularly in a complex case with strin- gent party An with the Commission that the seek expert deadlines. often works independently fees attorney gather, ing fees must document argues expert sion that the the work done. The statute fees were ex- incurred and expert expert the fees be reason- cessive because the Commission’s requires able, pres- did not moving party Peoplemark’s expert and if the found fees “astound- adequate because, documenta- ing” opinion, ent the court with and in her she would tion, no basis for the court there would be charged have hundreds of thousands of the fee was reasonable. to decide whether dollars less to do the same work. Howev- er, say that we cannot the district court Commission, disagree with the how- We abused its discretion when it concluded ever, the documentation of that the in experts difference cost between inadequate. fees was expert mark’s in light was reasonable of the facts that in motion for at- expert’s declaration the Peoplemark’s expert timely report, filed a entirety torney’s fees contained the of his expert whereas the Commission’s never bill, analysis the data including entries for completed report; that the Commission’s total, by twenty- his firm. In the bill filled expert spent only had 23.26 hours on her pages four and listed over 600 entries. work, Peoplemark’s expert whereas entry Each the work done itemized and hours; spent 123.55 and that expended the time on the task. While the in-house, expert had done all of his work in performed entries listed the work expert whereas the Commission’s had used single phrase or as “re- word short —such management data company. outside search,” preparation,” “document and reasons, For these the district court did “telephone conference and review”—in the not abuse its discretion. bill, general context of the entire these descriptions enough are for us to conclude CONCLUSION the district court did not abuse its reasons, AFFIRM foregoing For the we when it found that the fees discretion were the decision of the district comb. sufficiently documented. CARR, Expert Judge, dissenting. District

H. Excessiveness of the Fees reviewing After the record1 and decision argument The Commission’s final court, similarly I am left with a unpersuasive. Commis- of district simply put, my disagreement to finish her work and submit the Most with six weeks report, this situation would not have arisen. majority’s analysis my and result arises from dissent, report, easy say reading, explicated expert's it is different as in this Without the hindsight that the EEOC a com- case was majority of the record. Where the sees mis- plete the lower court did misfire. Because part focus and dilatoriness on the of the very grant request for a modest not EEOC, gain I see an effort to information to to finish the work on the amount of time refocus and reassess the defendant’s conduct report, say we neither it nor can that in fact and, practices, importantly, obstruc- agency’s there “no there there” to the was part tive tactics on the defendant’s that need- report claim of discrimination. While her lessly, successfully, up but ate much of the assessment, may may have it confirmed discovery. That time the court allocated provided qua also have the sine non evidence effect, causing delay success had a domino in placement sufficient to discrimination acquisition and the EEOC's assessment prevail. enable the EEOC to (which vastly crucial information more I remain convinced that lower court anticipated). extensive than the EEOC had allowing very its discretion in not abused That, turn, plus unanticipated delays in additional time needed to com- modest bit of creating expert’s the database essential to report, plete expert’s which was crucial to analysis, production expert made of her re- so, doing disregarded the court its case. port impossible. deadline within the final the cumulative effects of the defendant's ob- given Had the additional the court stages during structionist tactics earlier processing analyzing Peoplemark’s trial firm conviction that the “definite judg- a clear error of As employment application court committed documents. fees and costs to Peo- awarding such, retracing ment” risk of a few of Dayton Corp., v. Hudson Logan plemark. discusses, I steps majority begin Cir.1989). (6th A dis- 865 F.2d lengthy description a rather its discretion when trict court abuses investigation pro- and lower court presuit standard, legal mis- an erroneous “applies ceedings. standard, legal or relies proper applies facts.” Id. clearly Background erroneous I. Factual v. Christiansburg Garment Co. Com- In Investigation A. 694, mission, 98 S.Ct. 434 U.S. employment Peoplemark temporary (1978), Supreme Court L.Ed.2d 648 agency, place- which refers individuals for attorney’s held, not assess a court should client-employers. company ment with the court against plaintiff unless fees primarily provides light workers for indus- frivolous, her claim was finds that his or jobs, packaging, warehousing, trial such as unreasonable, groundless, or or that assembly, operations. and some machine litigate after it clear- plaintiff continued receptionist It assigns people also some thorough review of ly became so. After cur- positions. Peoplemark and clerical record, clearly erroneous I find it was rently Rapids, has four offices: Grand conclude both that the for the trial court to Tennessee, Michigan, Memphis, Owens- Opportunity Commis- Equal Employment boro, Orlando, Kentucky, Florida. (EEOC) case was meritless from the sion’s the EEOC should have it also had an additional office outset and that Until Livonia, its case was meritless as of known that Michigan. clearly I find erro- 2009. also October Charge and Statement of Position

neous, the court’s conclusion of the case was so prosecution EEOC’s In May, charge Sherri Scott filed a justify as to an award of unreasonable against Peoplemark of discrimination with reasons, fees. For these addressed alleged the EEOC. Scott that after she below, I respectfully more detail dissent. applied Peoplemark at the office in Grand fairly To assess both reasonableness Rapids, Michigan, Peoplemark’s interview- prosecution of the of the case and EEOC’s er told her she would not be hired because itself, necessary the case it is merit of felony alleged she had a conviction. Scott lay in the lower proceedings out the Peoplemark rejected application her court in considerable detail. One cannot felony because of her race and conviction. fairly propriety assess the of a fee award From 2005 to 2007 the investi- reading in this case a close without gated charge. Only documents filed with the court. investigation, At the outset of the Peo- through thorough review of the docu- plemark provided the EEOC with writ- the variety ments can one understand position conceding ten statement of that it employment application content of the ma- uniformly rejects felon candidates. Peo- provided terials that to the confirmed that its interviewer plemark discovery. during On must also told that she could not continue in Scott thoroughly review the documents to un- application process derstand the EEOC’s considerable task of because she had putes enhance the effectiveness of those tac- case. The time the lower court took to re- spond generated discovery to the defense dis- tics. letter, in- Peoplemark also his second Osten stated that

prior convictions. Inc., Peoplemark, that it handled similar- never hires felons. formed the EEOC Os- explicitly ten did not state whether he was with convictions. ly all candidates referring to all offices: its client’s refusal argued mark “security, safety, for and other hire felons practice Respondent It is the not to provided reasons” legitimate business accept applications placement for appropriate jus- business company with temporary assignments of individuals rejecting felon candidates. tification for felony conviction records because they pose great Respondent too a risk to a. Letters from Chief Counsel ... Respondent’s and its clients clients generally are aware that it does criminal Throughout investigation, the EEOC’s (Osten), background on all of President and checks its candi- Judd Osten Vice Peoplemark, temporary placement, continued dates for but [Re- Chief Counsel spondent] independent not hire has made no in- Peoplemark to assert did which, quiry any, of its clients as to if felons. Osten sent letters to the EEOC on accept personnel felony would with a 2005 as well as June October conviction record. It expressly stating that has received no December any rejects applicants. request assign- all felon from client for the Peoplemark employee felony ment of an with a con- letter, provided In his first Osten infor- following viction record. The [four] Rapids office. specific mation the Grand orally have Respondent clients advised He stated that the office uses a bifurcated they anyone do not wish to have process ap- to screen out felon application felony assigned with a conviction to their so, stated, It he because plicants. did Zondervan; Pridgeon Clay; accounts: & Peoplemark’s client-employers refuse to Industries; Team and Adac Automotive. employ felons. during In his third and final letter step process first in the an involves investigation, explicitly Osten stated sheet, applicant information on which an Peoplemark company-wide practice had a only indicates his or her name and wheth- rejecting felon candidates: existing pending or er he or she has “stipulate practice will that the of screen- felony charge ap- or conviction. After the ing felony applicants out conviction sheet, a plicant fills out the information records, matter, at the core of which is this public staff member searches the record to throughout is used all of our offices accuracy applicant’s confirm the dis- country.”2 felony con- Applicants closures. without proceed step filling charge, viction to the second Based on Scott’s Osten’s state- — ments, 18,000 employment application. covering out an cover sheets3 Contrary Peoplemark’s repeated applicant asser- and whether he or she disclosed only felony tions that Osten made this statement conviction. Based on case, during investigation phase during representation of this that it hired no felons that, period, Osten asserted the same belief in his Decem- at a this the EEOC assumed time, minimum, deposition. long applicants ber At that after those who had disclosed stated, pending, again temporary this suit had been he placed in a conviction were not “generally maintained positions. From there the EEOC used statis- practice hiring well-known” of not felons. percentage of tical formulas to estimate the It those individuals who were black. used only year methodology attempt to conciliate the a one this 3. The cover sheets covered period and indicated the name of an case. 9, 2009, Magistrate Judge Rapids January On applicants the Grand year one office, management conciliate held a case conference. attempted to ultimately parties set deadlines: The EEOC was dispute.4 matter. It issued conciliate the unable to 1) identify experts: 6/30/2009 Septem- letter of determination cause 2) expert reports: produce 8/31/2009 10, 2007. ber discovery: close of 12/31/2009 4) bench trial: 7/16/20105 Filing and Initial Case B. Suit Management Order Discovery Disputes C. and Electronic Deadlines Production Document 29, 2008, the EEOC filed September On discovery without inci- proceeded Had District Court for suit in the United States delays, original dent and attended Michigan on behalf District of the Western given have sev- deadlines would African similarly situated of Scott gather en and a half months to information Americans. reports. produce alleged: The EEOC Unfortunately, discovery un- was not Em- May at least Defendant discovery disputes Since eventful. Two con- engaged employ- has unlawful ployer approximately sumed five of the seven and all of its facilities in practices ment expected a half months the EEOC to have 703(a) VII, of Title violation of Section for factual gathering pre- information and 2000e-2(a). § The Defen- expert reports. U.S.C. paring Various discov- employment practices motions, conferences, dant’s unlawful ery related pro- which maintaining policy include a hearings occupied parties the from Febru- any person with a hiring ary hibits the of early August, to 2009. policy

criminal has had record. Such Discovery Dispute 1. # 1: disparate impact and continues to have a Peoplemark’s Demand for applicants. on African American Complete Class List practices complained The effect of the 7, above, discovery to paragraph dispute of in has been The first arose be- Af- deprive similarly provide People- situated cause the EEOC could not Scott mark equal employment complete rican Americans of with class list at the 4, 2009, adversely discovery. of opportunities February and otherwise outset On single interrogatory for em- filed a applicants affect their status as list, ployment. asking including for a class contact average agencies, wage temporary the EEOC and duration Unlike other federal of EEOC, investigations gather the does not use its assignment. According to the it never possible maximum amount information to of particular claimed to have identified individu- prosecute agency administra- cases within the during al victims or amounts owed to them only hearing process. tive The EEOC aims investigation. gather enough par- to move the information agreement settling ties toward an informal 5. At the Rule 16 conference the EEOC asked charges of in- discrimination. See discussion postpone experts parties the court to until the alleges during The EEOC the concil- fra. completed discovery. rejected fact The court approach pro- iation it used a formulaic request the EEOC’s and shortened the discov- pose backpay group an amount of for a of ery period proposed the EEOC fifteen to from hundreds of African Americans. It calculated discussion, twelve months. See infra. proposed settlement amount based on placed, applicants’ per- nor did it have the information, candidates that all of black information —it could of sonal identification because placement had been denied accurately appli- identify not the race re- The EEOC felony convictions. their personal without their information. cants Peo- provided previously it sponded contact infor- the name and plemark had, word, Magistrate Judge In a early it was too Scott and mation of Sherri case, placed in a early on rest of the class. identify classic situation —from which the Catch-22 itself.6 EEOC was never able extricate interrogato- Peoplemark’s At the time of records the EEOC only company ry, discovery dispute, To resolve the 18,000 initial informa- were the possessed guess to a list provided its best in the completed applicants sheets had tion with individual claims for persons of 286 during year a one Rapids office Grand providing potential relief. On the list of ap- The sheets contained period. victims, position, the EEOC reiterated they disclosed names and whether plicants’ in its answer to previously stated sheets did not felony conviction. The only a interrogatory, mark’s that this was any or other applicants, contain the race of victims, possible not potential list some from information personal identification stated, alia: a class list. The EEOC inter identify race with the EEOC could which Although investigation uncovered accuracy. any degree reasonable applicants with criminal rec- number Peo- not indicate whether sheets also did American, African ords believed to be any of the actually placed plemark yet the Commission has not determined felony noted a convic- applicants who had of the class and is in the magnitude sheets. tion on the information gathering additional informa- process of discovery Defendant so tion from Compel a. Motion may identify the definitive class Response and the EEOC’s litigation. of this purposes answer to with the EEOC’s Unsatisfied timely On March Peoplemark filed a mo- interrogatory, its Peoplemark’s to first served its Answer Magistrate Judge compel. tion to Interrogatory: the motion and sanctioned granted Identify by NO. 1: INTERROGATORY a class list in failing produce EEOC for to every indi- each and name and address interrogatory. response Peoplemark’s to has been dis- you whom maintain vidual a produce EEOC to judge ordered the alleged em- against by the criminated by May 2009. class list which is the ployment policy/practice subject lawsuit. of this compel to response In to the motion order, Judge’s previously the EEOC identi- Magistrate Plaintiff ANSWER: Scott, Broadway, Apt. impossible produce that was fied Sherri explained 2G, Niles, extent this class list without all MI 49120. To the complete or accurate of in- interrogatory records for the seeks the identities Peoplemark’s of application Scott, re- than Ms. this had no dividuals other period. time The EEOC relevant discovery pre-mature because Peoplemark quest had is applicants of which record had, records, they view, felony and whether Magistrate Judge’s order had my 6. In record, placed despite felony been plain error. It ordered constituted —that interrogato- comply with the membership EEOC needed to identify without basis class Judge compounded Magistrate ry. The being The information able to do so. when he im- his discretion provided error and abused Peoplemark was barren of they posed applicants, whether sanctions. data —race of basic application recently on-going. has commenced and is ment instead of all docu- develop Plaintiff the class of application pro- will victims ments related to the discovery and during supplement Second, this nothing cess. there was at a later time. response Peoplemark produced the documents discovery applicants. which revealed the race of [I]n an to resolve effort this dispute, willing pro- Consequently, required part the EEOC is as you regarding investigation, vide with information the Commission took applicants investigative further believed to be African measures identify applicants by American and who had disclosed race to the ex- applica- possible. light tent criminal convictions on their Peoplemark. no-felony-conviction policy, tion with mark’s Based on De- all representation applicants felony fendant’s that no indi- convictions felony during investigation vidual with a identified conviction was hired, we believe that individu- African American were these treated as the may part putative group by als form class of victims harmed However, policy. instant case. please Accordingly, be ad- attempted vised that the repre- EEOC makes no Commission to concili- putative sentation that this list all ate this is inclusive as matter based on this upon group it is scope based the limited victims who it believed were Peoplemark provided information harmed policy. Defendant’s during investiga- the administrative Regardless, parties now that the are in tion. Consequently, anticipate we litigation, required the Commission is may individuals be removed from and define the precision class with more added discovery to the list as prog- has served with written dis- resses. discovery Until substantial (which covery requests requests include completed, magnitude of the class for all previously incomplete application cannot be determined. materials and all applicant information argues present) because it in an effort to obtain produced large employment volume of information needed to determine the applications documents, and other scope dur- and identities of the class. ing what it describes as an “extensive” added). (Emphasis investigation, administrative the Com- Discovery Dispute # 2: The EEOC’s mission should have established the Interrogatories First Set of and Re- during investigation class ... De- quests for Document Production fendant argument is incorrect in its for First, several sending reasons. Prior to interrogatories the admin- its own 4, 2009, investigation istrative on March was not as over EEOC underwent a broad comprehensive as Defendant attempts suggest. drafting process with its fact, In electronic experts. Commission made several document While still compromises working to regarding scope discovery of its resolve the first dis- documentary requested pute information EEOC served its first set of limiting the time frame interrogatories to March 2004 fifteen and document re- through 20067, seeking November and quests Peoplemark. Unfortunately, the only page employ- the first of each format of the interrogatories EEOC’s gave 7. Ultimately, Peoplemark emails between year and one of information sheets. the EEOC only show that the EEOC received mutually agreeable and-place at a time consuming discovery time a second rise to Tennessee, Florida, Michigan, its offices dispute.8 Kentucky. response, In EEOC days, People- eighty approximately For compel withdrew its motion to inter- answer the EEOC’s mark refused to a numeros- July, Peoplemark made into had still Peoplemark Well rogatories. subparts questions specific dates when the ity argument: provide failed to thus, questions, actually as additional documents would be available counted in- seventy really company’s served at the various loca- the EEOC the EEOC of the limit of twen- terrogatories, instead tions. management or-

ty-five stated in the case ninety passed Nearly days between attempts to obtain repeated der. After document re- time the EEOC served the the EEOC interrogatories, answers to its Peoplemark agreed to quests and when clarify the manager the case contacted the documents. produce manager The case subparts. local rule on subparts were al- told the EEOC Request for Electronic 3. The EEOC’s answer the Peoplemark lowed and should Document Production interrogatories.9 lengthy fight gather informa- After 2009, finally May Peoplemark

On types of electronic records tion about what interrogatories. answer all the agreed to maintained, asked Peoplemark the EEOC However, pro- refused to Peoplemark still its e-documents. Peoplemark produce requested employment applica- duce 22, 2009, Peoplemark served On June information sheets. tions and pro- for request to the EEOC’s answers 22, 2009, filed a May the EEOC On applicant electronic data. Peo- duction of appli- compel production motion to provide the data at a plemark agreed cations and information sheets. mutually convenient to both time mid-July Peoplemark pro- 2, 2009, parties. received a

On June of an e-database duced its first version People- correspondence from supplemental applicant information. The with limited stating that it would make the docu- mark placement in- applicant contained copying inspection database ments available for Manage- interrogatory parties should construe the Case Although sample in the twenty question ac- appears five limit complex, segmentation ment Order’s record is immediately conveyed cordingly. help, an effort to not hinder to be Peoplemark. May On this information to mark. 2009, Peoplemark emailed the EEOC and inappropriate for the EEOC that it was stated interrogatory dispute how the 9. The details of independently on the to contact the court 7, 2009, response proceeded April In its are: 20, 2009, May subpart issue. On EEOC, in- answered to the remaining interrogato- offered to answer 3(b). Peoplemark terrogatory refused to No. agreed would not ries if the any responsive to the produce information interrogatories without seek- serve additional requests application documents. EEOC’s rejected the ing The EEOC 30, 2009, the court’s leave. May April April On Peoplemark needed proposal and stated that numerosity parties the the discussed remaining interrogatories with- 7, 2009, answer the Peoplemark to May an- On issue. compel. days avoid a motion to through in ten to interrogatories the EEOC's swered remaining interrog- 6.c.(2), Peoplemark answered the asserting numerosity the same No. atories, 18, 2009, produce the to but it still refused argument. May the EEOC con- On sheets the clarify applications and information manager the tacted court's case to interrogato- requested in its first set of manager subparts. case EEOC local rule on The request production of documents. for permitted subparts and ries and that the court advised offices, but, of the five Over the next week the un- for three EEOC tried formation EEOC, agency successfully Peoplemark’s to reach attor- according to the ney much of the information numerous times. unable to access provide to Peoplemark because failed 29, 2009, day On one June before the necessary passcodes. The agency with initial deadline for disclosing experts, Peo- alleges Peoplemark did not EEOC plemark’s attorney abruptly reversed provide fully a searchable database until course and informed the that the EEOC mid-September 2009. company longer willing stipulate was no Peoplemark revised deadlines which D. Motions to Case Extend/Amend initially proposed. day, had The same Management People- Order immediately learning after that People- mark’s Document Production mark proceed planned, refused to as 1. First Motion to Extend: request EEOC filed its first to amend the

June management case order. 16, 2009, Peoplemark’s attorney On June In its first motion to amend the case propose order, phoned management the EEOC to two month explained experts. extension of the deadline to name discovery disputes that two had consumed discovery disputes time, The extensive had con- discovery more than five months of sumed the first five months of the discov- and that the tried unsuccess- ery period. original case man- fully Under to reach an agreement for amended agement order the EEOC had two management case deadlines People- with collect, scan, remaining copy, months mark. proposed The EEOC new dead- streamline, code, statistically analyze, and lines:

report years applicant on four data lo- 1) identify experts: 9/4/2009 cated four different states. 2) produce expert reports: 2/5/2010 3) concurred with discovery: close of 6/30/2010 request mark’s and added that an exten- proposed EEOC’s amended case reports sion producing expert was also management agency order allowed the necessary. The EEOC stated 1) little over seven copy months to: would need considerable time to obtain the scan information at offices in documents, data, process produce 2) states; four different send ap- the raw analysis. an expert plications, sheets, information and other On June EEOC followed employee documents to document pro- up regarding extending e-database; cessor to create in the management deadlines case or- send the e-database to its statistical expert agency provided code, der. The formulas, run statistical and write proposed with its amended an expert analysis.10 deadlines. throughout discovery,

10. At Although various times step a statistic’s could do this well, expert, explained EEOC's economist Dr. cheaper Madden that it statistical/labor Madden, support Janice filed affidavits in and more efficient to outsource the first task requests processing company. EEOC’s to extend According deadlines. data Madden, explained processing place She data complete, took Dr. after e-database is parts experts in two and was the most time numerically consum- team of must code the First, ing phase analysis. descriptive of statistical a doc- data listed in the e-database so processor plugged ument needs to create a uniform e- that it can be into statistical formulas applicant computer. explained database of information from the on a Dr. Madden variety applicant/employee coding of raw materials. task: access to the documents at the mo- be allowed 6, 2009, filed a July On the dismiss, the court denied locations. which four tion to day. next addition, explained that it In the EEOC 16, 2009, granted the Court July On law use a bid- by federal required the identifica- for both thirty day extension hiring for outside vendors ding process of ex- production and the experts tion of The EEOC de- expert witnesses. allowed the The court also reports. pert it had steps the numerous scribed days of dis- fourteen an additional parties in month and a half since Peo- taken the gave covery. This de minimis extension the documents plemark agreed to make collect, two months to the EEOC 1) consulted, as re- the EEOC available: scan, code, analyze the copy, process, Research and quired, EEOC’s People- in contained applicant information Division, which deter- Analytical Services mark’s records. and experts mines the number of vendors immediately informed the The EEOC 2) case; likely to be needed for a to meet the that it would be unable court initiated, bidding pro- attorneys EEOC order. management case first amended cess, pro- required, as to hire document were parties that the responded The court 3) witnesses; expert and two cessor by the and be heard free to file motions approval of the attorneys obtained EEOC further extensions. on the issue of court 21, July on processor contract document 2009; attorneys recom- Motion to

2. Second/Renewed approval. formal experts two for mended July 23, 2009 Extend: it was acknowledged The EEOC 23, 2009, July on Accordingly, expert awaiting approval formal still requesting motion filed a renewed expect them to be contracts and did not it had asked extended deadlines the same remaining in before approved the week 29, to amend the motion its June The EEOC identification deadline. order.11 management case suggestion that the court’s further stated reiterating the substantial addition conference July in the status discovery disputes had time the amount of in house research the EEOC use its small consumed, why the explained analysis was not the data complete staff to copying and failed to start agency feasible. scanning paper records Tennessee, Michigan, mark’s offices had not experts Although the EEOC’s Florida, Kentucky. the court’s formally approved within been deadline, the EEOC expert identification although, on

The EEOC stated to obtain ultimately able attorneys were to make agreed Peoplemark had June government approval from exceptional mutually con- available at the documents experts July identify two time, yet pro- had not venient the court’s deadline. would meet date when the EEOC vided a formal data,” ap- indicating whether "1” for a variable using "coding I am By the terms (or graduate with a process by high which the electron- referring plicant is a school trans- entry alphameric graduated). information ic not who has “0” for someone that a statistical into a variable format formed example, interpret. requested For an additional week program can 11. The EEOC hypothetical entry item such data account to take into for each deadline high could be “graduated Central school” holiday. Christmas years of education or as as “12” for coded expert sociologist, identified cols within the can’t agency agency govern The Pager, expert Dr. Devah and labor econo- procedure civil process, agency and [the mist/statistician, Dr Madden. Janice good to have faith at the start.” had] The court to express went on concern Hearing a. on Second/Renewed sixty days that the EEOC waited to serve to Extend Motion interrogatories, its first set of to which the August On after the EEOC responded that during EEOC time experts, identified its the court held a agency working diligently was with its hearing on the EEOC’s second/renewed electronic experts document to craft management motion to amend the case interrogatories Peoplemark. The transcript hearing of the order. The re- agency stated that it needed to see what misunderstanding veals the district court’s Peoplemark produced in its Rule 26 disclo- nature and extent of the of the EEOC’s: begin drafting sures before it could its first 1) preparing expert task of statistical interrogatories. set of report, presuit investigation pro- proof the cess-the statistical EEOC was The explained that after receiv- required gather filing before suit. I disclosures, ing Peoplemark’s Rule 26 hearing length at discuss because I agency’s attorneys experts underwent believe the lower court’s flawed under- joint an extensive drafting process. This standing highly relevant to both the EEOC, necessary, according to the inquiry procedural merits analy- abuse because the interrogatories first set of that the lower court performed sis before sought regarding information electronic assessing fees. systems storage and formats of electroni- began by stating ap- cally reason,

The court that it stored documents. For this plied “good cause” standard to granting attorneys simply could not standard, motions to amend. Under this interrogatories draft the they themselves — required the court party to show that it computer were not experts. diligently acted but was still unable to The EEOC also clarified for the court meet the established deadlines. The court that it simply modify could not an existing expressed its concern that the EEOC act- interrogatory Rather, template. based on dilatorily ed immediately, when failed or provided Peoplemark’s documents Rule quickly, least more experts. to obtain its disclosures, the EEOC needed to craft responded The EEOC that it had acted interrogatories specific to the electronic diligently, but it was still unable to pro- programs they believed were use at reports duce its on time. The Peoplemark’s offices. stated began process that it replied The court that the EEOC could researching, writing, revising expert have limited the number of contracts in January December 2008 or offices that it included the suit if it was (less 2009 at the latest than one month concerned about meeting deadlines. The case). filing after agency also court also stated that it generous had been explained that regulations federal required scheduling and never had such issues it to follow a bidding process for hiring government with a litigant. experts, vendors and and the EEOC attor- neys could not legally circumvent the in- opinion, the court’s coming “[P]art agency protocols. ternal having put to court is the court reasonable

In response to explanation parties the EEOC’s limits on and see which make it of its efforts the court “proto- through stated that process parties and which proceeded reprimand way we drive court don’t, part and that’s filing compel a motion to EEOC for not to a result.” in setting after stalled a date although that the responded The EEOC production. responded for The EEOC contribut- protocols internal government’s given that it hesitant the court’s reso- was ability to delay in the EEOC’s to some ed motion to and the compel lution of its first copying and go out and start physically earlier award of sanctions. court’s documents, government’s the scanning of the hear- Throughout the remainder the not the sole or even protocols were to in ing, speculate, the court continued to was unable main reason the EEOC affidavit, that it the face of Dr. Madden’s meet the court’s deadlines. copy, the to might possible be EEOC discovery dis- reiterated the The EEOC scan, e-database, code, analyze, an create and second out in both its first putes laid sixty in the next produce report management case to amend the motions firmly maintained that days. The EEOC if argued that order. The EEOC absolutely it for it to do so. impossible was to two months mark had not waited over stated that it was to iden- EEOC able interroga- first set of answer the EEOC’s it obtained ex- tify experts only because ninety days agree to to tories and over ceptional approval, physically but it was documents, then, despite delays produce necessary to impossible to do the work regulations, by government caused expert reports sixty days. in produce to re- likely would have been able firm state- response to the EEOC’s gather secure someone to quest and absolutely impossible that it Furthermore, ment much sooner. documents complete steps required produce all the processing the EEOC was during the time sixty days, in the court expert report it could have finalized those documents retorted, suspecting September “I’m in who, up to contract for its statistical reports] producing expert deadline for [the process, would have been point that may pow- another vision of how you have totally unnecessary. you really erful and effective are.” response The court’s was: lengthy dialogue between the After the Well, part the documents addresses EEOC, Peoplemark announced court and expert report you make the whether it all of its offices to send had asked deadline, that. I and we don’t know by the EEOC to requested the documents mean, July, you didn’t when we talked that it had Memphis. Peoplemark stated [expert think make the identifica- you’d from already scanned all of the documents deadline, you did disclosure tion] Rapids company office. The the Grand you report if have a deadline ... And information onto put stated that it had still, what, days away, even that’s day and the before sent discs two discs now, though impossible seems it Peoplemark stated that to the EEOC. too ... Or maybe you’ll make remaining for the of- would do the same maybe you’ll come close or make it fices. will part. maybe having Or deadline it you’d get a lot closer to responded surprise mean The EEOC immediately if were you than would the deadline decision scan mean, reality I all of the documents. The produce extended. company’s offer agency resources that we stated that deadline is marshals light previ- shock in of its just quite had. That’s came as didn’t even know we provide the documents ous refusal what a deadline does. agreement, ninety day pieces its reluctant after a of paper, approxi- rather than the wait, provide 50,000 the documents after mately pages agency had ex- protective the court issued order. The pected to receive—an increase of more that, assuming the court told than 250%. complete, Peoplemark’s discs were offer to The fact that Peoplemark produced copy paper and scan the records would 250% more documents than the EEOC had reduce two weeks the time the EEOC originally anticipated considerably added produce expert reports. needed to to the amount of time the EEOC’s data court hearing by The closed the restat- processor pull needed to information from ing that it still believed the EEOC could applications and enter the information necessary “marshal the resources” to meet Quite into standardized format. simply, deadline, if but the EEOC was unable more applications required more process- so, to do then it could approach the court ing time. The EEOC’s document pro- again sixty days the next to discuss the cessor stated in its affidavit in support of matter further. the third renewed motion to extend that 7, 2009, August On formally the court 1,000 each pages additional likely would denied the EEOC’s mo- second/renewed require an additional one day business tion to amend management the case order. process. The processor EEOC’s document also Peoplemark’s I. Document Production informed the court that there had been a Hearing After the on the Second noticeable deterioration in data CDs Peo- Motion to Amend: 8/11-9/17/2009 plemark first, produced. At Peoplemark 11, 13, 14, August 17, 18-21, 25, On provided the neatly EEOC with labeled September 17, 2009, the EEOC received documents, images corresponding containing discs full paper application in- text, which presented was in a logical, formation. The EEOC made forensic cop- well-named hierarchical folder schema. ies of the information overnight mailed on, As time Peoplemark went longer no the discs to its document processor. organized or labeled the documents ac- Thus, for the first litigation, time cording any presentation ascertainable the EEOC had in its hands the data it schema. put failed to compile needed to its analysis, statistical electronic documents in folders. prepare experts reports, its and ascertain mark’s organization reduced forced the with a significant degree certainty those processor document to have to wade persons who would be class members. through non-eritieal documents such as 1-9 fact, Despite agency this found itself drug forms and test consent forms to find between Scylla of the work it needed applicant relevant information that it to do an Charybdis of the court’s inflexible needed to complete an view e-database for the towards its deadline. The court re- experts. fused to EEOC’s acknowledge the fact of long- delayed, but essential produc- document 4. Third Request Motion to Amend: Moreover, tion. assumed, the court based to Extend Deadline for Dr. Madden’s subjective speculation that agen- Report: Statistical cy was 9/24/2009 exaggerating the time needed for experts to do their work. On September the Commission filed its final disclosure, motion to amend volume of the the case finally received, management was far more order. requested extensive than the It an ex- anticipated: 178,000 EEOC had namely, filing tension for Dr. Madden’s statistical ..., support I by litigation that it vendor stated The EEOC analysis report. report must code the data into formats that a Pager’s Dr. Devah produce would program deadlines will computer established statistical previously under the sup- allowed to recognize that it be ... I must review the data with the caveat the information report once ... plement entered the vendor for education complete. records, database criminal prior experience, work desired, process etc. This of as- shift disparate Pager’s report Dr. detailed common, signing computer readable whites blacks and rates between conviction for each of value for each characteristic and in the communi- society generally 45,000 eight at least applicants requires has offices. ties where weeks. Pager’s Dr. produce was able to necessarily arrays re- Once these vast of data are coded it did not report because employ- ... I analysis apply into a standard format wide- quire an records. to calcu- ly accepted ment statistical formulas differentials in late whether there are again motion the EEOC In its third of hire for those with the likelihood give agency the court the requested that of application criminal records ... The Dr. Mad- February produce 2010 to until re- programs these to the coded data report. den’s three weeks. quires least ship all outlined its efforts The EEOC are Finally, when the statistical results processor and its discs to its document available, prepare report I a written efforts to enter processor’s document summarizing approaches taken and mate- application from the raw information findings. writing report The of the that rials into a uniform e-database time, my although unassisted requires code, analyze, and experts EEOC’s could checking report the extensive report. per- is against computer programs from both The EEOC attached affidavits writing ... The formed assistants Dr. Madden. processor document its weeks, report requires about two prog- outlined its processor The document after the com- one of which must occur far, profes- that in its thus and stated ress completed. been puter work has could not be opinion, the e-database sional me that The EEOC has advised coding to Dr. Madden’s team provided be de- completed electronic database will 4, 2009, analysis November before 4, 2009. There- livered on November filing of the (thirty days from the business fore, can my expert report I that believe motion). thereafter, byor completed 12 weeks be in that stated her affidavit Dr. Madden February (given Econsult’s her team receiving after the e-database during policy closing longstanding code, three months to would need at least week). Christmas from the analyze, report data time- September On 45,000 producer the document applicants ly Pager’s report. Dr. produced identified. Magistrate in of the motion On October support Her affidavit third mo- Judge that the EEOC’s explained why in detail she needed declared affidavit, tion, report: Dr. Madden’s provide including much time to plaintiff expects “how failed to make clear computerized the electronic or Once prove liabili- me, report to use Dr. Madden’s provided to a data- data have been concern ty.” expressed The court currently being prepared base which is felony in routinely coding ering pre-applica- in an convictions is not “Dr. Madden analy- of her purposes application processes race for tion and used at Peo- applicant’s Further, court stated: sis.” plemark’s offices. being used to simply is report If the explain attempted The EEOC also statistically people with felo- prove employment the substantiative discrimina- likely less to be hired ny convictions are tion law to the court. It told the court convictions, felony than without people required that it was not to assert the same dispute not this may even defendants alleged pleadings “categorical” policy ... issue in this case ... point stated prima case. facie categorically the defendant de-

whether to the it on its prevail court that could with a crimi- any nies hire to individual impact long claim disparate as ... If was true that Mad- [it nal record policy showed had a that dis- people den seeks to show parately impacted African Americans. frequently], a convictions are hired less Second, the stated that Dr. Mad- for Dr. continuance based on the need “applicant den needed to flow review the neces- report Madden’s would not be data and current work force data” in order sary. “to determine whether the manner denying outright the EEOC’s Instead facility which convictions are used at each request previously, as it had done disparate impact has a on African Ameri- supplemental report pro- court asked for a can applicants positions.” for those viding explanation why further Dr. absolutely report Madden’s essential provided extremely Dr. Madden thor- liability why to and she needed all proving ough explanation expert analysis of the the fields of information to write her re- process. excerpts The most crucial from port. her second affidavit stated: analyses applica- [T]wo different of the Supplemental Sup- Brief in 5. EEOC’s personnel provided tion and information Extending port the Deadline of to by Peoplemark required: are Report Dr. Madden’s Produce analysis a. An applicants of whether 23, 2009, the On October EEOC filed its report who conviction records on their memorandum, supplemental which includ- applications likely were less to be hired second, ed a more detailed affidavit from than those who did not report criminal Dr. stated that Dr. Madden. EEOC convictions. analysis Madden’s statistical was absolute- An analysis b. of whether African ly necessary prove the causal element of applicants likely American were more prima case. facie report criminal convictions than were First, that, explained al- applicants from other ethnic racial though pleadings asserted that groups. categorical mark maintained no-felon analysis] For first ... I [the must take policy Peoplemark, discovery existed at applicants the information that hand had, fact, in had showed applications, wrote on their which in- placed a of applicants small number any cludes the dates of convictions and a prior felony Accordingly, convictions. description charges, of the criminal and that it plan EEOC told the court did not code the allege policy information into a machine categorical as the first ele- Instead, format. prima coding ment of it case. readable While the of facie planned allege policy years straightforward, of consid- dates into analysis on mathematical im- My relies complicated is more charges of coding proportion to estimate the of putations database use electronic [the ... I will American, processor], African the document who are by applicants provided these group and I must first sort forms Peoplemark’s application but because convic- in to characterize order entries related data do not ask individuals and (felony misde- severity vs. by their tions identify their seeking employment violent, meanor) (i.e., drugs, type and pro- mark has ethnicity. People race or etc.). financial, theft, identity persons the racial of vided any differences hired, to be sure that re- leaving identity In order the racial of convictions Therefore, those with hiring in between unknown. jected applicants convictions are associ- those with no and African American I must estimate the ... it is neces- the convictions ated with in or- representation among applicants likelihood of hire sary analyze the compare composition der to the racial with otherwise applicants ... among applicants composition to the racial job histories and equivalent education hires. group [education ... I must sort rep- African American By weighing ... history collected job information loca- occupation in each resentation ways] in order to in various according to the number of pool tion a com- way them in a characterize summing in over applicants pool analyze. puter program can location, I hiring pools any all the education, I must determine For repre- can estimate African American their edu- Applicants entered level. I then use stan- pool. sentation variety application cation on methodology to evaluate dard statistical wrote the name of the

ways. Some there is a difference between whether they area where “yes” school and compositions applicant racial grade to enter level or de- were asked hired. and of those who are pool a de- completed. Others entered gree Ameri- African analysis whether ... en- gree and no school Others likely more to re- applicants can were name ... If convicts were tered a school ap- than high criminal convictions were likely completed port to have school less college analysis that ethnic and racial plicants or attended then from other pro- the effects of edu- the compare failed to consider that I groups requires hir- inaccurately among cation would attribute all African Americans portion of to convictions. ing differential ... applicants other experience, For I must determine work requires writing report ... The of the Applicants type and the amount. weeks, one of which must about two in- employers, three identify their last has computer after the work been occur cluding employment, the dates of completed. name, company and the duties. Some sup- requested the court Although dates, complete enter other seasons necessity on the of addi- briefing plemental impor- ... It is years, only years others Dr. Madden’s producing time for tional descriptions into categorize tant to these disregarded Dr. Mad- essentially it report, occupations to charac- a consistent set steps she recitation den’s detailed candi- types experience terize time she would to take and the needed judgment requires dates. This work tasks. See sec- accomplish those need to who is trained of a labor economist F tion jobs. categorize infra. 6, 2009, timely People- Valora Both of the individuals stated that

On November e-database to Dr. Madden’s produced the mark placed though they them even had team. felony records and informed prior of their convictions. December-January Deposi-

E. 2009: 16, 2009, Finally, on December Managers, Em- tions of Former deposed Osten. The EEOC asked ployees, and Chief Counsel why, during Osten in- administrative 15, 2009, From January December vestigation, repeatedly he stated that Peo- deposed managers from plemark policy. blanket no-felon locations, Peoplemark’s all of former em- replied Osten he did not if remember Counsel, ployees, Chief he had asked someone else within the com- Osten. pany making before the statements. His Peoplemark’s managers revealed that “pretty gener- recollection was that it was felony-screening much of the is driven ally that Peoplemark well-known” did not preferences, result, client and as a some hire convicted felons and clients did offices hire felons while others do not. not want to hire convicted felons for vari- Peoplemark’s Tennessee manager stated ous reasons. that she received verbal instructions not to ex-felons, place she follows those instruc- F. Court’s Partial Grant of Motion office, in Memphis tions and she has no to Extend Deadline to Produce that accept clients ex-felons. Report Dr. Madden’s Peoplemark’s Michigan manager stated Following depositions, on December that his applicants office denies ex-felon 2009, Magistrate Judge agreed give willing because it does not have clients until December accept applicants. these produce Dr. analysis. Madden’s statistical Peoplemark’s Kentucky manager stated This gave extension EEOC’s occasionally his office places appli- code, little over a month and a half to cants without conducting background first analyze, and a report detailing write background checks. If a later check re- 45,000 information applica- contained in felony, Peoplemark veals a informs the Although tions. Dr. Madden had re- employer and allows to decide whether peatedly informed the court she employ continue to the individual. needed three months from the time the However, if an employee placed after document processor produced a uniform felony finds violent convic- information complete database to her sta- convictions, tion or multiple then analysis, tistical gave the court her ap- mark will employee terminate the itself. proximately half that amount of time. Peoplemark’s manager Florida dis- closed the policy placing most liberal for In determining what it believed to be an ex-felons. According manager, to the extension, appropriate the court relied on accepts Florida office applications from the EEOC’s statement in its second mo- engages ex-felons and in a client driven tion to extend that it would be able to screening process on a by ease case basis process Peoplemark’s application docu- in deciding whether to place the individu- ments and produce expert report an in al. three months time. The court relied on 17, 2009,

On December this though the EEOC de- timeframe even posed Peoplemark employees. two former explicitly stated in that motion that its

611 The court went on to state alternative was based on time estimate delay producing in ex- hypothesis for 50,000 papers.12 producing pert reports: The court reasoned: hand, appear it would docu- [the On one the defendant’s documents Since all of should have had the processor] ment by August to the EEOC provided were overwhelming bulk of the data its [sic] (with minimal 24, exception 2009 August than the end of hands no later September), in found later pages 2009, simply was not and that the EEOC reasonably expect plaintiff one could transferring in it to being diligent [the by No- expert report its produced have processor]. document 2009, 24, opinion on the vember based probable explanation There is more expert. own in-house its delay, July however ... [0]n the latest 31, 2009, by experts the two identified to extend In earlier renewed motion its by yet had “not been retained” plaintiff 23, 2009, July plaintiff filed deadlines Dr. would the EEOC ... Madden Since experts’ re- provide it could stated begun developing pro- her not even have 12, ... by February ports processor] to use tocol for document [the considerably course, five months contract, under and she until she was ... estimated EEOC] more than [the until September under contract was not complete months to and even with five 2009, could not processor] document [the by expert report, it would be done begun keypunching operation have December 31.13 September. Had until sometime readily apparent that a substantial [It is] and hired its ex- diligent been plaintiff delay in case has been portion of the this litigate as it decided to perts as soon bring- diligence lack of plaintiffs (well year ago) or even case over ing up speed. the initial vendor (a year the lawsuit the initial months of speculated court the first several Finally, ago), during or even 2009, pro- e- document Peoplemark’s [the to send months of EEOC’s failure key coding could have started processor substan- cessor] records to its document as soon for the database the documents tially delayed processing.14 any view, August prior to would have saved Magistrate Judge’s failure cessor my 12. Peoplemark's expert relied on the com- time. acknowledge than increase the more 250% pany’s application materials. The agency electronic that the in the volume of material report shows the through nature of his to work constituted limited Dr. Madden had actually contained in extremely data plain scant error. example, For the re- e-records. convictions, sug- analyze felony port not does how the court concluded It is unclear 13. 2009, felony 31, not contain gesting the e-records did months from was five December Furthermore, the database con- January August A date of information. 2009. either August placement information for from tained zero would have been five months finally office. February Kentucky date or the Tennessee office Livonia, slightly Rapids, and Orlando requested the EEOC was extended For the Grand 13,079 offices, Christmas holi- contained in order to accomodate the the database Thus, although, day. applications.” “employee stated, "represents the e-database the court elec- personnel information the bulk of the EEOC received CDs of It is true that the 14. Peoplemark tronically receiving stored CD’s Peoplemark's prior CDs e-records had,” person- represent bulk of it did not Peoplemark's paper rec- copies of of scanned by general- However, held unlikely nel information highly it is ords. ly- pro- sending to the document the e-records by discovery permitted (perhaps presenting even same result the court accompli. with a fait 18,500 beginning with the documents plaintiff Had made a serious attempt plaintiff during obtained its administra- during past year to adhere to the investigation). tive order, management case or had it made ready in plaintiff And had been the first request a more reasonable for an exten- process half 2009 to documents it of deadlines, expert position sion might be more tenable ... But it has receiving, it might knew it would be simply been in denial of its obli- diligent pursuing more have been gations, apparently believing that discovery of those documents as soon as where the EEOC is concerned the management the case order was in apply. usual rules do not place. added). (emphasis light In of all plaintiffs counsel court, According to the it was reasonable case, have been told the court in this to give Dr. Madden’s team a month (after one would have assumed that counsel a half receiving and the uniform application information from the would have hand-carried the document neces- processor 6), on November instead of the sary paperwork around the EEOC bu- three months she stated was needed.15 reaucracy get Dr. Madden hired disagreed. immediately upon being On December her identi- 30, 2009, the EEOC filed notice that it was happen only fied. That this did not appealing the Magistrate Judge’s order. reinforces conclusion that Judge The District affirmed the order on continuing EEOC is what is tanta- 29, January 2010. big strategy. a mount to “too to fail” affirmance, Following that pre- which major The EEOC has undertaken case cluded the being EEOC from able to time- going which investigate it and ly produce report, Dr. Madden’s she and litigate pace regardless at its own her stopped working 2, team on February might whatever the court discretion time, 2010. At that the team was on pace attempt Having to exercise. not ob- to have their expert report completed and pretrial pro- tained the schedule it filed with the February court on 2010. posed conference, the Rule 16 After the district court affirmed the plaintiff has, by continually dragging Magistrate Judge’s final case management discovery, through its feet and more order, the EEOC realized it would be particularly by failing to obtain cru- summary unable to survive judgement be- any cial assistance in kind of prove cause could not the casual element timely manner, sought to achieve the prima of its case.16 Without Dr. facie 15. There is required no indication in the record that to state facts sufficient to establish a prima pleading. that Dr. Madden dec- contended case in its Swierkiewicz facie N.A., laration of the v. Sorema time she needed for her work 534 U.S. 122 S.Ct. (2002). exaggerated supra L.Ed.2d 1 See or otherwise misstated. discus- However, words, sion of merits. other to survive a sponte, the court motion sua with- view, summary judgement the EEOC needed to subjective out a basis other than its prove prima be able to case of discrim- rejected unequivocal, Dr. Madden's uncon- facie case, disparate impact plain- ination. In a tested, representations. detailed 1) specific employment tiff must show: outset, pleading, At the in its initial 2) practice; proof practice statistical that the only required EEOC was to raise an inference adversely protected group; affects a Corp., v. discrimination. Serrano Cintas disparate impact causal link between the (6th Cir.2012). 699 F.3d plaintiff A challenged employment practice. John- employment Servs., in an Dep’t discrimination case is not son v. U.S. Health & Human February Peoplemark’s expert per- 2010. analysis per- statistical Madden’s 1) to Dr. responded American’s within formed two tasks: he of African centage placed, it was Pager’s sociology study analyzed that were he pool applicant considering felo- in impossible Peoplemark’s to show the limited data contained to hire reduced caused nies electronic database. Americans from of African

number analyze Dr. Cohen did not code or pool. applicant 45,000 applicant appli- data for the paper during cants the EEOC identified discov- Summary Peoplemark’s Motion for G. Instead, ery. analyzed only Dr. Cohen Expert Judgment, Re- Production Peoplemark’s in e- applicant limited data Negotiations port, and Settlement paper records and two months of data 25, 2010, February On from the Tennessee office. summary judgment. On moved for Cohen, According to Dr. the e-records People- day, approached the EEOC same names, customers, and applicant included agreement. The mark about a settlement Orlando, placements Rapids, for the Grand parties agree to proposed EEOC that both offices, Memphis and Livonia but for expenses. own The pay their fees offices, the database included Owensboro in proposal its oral writ- EEOC confirmed names. only applicant day. the next Discussions continued ing into March. Although he had a fraction of Peo- applicant information for the plemark’s 8, 2010, requested

On March EEOC data, period felony time and no relevant Peoplemark provide response by “found no evidence that African Dr. Cohen day. following close of business the at a rate than Americans are hired lower 11, 2010, Peoplemark On March coun- in in representation their the labor force pay that the request tered with occupational groups geo- the relevant $500,000 of fees. Peoplemark’s that, graphic areas.” He also concluded rejected proposal counter comparison percent “when a is made of the day proposed stipula- same and emailed placements to the of African American Peoplemark. tion and order of dismissal there is no evidence of pool, available labor parties jointly On March disparity.” prejudice.17 moved to dismiss the case with office, analyze Memphis To which that Peo- proposed provided dismissal e-database, Dr. was not included in the prevailing would be treated as the plemark applicant the race of requested Cohen purposes determining for the fees. party random months. placements made two Expert Report concerning felony had no information He (Provided Summary with applicants. convictions for the Based Motion) Judgment alone, concluded that this data Dr. Cohen met or substan- Peoplemark’s placements expert report Peoplemark produced tially of African conjunction percentage exceeded from Dr. Malcom Cohen market. summary in Americans in the relevant labor judgment its motion for settlement, (6th 1994); trying negotiate Cir. Wards Cove 30 F.3d 655-58, Atonio, Packing 490 U.S. gránt Co. v. appealing the court’s (1989). S.Ct. 104 L.Ed.2d 733 compel motion to items contained mark's privilege log. idle March 11- 17. The EEOC was not from time, During March 24. in addition this Peoplemark’s Similarly, the e-records did not contain H. Motion Attorney’s Kentucky on office. For for information Fees reason, an Dr. not unknown Cohen did Costs request placement the same race informa- fees, attorney’s moved for manager Kentucky tion from the in the fees, sanctions, expert witness and costs in Instead, provide any office. he did not $1,300,000. 31, 2011, excess of On March indication of whether met the Magistrate Judge awarded hiring requirement benchmark for the rel- $751,942.48. Judge mark The awarded at- Kentucky. evant labor market torney’s fees from October onward all expert fees incurred from the out- Dr.

Although Cohen had database infor- litigation. set of offices, remaining mation for three any there is zero indication he had award, In explaining his fee Magis- concerning felony information convictions Judge trate stated that an award of fees Furthermore, applicants. Dr. Cohen justified in was this case because the way stated that because of the that he EEOC’s claim was meritless from the be- jobs, coded some workers were counted ginning and the EEOC conducted itself times, multiple unique once each EEO unreasonably during pre-trial the course of assigned job. code that he litigation. Specifically, noted, judge inter alia: Dr. had database Cohen information for This is one of those cases where the Livonia, Michigan office from 2004 to complaint turned out to be without May when the office closed. Based beginning. foundation from the Once employee applications and 937 the EEOC became aware that its asser- placements, Dr. Cohen concluded that this tion that Peoplemark categorically re- office exceeded benchmarks for the any fused to person hire with a criminal by twenty relevant labor market between true, record was not or once the EEOC thirty percent. that, should have known it was unrea- Rapids, Michigan, For Grand Dr. Cohen sonable for the EEOC to continue to 5,782 analyzed employee applications and claim____ litigate on the basis of that 5,379 assignments. He concluded that report of Peoplemark’s expert Peoplemark’s hiring exceeded the relevant shows that 22% of the 286 so-called by benchmarks between nineteen and victims of purported policy defendant’s twenty-six percent in the relevant Michi- fact been despite having hired gan labor markets. felony Assuming records. this to be 6,563 Dr. analyzed applications Cohen true, it that the means EEOC’s ‘blan- 8,239 assignments Orlando, from the rejection ket of all felons’ claim upon Florida office. Based on this information which it premise chose to its disparate Peoplemark’s he concluded that hiring ex- impact grounded. lawsuit was not well ceed the by relevant benchmarks between question here is when the EEOC twenty-two twenty-nine percent. should have realized its claim of a blan- policy by ket Peoplemark had no foun- Dr. Cohen did not consider impact ... dation felony convictions on place- ment rate for African applicants. appears basing American It Moreover, the application early materials he did whole case on some statements review covered small fraction of the company made officer of the cou- company’s applicants. total pled with the fact that Sherri Smith [sic] hired, adequately manage prosecution and did little inde- been had not follow-up. beginning. The court is left this case from the pendent plaintiffs coun- impression the Notwithstanding that the EEOC knew the simply place content to sel were from the time of its inves- administrative experts hands of their matter in the expert that it would need tigation testi- it. run with let them case, mony disparate impact to make its con- indication the EEOC There is no expert Sep- ... it did not hire its until investigation specif- any of the ducted Thereafter, having 2009 ... al- tember people allegations of the 286 it be- ic continuances, ready received several the in this matter latedly named as victims sought EEOC a further continuance of deter- a reasonable cause nor issued year provide over of a to one-third the allegations prior mination as to those expert’s report. However, complaint. its the filing to added). (emphasis litigated on other present case was Judge Magis- The District affirmed the grounds. Had this case been dismissed Judge’s granting trate order fees in toto. it not properly on the basis that was stated, Judge The District inter alia: the investigated brought, before it was unequivocally [T]he EEOC based its attorney’s greater. fees would be far alleged categor- case on play [T]he also tries to down EEOC prohibition against “hiring the ical significance of its claim in this ... any person with a criminal record.” argues that ... the EEOC lawsuit conducted a reasonable Had EEOC (that very gravamen of its claim Peo- investigation years leading up in the irrele- policy) had a blanket is plemark lawsuit, it filing its or had reviewed Obviously, ... whether vant throughout provided evidence to it policy not mark had a blanket was discovery, quick- course of it would have it argument, to the EEOC’s relevant liability theory pled ly realized its crucial, and the EEOC never magistrate judge ... was untenable other- complaint amended its assert that the correctly ... concluded EEOC good investigation A would wise. fatal have aware of the flaw should been probably have shown than in its case no later October prior to could not make this case even Expedited, ... v. Van See EEOC CRST lawsuit, that certain- filing but Inc., 07-cv-95, 2010 WL 520564 No. ly evident when all of the evi- became 2010) (N.D.Iowa (holding Feb. EEOC by the other side was dence submitted proceed lacked foundation based if not available even the EEOC had ); ... reasonably investigate failure independent conducted its own investi- 04-40132, Corp., v. Nos. EEOC Cintas gation. (E.D.Mich. 06-12311, 2011 WL merits, [R]egardless of the it was unrea- timely (holding failure to Aug. to continue to sonable for the EEOC identify aggrieved parties and reason- costs) (and up defendant’s litigate drive ably investigate claims warrant- such produce it could not an once knew attorney against fee award ed prove and thus could not its case. expert ). ... basis, plaintiff should have fold- On this noted, judge aptly magistrate [A]s ed its tent no later than the end of 2009 merits, it was unrea- “regardless using from when it was foreclosed the EEOC to continue sonable for expert provided because she had not costs) (and litigate up drive defendant’s ... failed to timely report [T]he EEOC produce knew it could not The Court went on to state that trial once it prove thus could not courts must “resist the understandable case.” temptation engage post reasoning hoc that, by concluding because a plaintiff did filed motion to extend [T]he ultimately prevail, not his action must have management case [the deadlines] been unreasonable or without foundation.” day required before it was to name its litigation Id. at 700. course of experts. “[T]he rarely predictable. may Decisive facts not relief], court’s [the Unsatisfied with emerge discovery until or trial ... Even its motion to extend EEOC renewed when appear question- the law or the facts deadlines ... EEOC indicated it [T]he outset, able or party unfavorable identify or yet any expert, hire may entirely have an ground reasonable despite having litigated case for ten bringing suit.” Id. months, investigated case for several years, that knowing it would need This court has further dissected the day an one ... expert from “frivolous, unreasonable, Christiansburg prepared report, though never even groundless” or separate standard into two yet provided the court another deadline analyses. To determine whether an award extension. 1) proper, fees is this court looks to: added). (Emphasis substantive a plaintiffs merits of case and 2) plaintiffs litigation tactics or method II. Discussion: Serrano, prosecution. e.g. supra, See Christiansburg v. Garment Co. Com- (6th Cir.2012) 699 F.3d at 905 (determining mission, 434 98 U.S. S.Ct. that fees were not warranted because the (1978), the Supreme L.Ed.2d 648 Court legal issues raised were not “frivolous” or plaintiff stated that because acts as a “groundless” motions, losing because private attorney general vindicating public failing respond properly discovery interests, plaintiff prevailing ordinarily is requests, and withdrawal of claims did not attorney’s to be awarded fees in all but “egregious constitute and unreasonable special circumstances. The Court conduct”). [litigation] Christiansburg also that stated courts should not use the same case, standard to deter- In this the lower court and the mine prevailing 1) whether a majority defendant find that the EEOC: brought a attorney’s Rather, 2) entitled to fees. Id. case that pled was meritless as Court that a trial found court should not unreasonably prosecute continued to attorney’s award fees to a defendant un- case after it should have known its case less a the plaintiffs it finds that claim was was majori- meritless.18 In contrast to the “frivolous, unreasonable, or groundless, ty, or justification I find a of fees on either plaintiff litigate continued to clearly such, after basis erroneous. As I will it clearly became so.” Id. at 701. address both turn.

18. 4) The lower court found the expert report, EEOC's com- filed and lost motions to plaint hiring policy of a blanket no-felon management amend the case order. clearly meritless from the outset and meritless majority The discovery states that when re- According as of October 2005. to the low- vealed facts that were inconsistent with Peo- court, unreasonably er prosecuted plemark’s General Counsel’s statements about 1) the case it: because failed to conduct a policy, a blanket the EEOC should have 2) thorough presuit investigation, more failed “reassessed its claim.” list; 3) identify a class failed file merit, to have jority, for the EEOC’s case Attorney’s Are Not Warranted Fees A. Disparate prove Im- to be able to EEOC’s the EEOC needed Because the From employment practice Not Meritless pact “pled, specific Was Claim Any At Later Point protected or on a impact the Outset had an adverse group.” a Blanket Failure to Prove Policy No-Felon disagree I do not that was reasonable expect the EEOC to know with the lower majority disagrees The mark hired some felons October case was that the EEOC’s opinion court’s 2009—the date from which the lower court majori- from the outset.” “groundless However, fees. whether awarded however, with the lower court’s ty agrees, knew that hired some or should the EEOC knew opinion simply felons is immaterial to the issue pled meritless as known its case was have agency’s whether the case had merit Peoplemark had discovery when revealed ma- fact.20 According to the placed some felons. December, support 19. view finds in the majority argument boils down: This disparate impact prop Peoplemark’s employees plaintiff depositions in a case must of 2009 Counsel, specific employ erly identify employer’s the and Chief near the end of the discov- prima practice, the first element of its ment ery period. manager One testified that some- case, 2) employment pleading; the in its "slip through the cracks.” times felons An- facie practice alleged pleading in must match the manager had been told other testified she alleged plain employment practice in the the verbally to not to hire felons. A third testified during prima case a motion for tiff’s personal practice facie at her office location of her trial; summary judgement or at if doing individual assessments of convictions. specific employer’s plaintiff misidentifies the December, 2009, importantly, Most in the pleading employment practice in its and fails company’s to main- Chief Counsel continued complaint prior to a motion for to amend the original when he made his state- tain that plaintiff summary judgment, or then the trial 2005-2007, ments from it was “well-known” failing necessarily her case for to must lose policy hiring Peoplemark had a of not correctly identify employment practice. felons. majority express Both the lower court and the conflicting regarding testimonies Given the proper require plaintiff to match that it is to companywide practices practices at the practice alleges plead employment it in a locations, it was not unreasonable individual ing employment practice alleges it to that, as a for the EEOC to continue to assert prong prima the first of its case sum facie company policy, Peoplemark matter of overall mary judgment proposition is or trial. This place employment did not felons for holding contrary Supreme to the Court’s policy may have ran- clients. That the been allege plaintiff that a need not Swierkiewicz domly ignored disregarded did not under- or support prima case facts sufficient to facie cut its existence. See, infra, pleading stage. discussion. at the Moreover, by aborting importantly, and most Dr. Mad- process that would have led to because the num- I use the word "some” majori- report, the lower court—and den’s People- not known. ber of felons hired is determining whether the ty no for basis felony —has report any data. mark’s did not infrequent and placement felons was so of this, process making in the The EEOC was policy, which of the random that the existence calculations, among when numerous other existed, acknowledged had the the witnesses give it an additional two the court declined alleged. discriminatory effect the EEOC Both report. report complete A show- weeks implicitly majority court and the the lower amount ing that hired a minimal report Madden’s assume that Dr. actually with the of felons would be consistent complete would not have mark's records Peoplemark, original EEOC's assertion that imple- felons, in fact had shown that hiring policy not Inc. had a blanket disparately im- felony policy that mented a implemented imperfectly at its which was placement African-Americans. country. pacted throughout the four offices reaching Evidentiary its conclusion that the S.Ct. 992. concern standards proof have known its case lacked the order and allocation at trial or EEOC should 2009, majority dispositive stage, (emphasis motion

merit as of October reasoning. majority original). The Id. relied on flawed match that the EEOC must reasoned plaintiffs complaint To measure pled employ- it to the employment practice against particular formulation of the ultimately practice ment it would choose prima pleading stage case at the facie case. allege prima in its inappropriate. discovery un- Before has facie evidence, earthed relevant facts and majority relies on Johnson v. U.S. may be difficult to define precise Servs., Human Dept. Health and Of required formulation of prima (6th Cir.1994), facie proposi- F.3d for the particular case in a case. Given that the prove required tion that the EEOC was prima operates case as a flexible pled, evidence that the facie through statistical standard, evidentiary it should not be specific employment practice had an ad- transposed rigid pleading into a stan- protected group. on a impact verse dard discrimination cases. repeatedly has asserted The EEOC (internal Id. at 122 S.Ct. 992. citations proceedings court throughout the lower omitted). that this its brief this court view The Court in Swierkiewicz continued: disparate impact of a claim is merits agree. simplified flawed. I This pleading notice standard relies on discovery liberal rules and match requirement summary judgment motions to define policy pleading in its employment disputed dispose facts and issues and to policy alleged prima in its employment of provisions unmeritorious claims. The 1) case is flawed for two reasons: it facie discovery for are so flexible and the retroactively imposes heightened provisions pretrial procedure pleading requirement Supreme summary effective, judgment so that at- Swierkiewicz, rejected supra, Court in tempted surprise practice in federal is attempts pre- to force the EEOC to very easily, synthetic aborted issues de- maturely evidentiary at an meet its burden tected, gravamen and the dispute arbitrary point pleading, after but before brought frankly open into the for the discovery. of close inspection of the court. Swierkiewicz, In Supreme Court de- ‡ ‡ ‡ question complaint cided “the a in whether pleading If a specify allega- fails to an employment lawsuit discrimination in provides tions a manner that suffi- must contain specific establishing facts a notice, cient a defendant can move for a prima case of discrimination.” facie more definite statement under Rule Swierkiewicz, 508, 122 534 U.S. at S.Ct. 12(e) responding before ... The Federal (2002). 992 that “an The Court held em- reject approach Rules that pleading ployment complaint discrimination need a game is of skill in which one misstep not include such facts and instead must by counsel may be decisive to the out- contain plain “short and statement come and accept principle that the of showing pleader the claim that the is purpose pleading of is to facilitate a entitled to relief.” Fed. Rule Civ. Proc. proper decision on the merits. 8(a)(2).” explain Id. The Court went on to 512, 514, 122 Id. at 992. S.Ct. plaintiffs that a proof prima facie standard, evidentiary case is “an Although Supreme not Court revisited pleading 510, requirement.” Id. at 122 in pleading the issue of notice Bell Atlantic

619 are 544, point, plaintiffs Title VII free 127 S.Ct. 550 Twombly, U.S. Corp. v. (2007) they their theories of the case as 1955, develop 929 L.Ed.2d 167 Ashcroft discovery, process including, 129 S.Ct. 556 U.S. receive and Iqbal, v. (2009), Twombly the Court employer’s L.Ed.2d 868 informa- importantly, most plead- clearly that its discussion succinctly stated v. tion. As stated E.E.O.C. run counter Swierkiew- “does not ings Scrub, Inc., 3458530,*2: 2009 WL 547, 127 S.Ct. 550 U.S. icz.” Twombly repudiate not Iqbal and did Serrano, recently court supra, notice-pleading, emphasizing, this general good remains Swierkiewicz, confirmed Swierkiewicz that the manner of citing court, affirmatively stated that law. The require- proof pleading is distinct from plain- Title stage, VII pleadings at the Furthermore, complaint need ments. Id. at 894-95. slight. is tiffs burden evidence, allege all facts nor not include “ carry the must ‘[A]ny plaintiff Title VII ... Liti- logically raised the claim ade- offering evidence initial burden discovery gants are entitled to before that an em- create an inference quate to treating a com- being put proof; to their on a discrimi- decision was based ployment as a statement of plaint’s allegations ... the Act illegal under natory criterion ‘windy complaints’ and proof leads to flexibility in how she has plaintiff [A] function. defeats Rule 8’s burden, and variance initial meets plaintiff Title to amend Requiring a VII expect- the case is on the facts of based “reassess,” or, majority’s phrasing in the ” (citing International F.3d at 894 ed.’ 699 before discov- complaint filing after but its v. United Teamsters Brotherhood rejected on this ery should be complete States, 97 S.Ct. 431 U.S. hold otherwise creates basis alone. To (1977)). L.Ed.2d Court’s hold- Supreme run around the end permits courts ing in Swierkiewicz—it Retroactive- Requiring Amendment a. plaintiff Title indirectly force a VII Pleading Heightened ly Imposes a establishing prima plead evidence on the Standard facie complaint. case dis- arguing that the EEOC’s Instead of from claim meritless parate impact Burden of Re- Bear the b. Defendants majority People- beginning, the the Because questing Clarification amending its fault the EEOC for not mark Non-Arbitrary to Point There is no a different em- complaint to state original Require Amendment Peo- discovering after ployment policy during reject felons the to the placed some another reason plemark There is period. problematic Namely, any point This is reasoning. relevant time majority’s retroactively impose to attempts discovery it force during because to picks that a court pleading requirement heightened the proof will be plaintiff to its a Title VII rejected in Swierkiew- Supreme the Court why the Su- arbitrary. This is completely icz. in Swierkiewicz preme stated Court for more use motions defendants should that, of a exception the

It is clear summary judgment or definite statement statement, Title definite motion for a more issues,” the “synthetic narrow to weed out to required are not better plaintiffs VII gravamen of the bring the dispute, and dispositive until the their claim elucidate inspec- open for “frankly claim into they point trial. At that stage motion or at 512, 122 of the court.” 534 U.S. tion coming evidentiary burden have the until S.Ct. 992. Up case. prima forward with facie portion the notice a substantial of the time the court plaintiff

After a satisfies discovery. had allotted to requirement it is the defendant’s pleading clarify job or what is at issue to narrow clari- Because failed to seek procedural the various devices through case, agency’s theory fication of the of the to it. It makes little sense to available the EEOC was left the dark. Before to alert the court or require plaintiff ruling agency’s court’s on the final party theory each time its the other management motion to amend the case fact, changes. In it is rather well case permit to order additional two weeks that the Federal Rules of Civil production established of Dr. report, for Madden’s require plaintiff agency Procedure do not had no notice that either Prac- mark or the court took abili- plead legal theories. See issue with its Federal ty prove prima § the first element of its Procedure, Wright, al„ et tice (3d ed.2012). case. It is also unclear how a facie judge newly court what uncovered would Although required was not EEOC require plaintiff facts amend his or clarify amend or otherwise its it allegation complaint. her agency did so. When the realized that the may rushing expert court have been dis- employer alleged If an believes that an covery because it did not see how the prove discriminatee cannot an element of prove prima EEOC could ease case, facie then the his or her burden is on it to original policy allega- based blanket a motion to dismiss or move bring tion, agency longer it no stated summary judgment when this fact be- that Peoplemark maintained had never apparent. comes hired a felon. The court lower and the The lower court shifted the burden of majority claim that the EEOC’s clarifica- clarification from to the late, reality tion was too little too but in it so, moreover, EEOC. It did without allow- was than required more the EEOC was ing agency sufficient opportunity do. Its theory statement of its evolved determine, expert analy- on the basis of an the case completed came before it had data, comprehensive precisely sis of it how process ultimately the court pre- —which theory. should frame its vented it from completing analyzing —of improperly shifting addition to the facts and Dr. expert report. Madden’s clarification, burden of ig- lower court hand, The court was forcing and the affirmatively nored failure to put forward the proof best that it agency’s seek clarification of the factual regarding could the first element of its theories. seeking basis and Instead of prima case. The shed as facie clarification, Peoplemark employed, and much light possible theory on the endorsed, discovery the lower court dis- intended to present light at trial in of what putes needlessly fruitlessly 23, that and up ate it knew as of October 2009.21 point, yet disparate 21. At the EEOC impact, complete this had not had can form a opportunity depose managers prima to or the case after it has discovered all of facie Chief Counsel. Had the employer EEOC conducted the the evidence in the hands of the and depositions, it opportunity would have been able to tell the analyze has had an to the infor- present multiple court that it intended to al- mation. Both courts and academics have ternative asymmetry theories trial —one blanket verbal noted the informational in these Citibank, N.A., policy, policy considering another of felonies cases. See Swanson v. 614 (2010) (Posner, J., application as a process, factor in the Dissenting) F.3d Malveaux, perhaps policy using (citing even a third Loading of a blanket Suzette M. Front rejection jobs. plain- Heavy Lifting: of felons for certain The How Pre-Dismissal Dis- case, especially covery tiff in a Title VII in a case of Can Address the Detrimental Effect of Peoplemark of this inform the court or court informed the district Nonetheless, certain ad- the EEOC informed had “denied fact. that re- practice pertaining appeared compa- to that it that the missions the court re- interrogatory respond to to fused felons. these ny placing was some Given until at each location practices garding facts, court I believe the lower committed further The EEOC August 2009.” finding error in that the EEOC did plain reviewing partially after that stated good continuing faith basis for not have Peoplemark provided accessible e-records least, very finding At such the case. 2009, it July, discovered: was an abuse of discretion. facility ap- Rapids Peoplemark’s Grand majori- practical consequence hired a few individuals peared to have court con- ty’s decision is to endorse lower records; Memphis that its with criminal ability unreasonably impairs that duct hire individuals with location did not plaintiffs, in- employment discrimination records; that, respect criminal EEOC, present cluding the discover and facilities, Kentucky the Florida and a liti- crucial facts. Courts cannot restrict criminal records some individuals with ability to obtain evidence and con- gant’s hired. appear to have been litigant case and then fault the struct its discoveries, the EEOC light In of these proof allegations. of its failing for to have maintained that longer that it no stated Moreover, compound courts cannot In- categorical policy. had a proof by using the lack of definitive abuse it intend- alleging policy, blanket stead awarding fees. as basis theory proceed on the ed By allowing the additional two not felonies ór considering policy mark’s report, Dr. Madden’s the district weeks for positions for some excluding felons my precluded arbitrarily, view— court— African Americans. impact on disparate whether opportunity the EEOC’s show if it could show explained that The EEOC not have a viable claim. The it did or did considering felony con- any policy then reasoned and found court backward disparate impact then Peo- victions had merit and agency’s case was without proving have the burden of plemark would fees, part, on that basis. The awarded necessity. a business reasoning pre- looking court’s backward record, support I no for the On this find analysis cisely type of flawed merits majority’s conclusion court and the lower rejected in Smerkiew- Supreme Court proper that fees are because icz, supra. meritless have known its case was should arbitrarily deter- Permitting courts to agency had a as of October 2009. The cases in the manner mine the merit of original pleading good faith basis for its drastically undercuts the occurred here It was not alleging policy.22 a blanket plaintiffs unsuccessful protection afforded any prima element of its required plead and doc- Christiansburg decision by the theory Although agency’s case. facie evolved, trine. required not of the case view, Cases, my policy. no-felon Rights Lewis & Clark blanket Iqbal on Civil sufficed, (2010)). without that official statement from L.Rev. 65 more, good agency had a faith to show litigating. to continue basis nearly last mo- outset until the 22. From the (and compa- the lawyer Vice President of lead discovery by the lower allowed ments accuracy acknowledging the factual court, ny) was continued Peoplemark's Chief Counsel principal contention. of the EEOC’s Peoplemark a "well-known” to state had finding that the EEOC’s case lacked of the investigation.” Commission’s merit, solely Industries, court focused Inc., the lower v. Keco 748 F.2d erroneously Cir.1984). on the fact that (6th “The nature and ex- placed had some African Americans. The investigation tent of an EEOC into a dis- ignored completely agen- lower court the crimination claim is a matter within the cy’s sociological expert deposition and the agency.” discretion of that Id. The pur- testimony Peoplemark’s managers and pose of investigation is to inves- counsel, supported chief which the EEOC’s tigate charge the individual and facilitate main- basic contention informal conciliation between the alleged felony policy disparately tained im- employer. discriminatee and the AId. such, pacted African Americans. As the judge district court must the facts and clearly lower court erred when it found the legal issues in a discrimination claim de agency’s case to be meritless. novo. Id. at 1102. majority ignores the fact that the B. Fees Are Not Warranted Because fees, lower court based its award of in the EEOC Did Not Use Unreasonable part, on the EEOC’s presuit “insufficient” Litigation Tactics investigation. I necessary believe it is majority The lower court and the also address the lower court’s consideration of found that the pros- EEOC’s unreasonable agency investigation because it is ecution of the case warranted an award of odds with this court’s decision in Keco. fees. The lower court cited the EEOC’s: 1) 2) presuit investigation, requests The issue in Keco was whether the lower 3) order, management amend the case fail- court had improperly presuit relied on the produce ure to expert report, investigation to determine sufficiency immediately failure to According dismiss. complaint. This court held that the court, to the lower the unreasonableness of lower court improperly inquired into agency’s justify, actions in part, presuit investigation in order to deter- fees that the lower court awarded. The mine sufficiency of the complaint. majority does not take issue with the lower Based on the reasoning same this court analysis court’s in regard. this I find the Keco, in used I find the lower court’s lower court abused basing its discretion in based, award of part, fees this case on fees, an part, award of agency’s investigation EEOC’s be abuse of prosecution of the I case. address each of discretion. the EEOC’s litigation “unreasonable” tac- Magistrate tics in Both the Judge turn. and the Dis- Judge trict repeatedly faulted the EEOC Investigation The EEOC’s Presuit failing thorough conduct a more presuit investigation. The lower court agency’s Although found that the Mag- presuit investigation was insufficient and istrate Judge explicitly did not base his fee filing led to of a complaint that it should ground recommendation on the have known was meritless. This focus on EEOC failed to adequate conduct an pre- putative insufficiency of presuit investigation, suit he did state: “[h]ad this investigation contrary to established le- case been dismissed on the basis that it gal applicable doctrine investiga- properly was not investigated before it was tions. brought, the attorney’s fees would be far greater.” Furthermore,

In determining Magis- whether a claim is both the frivo- lous or groundless, Judge’s “it is error trate for the recommendation of fees and district court inquire sufficiency into the the District Judge’s approving order fees conducting not on the part faulted the EEOC for issues of the EEOC do not rise and for not thorough investigation more egregiousness to the level of that of con- conciliating initially on of the 286 behalf duct, requires which the law for an award tentatively alleged and identified victims attorney’s fees. See section c. infra individually. a. The EEOC’s Class Notice reading On both orders in their entire- whole, Certification Issues in ty, light of the record as judges clear that both the lower court is I. Sufficient Notice of respecting held mistaken beliefs the Class Claim nature, scope, purpose of the EEOC’s The first issue is whether the EEOC’s presuit investigation and misunderstood inability identify early a class in power sufficiency their to determine the list of that investigation.23 litigation Neither order ex- was so unreasonable as to war- plicitly presuit stated that the in- EEOC’s rant an attorney’s award of fees. The vestigation independent was an basis for Eighth recently Circuit held that believe, however, awarding fees. I identify, investigate, EEOC must and at- misunderstanding the lower court’s tempt to conciliate each individual class agency’s investigation process materially during pre-suit member’s claims inves- clearly to its impo- contributed erroneous tigation. Expedited, EEOC v. CRST Van sition of fees. Inc., (8th Cir.2012) 679 F.3d (stating that the EEOC cannot use discov- 2. The Pre-Trial EEOC’s ery fishing expedition as a to uncover more Litigation Conduct violations). The next issue is whether the EEOC’s However, the Eighth holding Circuit’s is pre-trial litigation justifies conduct an Keco, at odds with this Court’s decision in assessing award of fees. In the unreason- supra, and the law in at least other six prosecution ableness of the EEOC’s of this courts. 1) agency’s: case the lower court cited the identify failure to during class list discov- Keco, In this Court stated that “com- 2) ery; requests three for deadline exten- plaint filed is EEOC limited sions; produce ultimate failure to investigation reasonably grow expected report. charge out of the initial of discrimination.” Keco, F.2d at 1101 supra, (stating majority fails discuss the lower analysis complaints alleging allegations “grow class court’s its fee award of the pre-trial litigation EEOC’s conduct. charges out of’ individual of discrimina- tion). determining sufficiency expansively This court has read the Su- evidentiary allegation basis for a class preme opinion Christiansburg. Court’s complaint, may only in a a court consider decisions, believe, Consideration of those I attempted, whether as the shows that the lower court abused its dis- here, agency did fees, conciliate behalf in awarding part, cretion on the (empha- basis of class of individuals. Id. at 1102 pre-trial litigation the EEOC’s added). Any negligence conduct. or untimeliness sis “The form and substance of supra, process cy, through investigation, As noted the EEOC’s is dif- aims many agencies. gather enough help ferent from federal It does information to marshal investigation pro- parties not use the administrative toward an informal settlement. conciliation, prepare agency goal principal cess to for an trial before an The EEOC's not judge. agen- preparation administrative law Instead the for suit. 624 presuit EEOC limited its is within the discretion class because the conciliations

those location). created agency as the to to investigation of the EEOC efforts one store employment enforce our administer and These make clear that the EEOC cases judicial beyond and is laws discrimination claim if sufficient notice of a class provides review.” Id. the on investigation puts employer no- least other circuit courts and At two considering bringing that it a class- tice is courts concur with this three district The EEOC not know or wide claim. need in Keco. If the EEOC’s holding court’s identity of individual claimants disclose the and communications investigation presuit during investigation. the presuit put employer the on employer with an case, although signif- In this the EEOC investigating is a notice that icantly requests dur- limited its document claim, employer has suffi class then the ing investigation, it clear to Peo- made alleging notice that the EEOC is a cient plemark investigating that it was the Rhone-Poulenc, claim. EEOC v. class See company’s felony placement policy no Cir.1989) (3d Inc., 16, 17 (stating 876 F.2d company-wide a scale. It is evident that required provide not to that the is EEOC scope understood the of attempts of to conciliate on documentation investigation because its Chief Coun- claimant potential behalf each sel, company’s in an effort to reduce the action); employment class Marshall v. during production document burden (5th Cir.1979) Oil, 1331, 1335 Sun F.2d 605 investigation, stipulated thorough (stating “unnecessarily in that Furthermore, company-wide policies. vestigations of individual eases would tend Peoplemark itself states that it discussed process to transform the conciliation into alleged settlement hundreds of vic- something contrary congressional in process tent” would become tims. because unduly prolonged” “too and and formalized such, As is clear there evidence from away “focus directed volun would be demonstrating record that tary compliance with the law to endless notice investigating the EEOC was Dinkins bickering”); and irreconcilable v. class claim. It was an abuse of discretion USA, Inc., Charoen Pokphand 133 inquire for the court to lower further into (M.D.Ala.2001) 1237, F.Supp.2d 1245-46 investigation fault the EEOC for “[wjhat (stating matters is failing individually concili- identify employer] EEOC notice [the served during investigation. ate each claim investigating possible

was discrimination against a of women” and that class ii. Rule 23 of the Federal Rules of EEOC each need not “conciliate individu govern Civil Procedure does not al’s Title separately”); VII claim EEOC v. EEOC Class Claims F.Supp.2d Indianapolis, Jillian’s 279 Assuming precluded the EEOC was not 974, (S.D.Ind.2003) (stating from a class-wide claim because alleging of a local proceed could on behalf presuit investigation, an insufficient but not a naming nationwide class without inability next issue whether the EEOC’s employer individual because the members identify the individual class members had sufficient that the EEOC notice was discovery after two and a half months of investigating class); v. local EEOC Dil Generally, unreasonable. Fed. Inc., 2784516, lard’s 2011 WL *6-8 (S.D.Cal.2011) prescribes R.Civ.P. 23 time for identifi- (stating that the EEOC is cation of class members when court required identify not potential class certify limiting members to a local should determine whether However, in class. General Tel. Co. the EEOC’s additional litigation unreasonable Inc., EEOC, 1) v. conduct: Northwest U.S. unsuccessful motions to ex- (1980), tend, 100 S.Ct. 64 L.Ed.2d 319 failure to submit an expert report, 3) Supreme held that the “the na- failure immediately Court to dismiss after failing ture enforcement action is produce expert report. EEOC’s to an that it properly such is not characterized In making its determination the lower subject a “class action” to the procedur- relied, part, court in on EEOC v. Cintas requirements al of Rule Although 23.” Corp., (E.D.Mich.2011), 2011 WL 3359622 Inc., Tel. Co. the Northwest General Of rev’d sub nom. Serrano v. Cintas Corp., brought an enforcement action al- (6th Cir.2012). 699 F.3d 884 In reversing leging “pattern practice” a or of discrimi- Cintas, Serrano, this court held in nation, reasoning applies the Court’s with filing losing over a discovery dozen equal force to an enforcement action alleg- motions, and other including motions to ing disparate impact. The Court stated: deadlines, extend failing respond to prop- VII, purpose Given clear of Title erly requests to identify alleged discrim- enforcement, jurisdiction EEOC’s over victims, ination and identifying and later available, and the remedies the EEOC withdrawing claims on behalf of alleged § need look no further than 706 for its discriminatees did not egregious constitute authority bring suit in its own name and unreasonable justifying conduct an others, purpose, for the among of secur- award of fees. Serrano 699 F.3d at 905. ing relief for a group aggrieved indi- Consistent with disregard of the oth- authority viduals. Its to bring such ac- er elements of the lower court’s unreason- in way dependent upon tions is no Rule discussion, prosecution able majority application and the Rule has no to a fails to discuss the lower court’s reliance § 706 suit. on Cintas. 324, 100 Id. at S.Ct. 1698. This court in Serrano addressed EEOC gives authority Section 706 conduct, which was almost identical to the prosecute and obtain remedial relief for a conduct in this case and found the conduct any provision act, violation of includ- was not so unreasonable justify as to an ing a alleging disparate violation impact. Serrano, award of fees. See 699 F.3d at 2000e-5(f)(l). § 42 U.S.C. Accordingly, I find that this holding court’s the Court’s statement that need not Serrano necessitates a finding that follow Rule apply equally 23 should to lower court abused its discretion when it enforcement proceedings alleging dispa- awarded fees based on the reasoning same impact. rate rejected that this court in that case. identify EEOC’s failure to and cer- Moreover, this court repeatedly has held tify a class before the lower court’s discov- that the inconvenience caused run-of- ery fairly deadline cannot be called an discovery disputes the-mill does not war- tactic, litigation unreasonable justi- which rant an award of fees. “An award of fies an award of attorney’s fees. attorney’s against losing plaintiff fees rights civil action is an extreme sanc- Extend, b. EEOC’s Motions to Failure tion,” truly egre- which “must be limited to Expert Report, Submit gious Lowery cases of misconduct.” v. Immediately Failure to Dismiss Edu., County Bd. 586 F.3d Jefferson Of (6th citing Cir.2009); Sensations, addition to the EEOC’s inabili- 439 ty identify during class of victims City Rapids, Inc. v. Grand 526 F.3d (6th Cir.2008) litigation, the lower court identified the (stating that “[t]he reason- disregarded court the EEOC’s attorney- affirms awards of

Sixth Circuit inability al meet re-litigates for its only plaintiff explanations when able fees matters, re and we legal disre- ready-settled deadlines. The court’s the court’s attorney fees when the award necessitating verse of the circumstances gard or unresolved when of law remain issues time to request for additional the EEOC’s pursu basis for arguable had an plaintiff constituted report Dr. Madden’s produce Meldrum, claim”); Revis v. her ing his or an abuse of discretion. Cir.2007) (6th (upholding 489 F.3d 1) the: Specifically, ignored the court unnecessary aggressive as to fees document increase in 250% defendants); Li harass filings intended to expert opin- Dr. Madden’s production; Nashville & Davidson Met. sle v. Gov’t of necessary complete time to ion on the (6th 782, Cir. Fed.Appx. 791 County, 73 3) constraints report; and administrative 2003) in only (stating appropriate fees agency faced. not have been “which not should cases should plaintiff Moreover, but which the the lower brought, to the extent bring”); v. Proc known not to study have Dr. own view that Madden’s court’s Tahfs (6th Cir.2003); tor, Du F.3d 596 316 much long too or included too data took Twp., 312 F.3d 755 buc v. Oak Green opinion, the lower court influenced its Cir.2002) (6th (stating appro that fees not The lower court’s abused discretion. was though plaintiff unsuccess priate even findings concerning Dr. Madden’s “failure court, in which claims state ful on similar finding code in race” and its that both to groundless him on notice of the likely put Dr. processor the document Madden claim, preclu the claim of his because ness “coding” function performed the same cut); v. not clear Riddle sion issue was clearly were erroneous.24 (6th 542, 553 Cir. 266 F.3d Egensperger, to facts which (stating that reference Delay in ii. Dismissal discov light during the extensive “came to taking In addition to issue with class hoc reason ery” exactly type post of is ulti- certification and the untimeliness and Christiansburg). ing prohibited by Dr. ex- produce mate failure to Madden’s view, court abused its my In the lower held that the pert report, the lower court finding in that the EEOC unrea- discretion unreasonably delayed filing its dis- agency during pre-trial sonably itself conducted court had entered missal order after the and failed litigation because it lost motions in favor of summary judgment order The lower court’s expert report. to file its agency’s efforts Peoplemark. It found with this reasoning directly is at odd’s (and to the issue of costs and fees settle cannot be court’s decision in Serrano appeal) improper. thus avoid an to be case squared with court’s extensive this view, award, my basing In fee in in all but the prohibiting law awards fee delay of part, resulting period on the brief egregious most cases. It is not un- was an abuse of discretion. I. Extend and Failure Motions to try finality parties common for to reach Report Expert Submit has by compromise even after one them or at decisively prevailed either on motion agency failing faulting the that, trying trial. There is no indication timely expert report, Dr. Madden’s submit Vining, in Em- repeated- The Role Probative Statistics Supreme 24. The Court has affirmed Cases, ployment 46 Law and Discrimination ly type analysis Dr. Madden intended to Problems, (1983). Contemporary employ. Anthony & Aidan See Boardman (2d litigation, Cir.1976); sity, further Ba sanctions and F.2d avoid seeking Co., EEOC was to harass dillo v. Central Steel & Wire 717 F.2d most, attempt At mark. its unsuccessful Cir.1983). (7th 1160, 1163 negligent, negligence settle Moreover, procedural record this Salkil, supra, for a fee award. not a basis simply support finding case does not 458 at 532. recklessly disregarded that the or suggestion the EEOC’s initial As with intentionally thwarted the court’s dead- parties discovery pri- that the conduct fact contrary, provid- lines. To the requests for expert discovery or to and its ed requests well-documented to the court produce time to Dr. Madden’s additional sought each time it amendments to the report, I believe the settle- EEOC’s case management order. The EEOC attempt shows the intent to agency’s ment clearly why it explained was unable to in the efficient litigate organized most meet the court’s deadlines. It cited dis- possible. I that an manner also think covery federal disputes, regulations, and deference, criticism, amount rather than substantial and unforeseeable increase to the when it such is owed submits agency document also production. It trust requests. agency is the we provided court with multiple affidavits of enforce discrimination laws this experts, agen- from individuals within the I country. do not think it unreasonable cy, in an and vendors effort to document in agency’s experience assume diligence. Despite its these showings, the litigation employment discrimination agen- lower court chose to believe that the in places position suggest them the best in cy diligence could have acted with more methods, discovery efficient reasonable timetables, claimants, possible options. or settlement identifying hiring a class and, experts, in approving ultimately, c. The EEOC’s the Case Prosecution of producing expert report. Dr. Madden’s Intentional; Not Reckless was or light agency’s explanations and the to- Negligence Mere is Insufficient record, in tality of the evidence in considering Even the EEOC’s actions court’s amount to no more than findings agency I aggregate, do not believe the speculation. disbelief and can egregious conduct be deemed so unreasonable as to warrant an award of III. Conclusion (re- Salkil, See 532 supra, fees. 458 at Supreme intentionally Court set the versing under same standard of review Christiansburg. in It high recognized bar § inadver- (stating “simple 28 U.S.C. do not public defendant’s serve the negligence” tence and re- or insufficient defending employment interest in discrimi- quiring judges, applying conduct that “trial Thus, in only goal nation suits. award- experience wisdom [the] collective of their defendants, in ing extremely fees to rare agree on the bench could falls short of the instances, prevent or frivolous suits the bar obligations owed a member of I ligation reckless and abusive tactics. court”). None of ac- agency’s lower interpreta- believe that court’s already involved set- re-litigation tions clearly tion merits of this of the case is matters, com- legal tled which is the most misinterpretation rests on a erroneous and in justifying mon circumstance fee awards in prima of the role of the case in prevailing favor of civil defendants facie employment law. If I am Inc., discrimination Sensations, rights supra, See cases. (6th Dubuc, correct, Cir.2008); the EEOC’s case was not then supra, 526 F.3d 736; any point during litigation Carrion v. Univer- meritless at F.3d Yeshiva its discretion abused and the court basis. fees, part, on the

awarding lower court that the remaining issues agency’s prosecution

found with the view, than

case, to no more my amount which discovery disputes,

run-of-the-mill matter of law insufficient as a simply

are For the an award of fees.25 support reasons, I dissent. respectfully

foregoing DESAI, Petitioner-

Jasubhai K.

Appellee,

v.

Raymond BOOKER, Respondent-

Appellant.

No. 12-2050. Appeals,

United States Court Circuit.

Sixth 2, 2013.

Argued: Oct. and Filed: Oct. 2013.

Decided Rehearing En Banc

Rehearing and Nov. 2013.

Denied Accordingly, agree majority plain I also find the lower court I with the that a read- awarding expert ing its discretion in fees confirms that fees are abused the statute within, attorneys fees. in this case. included or a subset of

Case Details

Case Name: Equal Employment Opportunity Commission v. Peoplemark, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 7, 2013

Citation: 732 F.3d 584

Docket Number: 11-2582

Court Abbreviation: 6th Cir.