MEMORANDUM OPINION AND ORDER
This case arises out of allegations of severe sexual harassment over a period of twelve years that resulted in a hostile work environment at an Albuquerque car dealership owned by Defendant Pitre, Inc. (“Pitre”). {See Complaint and Jury Trial Demand (“Compl.”), Doc. 1). The Equal Employment Opportunity Commission (“EEOC”) filed suit against Pitre on behalf of the Charging Parties, a class of similarly aggrieved male employees, and the public interest seeking injunctive, compensatory, and punitive relief under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. The Charg
The pleadings evidence a strong disagreement amongst the parties as to the fundamental legal principles underpinning this lawsuit. In an effort to resolve these disagreements expediently, the Court will consolidate its conclusions regarding the arguments raised in the motions into one order. First, the Court will discuss the legal standards and statutory framework underlying the parties’ disputes. Next, the Court will address the EEOC’s authority to proceed in this action and the propriety of its complaint. Finally, the Court will resolve the method by which the trial of this matter will proceed. Ultimately, the Court DENIES Pitre’s request that the EEOC’s § 707 claim be dismissed or bifurcated and GRANTS the EEOC’s motion to bifurcate.
I. Background
In 1998, Pitre hired James Gallegos as a lot attendant for its Albuquerque dealership. (Compl. at ¶¶ 20, 31). Gallegos remained in that position until Pitre terminated his employment on August 6, 2010. (Id. at ¶¶ 20, 77). Throughout the course of his employment, Gallegos subjected a group of male employees to extreme and frequent sexual harassment, including but not limited to exposing his genitals to male employees, soliciting male employees to engage in sexual acts, attempting to remove the clothing of other male employees, touching or attempting to touch the genitals of male employees, biting male employees’ penises, and forcing new male employees to ride in a locked car with him and others while exposing his genitals and groping the new employee. (See id. at ¶¶ 31-42). Gallegos’ conduct was committed openly in the workplace, was encouraged by Pitre’s general manager, and was known or should have been known by other managers, the human resources director, and the owner. (See id. at ¶¶ 43-59);
The EEOC further contends that Pitre took retaliatory actions against male employees who reported or complained about Gallegos’ conduct and the work environment, including negatively impacting commission earnings, failing to reimburse for travel expenses, making retaliatory comments, and terminating at least one man from his employment. (Id. at ¶¶ 65-71). The retaliation continued even after Gallegos was terminated from his employment in August of 2010. (Id. at ¶¶ 79-82). The working environment was so intolerable that it forced many of Pitre’s male employees to resign. (Id. at ¶ 84).
On August 11, 2010, Richard Yob, a male employee of Pitre Albuquerque from February of 2010 through October 20, 2010, filed a Charge of Discrimination with the EEOC. (Id. at ¶¶25, 78, 80). On March 9, 2011, Sasha Dulkerian, a male employee of Pitre Albuquerque since September of 2007, filed a Charge of Discrimination with the EEOC. (Id. at ¶¶ 27, 83). The EEOC conducted an investigation regarding the allegations made in the charges, issued letters of determination as to both charges, engaged Pitre in informal methods of conciliation, and provided Pitre with notice once the EEOC determined that conciliation efforts had failed. (Id. at ¶¶ 10-15).
On September 29, 2011, the EEOC filed this lawsuit on behalf of the Charging Parties and a group of aggrieved male employees based upon the hostile work environment and retaliation at the Pitre Albu
The EEOC and Pitre have filed separate motions addressing the EEOC’s authority to use the pattern-or-practice framework and the process by which this case should be tried. Pitre has moved to dismiss the EEOC’s § 707 claim pursuant to Rule 12(b)(6) or to bifurcate the §§ 706 and 707 claims on the bases that §§ 706 and 707 are distinct, the EEOC did not plead a separate claim under § 707, and the EEOC failed to identify a specific employment policy or practice to tie the discrete employment decisions together into a systemic procedure. (Doc. 76). The EEOC opposes the motion, contending that Title VII allows it to allege a pattern or practice of discrimination under both §§ 706 and 707, that it sufficiently pled its hostile work environment claim, and that Pitre has not met the burden to support its bifurcation request. (EEOC’s Brief in Opposition of Defendant’s Motion to Dismiss and Alternative Request to Bifurcate Plaintiffs Section 707 Claim,' Doc. 86).
The EEOC has requested that discovery and trial be bifurcated into two phases. (Doc. 67). The first phase of trial would resolve the pattern-or-practice claim .and determine whether punitive damages are available, and the second would apply a rebuttable presumption of discrimination if the pattern or practice is proven and address the individual claims and damages. Pitre objects to the EEOC’s proposed bifurcation, arguing that bifurcation is inappropriate in a § 706 or hybrid §§ 706 and 707 claim, that it would strip Pitre of its right to present a defense as to liability, and that it is inappropriate in a case alleging a pattern or practice of. sexual harassment culminating in a hostile work environment. (Defendant’s Response in Opposition to the EEOC’s Motion to Bifucate, Doc. 75).
Pitre requested oral argument on both motions, but the Court has determined that oral argument would not assist the resolution of these matters. Thus, the issues before the Court shall be decided on the briefs. See D.N.M.LR-Civ. 7.6(a) (“A motion will be decided on the briefs unless the Court sets oral argument.”).
II. Legal Standards
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint in whole or in part for failing to state a claim upon which relief is available: A complaint need not include “detailed fac
Federal Rule of Civil Procedure 42 permits the bifurcation of issues or claims in a case “[f|or convenience, to avoid prejudice, or to expedite and economize .... ” When a court considers whether to bifurcate a trial, efficient judicial administration is the controlling interest. Charles Alan Wright Et Al., 9a Federal Practice & Procedure § 2388 (3d ed.) (citations omitted). The party seeking separate trials bears the burden of proving that bifurcation is necessary. Id. (citations omitted). Nevertheless, it is well-established that the question of whether separate trials should be ordered and how the case should be bifurcated are matters left to the sound discretion of the trial court. See Palace Exploration Co. v. Petroleum Dev. Co.,
•III. Title VII Discrimination Claims
Title VII of the Civil Rights Act of 1964 provides, in relevant part, that '“[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). In Title VII, as amended, Congress empowered the EEOC to prevent unlawful employment practices under two separate sections. See 42 U.S.C. §§ 2000e-5 & 2000e-6.
Section 706 of Title VII authorizes the EEOC to sue an employer and secure relief on behalf of a person or group of aggrieved persons for an employer’s unlawful employment practice. 42 U.S.C. § 2000e-5. In a suit brought pursuant to § 706, the EEOC “stands in the shoes of those aggrieved persons in the sense that it must prove all of the elements of their sexual harassment claims to obtain individual relief for them.” EEOC v. CRST Van Expedited, Inc.,
Section 707 of Title VII authorizes the EEOC to sue when it “has reasonable cause to believe that [an employer] is engaged in a pattern or practice” of unlawful discrimination. 42 U.S.C. § 2000e-6(a). This type of action is designed to “eradicate systemic, company-wide discrimination .... ” EEOC v. Mitsubishi Mo
There are two types of Title VII employment discrimination: disparate impact, which involves a facially neutral employment practice resulting in disproportionate impact, and disparate treatment, which involves intentionally discriminatory employment practices. See Santana v. City & Cnty. of Denver,
The first, advocated by Pitre as the sole model available for individual claims of discrimination, is commonly known as the McDonnell Douglas burden-shifting framework. Under this framework, the plaintiff must first establish a prima facie case of discrimination in violation of Title VII. McDonnell Douglas Corp. v. Green,
The second model applies when the plaintiff alleges a pattern or practice of discrimination and is called the Teamsters model. Here, the plaintiff has a heightened initial burden to establish that: (1) there was unlawful discrimination; and (2) the discrimination “has been a regular procedure or policy followed by an employer ....” Teamsters,
WHile McDonnell Douglas and Teamsters constitute the two models most commonly discussed, it is of note that this Court has not found a single Tenth Circuit case that applies either framework to a sexual harassment hostile environment case. In fact, it appears that the Tenth Circuit does not discuss hostile work environment claims in terms of shifting burdens at all. See EEOC v. PVNF, L.L.C.,
IV. The EEOC May Proceed under the Pattern-or-Practice Framework
Though Title VII was enacted nearly fifty years ago, systemic harassment law remains in its infancy. See Jason R. Bent, Systemic Harassment, 77 Tenn. L. Rev. 151, 151-53 (Fall 2009). There have been only a handful of federal district court cases brought by the EEOC alleging that an employer engaged in a pattern or practice of sexual harassment, and appellate courts have not had cause to rule on the basic legal issues presented by systemic harassment litigation. While the federal district courts have frequently disagreed over how these cases should be litigated and what procedures apply, all concur that an employer’s pattern or practice of tolerating sexual harassment is actionable under Title VII. Id. at 171 (citations omitted); see, e.g., EEOC v. Burlington Med. Supplies, Inc.,
Pitre does not question whether the EEOC’s systemic harassment claim is cognizable as a general matter; instead, Pitre attacks the EEOC’s authority to simultaneously bring a claim of a pattern or practice of discrimination and seek individual, monetary relief. Pitre attempts to persuade this Court that the EEOC’s authority to bring suit under Title VII is clearly delineated and well-defined. A basic review of the statute demonstrates that Pitre’s position is far from accurate. In fact, in an effort to ensure that the EEOC could prevent unlawful employment practices, Congress opted to give the EEOC broad and overlapping authority. See id. at 325-26, 100' S.Ct. 1698 (discussing the expansion of the EEOC’s enforcement powers in 1972 and stating, “[i]n so doing, Congress sought to implement the public interest as well as to bring about more effective enforcement of private rights.”). Sections 706 and 707 clearly overlap, pro
The Sixth Circuit recently issued a ruling discussing this very issue, albeit in the context of a sex discrimination case. In Serrano v. Cintas Corp.,
While recognizing that § 706 does not explicitly authorize a pattern-or-practice suit, unlike § 707, the Sixth Circuit concluded that relevant Supreme Court precedent suggested that the inclusion of that language in § 707 simply limited the scope of the EEOC’s authority to act under § 707. Id. In determining that the EEOC may pursue its claim under the pattern-or-practice framework pursuant to its § 706 authority, the court acknowledged some overlap between §§ 706 and 707. It hypothesized that Congress wanted to provide the EEOC with different vehicles for initiating Title VII suits and concluded that different remedies were appropriate given that “the need for compensatory and punitive damages diminishes when the EEOC is not seeking compensation for a specific victim of discrimination.” Id. at 896. Finally, the court dismissed the defendant’s argument that allowing the EEOC to pursue its claims using the pattern-or-practice method under § 706 would deprive the defendant of the opportunity to present a defense and allow the EEOC to “have its cake and eat it too[.]” Id. at 896. The court cogently explained that the Teamsters framework constitutes merely a different, not easier, standard of proof, which requires the plaintiff to bear a more arduous initial burden. Id. Because of the heavier initial burden, a presumption arises; the defendant may, nevertheless, rebut the presumption. Id. In summary, the only appellate court to squarely address the issue concluded that the EEOC can use the pattern-or-practice theory to prosecute a sex discrimination claim pursuant to its § 706 authority.
Pitre’s arguments in support of its motion to dismiss are quite similar to those expressed by the defendant in Serrano. For the same reasons expressed in the well-reasoned Sixth Circuit opinion, this Court rejects Pitre’s arguments. The Supreme Court has expressed reluctance, “absent clear congressional guidance, to subject § 706(f)(1) actions to requirements that might disable the enforcement agency from advancing the public interest in the manner and to the extent contemplated by the statute.” Gen. Tel.,
Pitre only asks the Court to dismiss the EEOC’s claim to the extent that it relies on the pattern-or-practice method of proof, so the determination that the EEOC may proceed under this framework
V. The EEOC Need Not Plead Intent to Rely on Pattern-or-Practice Framework
Pitre next asks this Court to dismiss the EEOC’s claim at least in part because the EEOC did not specifically plead its intent to rely on the pattern-or-practice method of proof. (Doc. 76 at 14-15). As discussed by the EEOC, the Supreme Court has clearly held that an employment discrimination complaint is sufficient if it describes the specific unlawful employment action, the nature of the discrimination, and the time period. Swierkiewicz v. Sorema N.A.,
In the Sixth Circuit’s recent decision, the court looked to Swierkiewicz and found that the case “compels the conclusion” that a plaintiff is not required to plead the framework that he will use to prove his case. Serrano,
This Court agrees with the rationale and decision of the Sixth Circuit: the EEOC in a Title VII case is not required to plead the evidentiary framework on which it intends to rely to prove its case. It need only set forth sufficient facts to render its claim for relief under Title VII plausible. The complaint here makes clear that the EEOC intends to prove that James Gallegos’ conduct created a hostile
VI. Bifurcation of Trial
Having established that the EEOC may proceed in this case as presented in its complaint, the Court will explain the method by which this case will be tried. There are two causes of action in the EEOC’s complaint: hostile work environment due to sexual harassment and retaliation. It appears that the EEOC intends to prove both under the pattern- or-practice framework. While retaliation claims can be heard under the ordinary bifurcated model of Teamsters, sexual harassment claims, because they involve both objective and subjective elements, cannot.
A thorough review of district court decisions in systemic harassment cases demonstrates that all federal district courts to confront this issue have ordered a bifurcated trial, save one. See EEOC v. JBS USA LLC, No. 10-cv-02103-PAB-KLM,
a. Approaches to the Order of Proof
In an attempt to discern the appropriate order of proof for this systemic harassment litigation, a review of prior district court decisions is in order. The only court that refused to allow the bifurcation of a hostile work environment claim was the district court in JBS USA
Under the remaining approaches, the Teamsters framework is modified to accommodate the subjective element of the claim. At Phase I, the burden rests with the plaintiff to establish a pattern or practice of harassment based on the objective elements of sexual harassment, including that “an objectively reasonable person would find that, as a whole, the environment within the company is hostile.... ” Mitsubishi,
To recover damages, the ease proceeds to a second phase. Under two similar models, each individual “potential victim” or member of the “affected class” is enti
b. Approaches to Punitive Damages
Courts that have considered whether punitive damages should be addressed during Phase I or Phase II have taken different approaches. The first, advocated by the EEOC as well as the district court in EEOC v. Dial Corp.,
The other approach, which Pitre would prefer if the trial is bifurcated as the EEOC requests, limits any punitive damages inquiry to Phase II. The IPA Court adopted this approach, looking to precedent that addressed the primary relief sought in employment discrimination cases to determine whether a class could be certified.
c. Bifurcation in this Matter
Having considered the merits of each approach, the Court finds the Jenson approach to bifurcation, as it is explained above, to be the most appropriate and efficient in this matter. First, the Court notes that the environment to which Pitre’s male employees were subjected during James Gallegos’ employment is likely very similar, given that the EEOC has only alleged that there was one harasser. Thus, because the EEOC’s claims fall
The Court further finds the approach to punitive damages utilized by the district court in Outback most appropriate. While an award of punitive damages is a form of individual relief, punitive damages focus on the conduct of the defendant and are intended to punish and deter him from committing future violations. See Waffle House,
Accordingly, the trial of this matter will proceed in the following manner. At Phase I, the trier of fact will determine whether Pitre maintained a pattern or practice of condoning a sexually harassing hostile work environment, whether Pitre had a policy of retaliating against those who complained of the environment, and whether Pitre did so with malice or reckless disregard of the aggrieved employees’ federally protected rights. The EEOC will be required to establish a prima facie case of retaliation as to the group of aggrieved persons. It must also satisfy all objective elements of its hostile work environment claim, including the basis for employer liability. Finally, it must show, as to both causes of action, that the unlawful employment practice “was the company’s standard operating procedure [ — ] the regular rather than the unusual practice.” Teamsters,
Then, at Phase II, the availability and extent of individual relief will be determined. A presumption will apply that each individual within the relevant time period satisfied the objective elements of his claims. However, each aggrieved person will bear the burden to prove that he was subjected to unwelcome workplace harassment and retaliation. This may consist merely of his testimony. Pitre may then present individualized defenses to liability. Pitre may also rebut all Phase I findings on an individualized basis.
To the extent the parties request a ruling on the bifurcation of discovery, the Court will refer this determination to Magistrate Judge Karen B. Molzen. The expertise of Judge Molzen in the realm of discovery will allow her to determine a reasoned, appropriate discovery plan that balances the concerns of expediency with Pitre’s right to present a full and complete defense. Once a discovery plan is established, and upon the request of the parties, the Court will determine whether separate juries will be used for the different phases of trial.
THEREFORE,
IT IS ORDERED that the EEOC’s Motion for Bifurcation (Doc. 67), filed June 13, 2012, is GRANTED, and Defendant’s Motion to Dismiss, or Alternatively, to Bifurcate Plaintiffs Section 707 Claim (Doc. 76), filed June 29, 2012, is DENIED.
Notes
. It is possible that the EEOC will rely on § 707 in an effort to skirt the 300-day statutory limitations period. At this time, though, the Court need not determine the EEOC’s authority to bring suit under §§ 706 and 707 simultaneously.