Mirna E. SERRANO et al., Plaintiffs, Equal Employment Opportunity Commission, Plaintiff Intervenor-Appellant, v. CINTAS CORPORATION, Defendant-Appellee.
Nos. 10-2629, 11-2057
United States Court of Appeals, Sixth Circuit.
Argued: April 20, 2012. Decided and Filed: Nov. 9, 2012.
Rehearing and Rehearing En Banc Denied Jan. 15, 2013.
699 F.3d 884
KAREN NELSON MOORE, Circuit Judge.
Baptist‘s decision to use an automatic-deduction and self-reporting system for missed breaks is permissible, but the consequences of an employee‘s failure to report a missed break still fall on the employer, not the employee. Unlike many of the above-cited cases, White performed all her work in a hospital on an emergency-room floor surrounded by Baptist employees and was under active supervision by either a charge nurse or some other supervisor at all times. White has met her burden of presenting evidence from which a jury could find that her employer knew or should have known that she was missing lunches and not receiving pay (or potential overtime). Whether the discouragement White received from her supervisors was truly not about seeking pay for that missed break is not resolvable on summary judgment. For all of these reasons, I respectfully dissent.
Before: MOORE, GIBBONS, and ALARCÓN,* Circuit Judges.
MOORE, J., delivered the opinion of the court, in which ALARCÓN, J., joined and GIBBONS, J., joined in part. GIBBONS, J. (pp. 906-08), delivered a separate opinion concurring in part and dissenting in part.
OPINION
KAREN NELSON MOORE, Circuit Judge.
The Equal Employment Opportunity Commission (“EEOC“) appeals two judgments entered by the district court in favor of Cintas Corporation (“Cintas“) on*
I. BACKGROUND AND PROCEDURAL HISTORY
A. Background
Cintas is a corporation that supplies uniforms to businesses throughout North America. Sealed Appx. at A-1095. In fact, it is the largest such supplier with more than 800,000 clients and 400 operating facilities. Id. Cintas‘s SSRs are a key component of its workforce and provide the essential function of driving trucks to pick up and deliver uniforms and other products requested by clients. Id. at A-911. While performing these functions, SSRs are also expected to act as sales representatives by providing any needed customer service, pitching up-sells to existing clients, and collecting payments due for services. Id. at A-911-12. Because SSRs are constantly out in the field servicing customers, SSRs are in many respects the public “face of Cintas.” Id. at A-851.
Given the various demands of the job, SSRs are required to possess both communication and sales skills as well as the physical capacity to drive trucks and make deliveries. Id. at A-439-442. In addition, all SSRs are required to have a high school diploma or GED and a driver‘s license. Id. at A-37. The selection process for SSR candidates begins with a review of the candidate‘s application and resume. Id. at A-226, A-228. Desirable candidates are then selected for a brief screening interview, which may be conducted either in person or on the phone. Id. Candidates who perform well in screening are then invited to participate in more in-depth interviews and on-the-job simulations, after which an offer of employment may be made. Id. at A-234.
Mirna Serrano (Serrano), a female, unsuccessfully “applied numerous times” for a position as an SSR at Cintas‘s Michigan Westland location. R. 876-5 (Serrano EEOC Charge). Concluding that Cintas‘s failure to hire her may have been because of her sex, Serrano filed a discrimination charge with the EEOC on April 7, 2000. Id. On July 3, 2002, after investigating Serrano‘s claims and then expanding the investigation to include Cintas‘s female hiring practices throughout Michigan, the EEOC issued a reasonable-cause determination stating that the EEOC had “reasonable cause to believe that [Serrano‘s] allegations are true” and “reasonable cause to believe that [Cintas] has discriminated against females as a class.” R. 836-40 (EEOC Reasonable-Cause Determination). That same day, the EEOC sent a proposed conciliation agreement to Cintas suggesting that relief be provided to Serrano, one-hundred and eleven other specified women, and an unspecified number of “other similarly situated females.” R. 836-41 (Proposed Conciliation Agreement at 3-4). Cintas did not respond or present a counteroffer for settlement. As a result, almost three years later on April 14, 2005, the EEOC notified Cintas that it was ter-
B. Procedural History
In May 2004, while the EEOC and Cintas were still involved in conciliation, Serrano filed a
After the class-certification issues were resolved, the EEOC and Cintas held a scheduling conference on August 10, 2009, and the district court set dates for discovery and the final pre-trial conference. R. 646 (Dist. Ct. Sched. Order, 8/11/09). In recognition of the denial of nationwide class certification for the private plaintiffs, the EEOC filed an amended complaint on August 20, 2009, which limited its allega-
tions to “a class of women in the State of Michigan” as opposed to females nationwide. See R. 650 (EEOC First Amend. Compl. ¶¶ 8, 9, 11).
On October 21, 2009, Cintas moved for judgment on the pleadings, arguing that the EEOC could assert a claim of pattern-or-practice discrimination only pursuant to the EEOC‘s authority under
The district court denied the discovery motions one by one. First, after a hearing, the district court denied the motion for an extension of discovery on April 5, 2010. R. 783 (Dist.Ct.Order, 4/5/10). Next, upon advice from the magistrate judge, the district court refused to compel
On June 2, 2010 after the close of the discovery period, the district court denied the EEOC‘s motion to file a second amended complaint. R. 829 (Dist.Ct.Order, 6/2/10); R. 940 (Amended Dist. Ct. Order). The next day the magistrate judge held a hearing on Cintas‘s motion for a protective order, and then issued an order granting the motion. R. 831 (Magistrate Order, 6/10/10). Although the EEOC filed objections, R. 834 (EEOC Objections), it does not appear that the district court ever ruled on them.
On June 25, 2010, Cintas moved for summary judgment alleging that the EEOC failed to satisfy the administrative prerequisites to suit under
On October 18, 2010, Cintas moved, as the prevailing party, for attorney fees and costs, R. 943 (Cintas Mot. for Fees and Costs), and the district court granted the motion on August 4, 2011, R. 1079 (Dist.Ct.Op., 8/4/2011). The district court entered judgment on August 18, 2011, R. 1080 (Judgment, Case No. 11-2057), and the EEOC filed a timely notice of appeal, R. 1081 (Notice of Appeal, Case No. 11-2057).
II. ANALYSIS
The EEOC raises a number of challenges to the district court‘s resolution of its claims against Cintas. In particular, the EEOC argues that the district court erred in: (1) holding that the EEOC could not pursue a pattern-or-practice style claim pursuant to
A. Pattern or Practice of Discrimination
The first, and ultimately most salient, issue in this case concerns the disagreement among the parties as to whether the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework, or whether it may employ the pattern-or-practice framework
1. Title VII Discrimination Claims
“The Supreme Court has recognized two distinct types of
Both McDonnell Douglas and Teamsters provide frameworks through which a plaintiff can prove intentional discrimination through circumstantial evidence. See Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d 151, 165 (6th Cir. 2004) (“[T]he McDonnell Douglas...paradigm [is] utilized for intentional discrimination cases premised solely on circumstantial evidence.“); Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 183 (3rd Cir. 2009) (“The Teamsters framework was judicially promulgated as a method of proof for pattern-or-practice claims brought by the government under
The McDonnell Douglas burden-shifting framework consists of a three-step process. It requires a plaintiff first to establish a prima facie case by presenting
The Teamsters framework is distinct. It charges the plaintiff with the higher initial burden of establishing “that unlawful discrimination has been a regular procedure or policy followed by an employer or a group of employers.” Teamsters, 431 U.S. at 360. Upon that showing, it is assumed “that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy” and, therefore, “[t]he [plaintiff] need only show that an alleged individual discriminatee unsuccessfully applied for a job.” Id. at 362. The burden then shifts to “the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id. “When the Government seeks individual relief for the victims of the discriminatory practice,” bifurcation of proceedings may be proper because “a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.” Id. at 361.
The two structures are similar insofar as they impose the initial burden on the plaintiff to present facts sufficient to create an inference of discrimination. See id. at 358. However, the substance of what the plaintiff must prove to prevail in establishing a prima facie case varies under each framework. In addition, the Teamsters framework contemplates a bifurcation of proceedings that the McDonnell Douglas framework does not. Accordingly, the district court‘s decision that the EEOC could not proceed under the Teamsters framework matters greatly to the structure of the proceedings as they move through discovery and eventually to trial. Before reviewing the merits of the district court‘s decision in this regard, it is useful to clarify its procedural posture for context.
After answering the EEOC‘s complaint and attending a scheduling conference, Cintas moved for judgment on the pleadings pursuant to
2. Teamsters Framework in an EEOC Suit Pursuant to § 706
The first issue that we must address, and the one given considerable attention by Cintas on appeal, is whether the EEOC may employ the Teamsters framework only when it acts pursuant to
Cintas is correct that
The premise for the Supreme Court‘s decision in Teamsters was that McDonnell Douglas did not create “an inflexible formulation” for burden shifting, but rather embodied the “general principle that any
The Teamsters opinion, while ostensibly specific to suits that the EEOC brings pursuant to
The EEOC asserts that the Sixth Circuit‘s decision in EEOC v. Monarch Machine Tool Co., 737 F.2d 1444 (6th Cir. 1980), is binding precedent endorsing Teamsters‘s application in the
Cintas‘s strongest argument is that allowing the EEOC to pursue
Cintas also suggests that allowing the EEOC to pursue the pattern-or-practice method for
Accordingly, we hold that the district court erred in concluding that the EEOC may not pursue a claim under the Teamsters pattern-or-practice framework, pursuant to its authority vested in
3. Failure to Assert Teamsters Framework in Complaint
Having concluded that the EEOC may pursue its claim under the Teamsters pattern-or-practice framework pursuant to its authority under
The Supreme Court‘s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), which neither the parties nor the district court discussed, has important implications for this issue. In Swierkiewicz, the Supreme Court resolved “the question whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the [McDonnell Douglas] framework.” Id. at 508. The Court answered in the negative and explained that “[t]he prima facie case under McDonnell Douglas...is an evidentiary standard, not a pleading requirement.” Id. at 510. Thus, the Court reasoned, because “the precise requirements of a prima facie case can vary depending on the context,” and the appropriate type of prima facie case may not be evident until discovery is conducted, it would be improper to impose “a rigid pleading standard for discrimination cases.” Id. at 512. In so holding, the Court recognized that in any given case a plaintiff may rely on direct or circumstantial evidence to prove the alleged intentional discrimination and, prior to knowing the universe of evidence available, it may be difficult to determine which theory is likely to be more successful. Id. at 511-12.
Consequently, Swierkiewicz establishes that so long as a complaint provides an adequate factual basis for a
Swierkiewicz compels the conclusion that a plaintiff is not required to plead whether she intends to employ the McDonnell Douglas or the Teamsters burden-shifting evidentiary framework. Keys, 684 F.3d at 606; see also Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009) (recognizing that any disagreement over the evidentiary framework under which to proceed is “premature” at the pleadings stage), cert. denied, 131 S.Ct. 2091 (2011). Although a plaintiff
In sum, Swierkiewicz and Teamsters indicate that the district court erred in holding that Cintas was entitled to judgment on the pleadings in light of the EEOC‘s failure to plead its intent to rely on the Teamsters framework. Teamsters provides an evidentiary framework pursuant to which the EEOC may seek to prove its allegations of intentional discrimination, not an independent cause of action. See Hohider, 574 F.3d at 183. The EEOC, therefore was under no obligation to plead its intent to utilize the Teamsters framework; the EEOC was required only to set forth sufficient facts in its complaint upon which its claim for relief under
We do observe that the EEOC‘s complaint is not a model of good lawyering. The complaint is sparse—the substance of its allegations span only four brief paragraphs. Perhaps the EEOC relied on the private plaintiffs’ complaint as establishing the context.3 Indeed, in light of that context, we are deeply suspicious of any argument by Cintas that it had no idea that the EEOC intended to proceed on a theory of discrimination that involved class-based allegations of pattern-or-practice discrimination. Thus, were Cintas on
B. Motion for Leave to File a Second Amended Complaint
After the district court held that the EEOC could not proceed under the Teamsters framework pursuant to
pursuant to the Teamsters pattern-or-practice framework. First, the private class-action suit in which the EEOC intervened concerned allegations that Cintas engaged in a pattern or practice of unlawful discrimination. See R. 70 (Plaintiffs Second Amend. Compl. ¶ 1). The denial of Rule 23 nationwide class certification for the private plaintiffs had no impact on the EEOC‘s class claims because Rule 23 does not apply to suits brought by the EEOC. Gen. Tel. Co. of the Nw., 446 U.S. at 323; see also Davoll v. Webb, 194 F.3d 1116, 1146 n. 20 (10th Cir.1999) (denying class certification but upholding EEOC‘s
the EEOC‘s appeal of the denial of its motion to amend is moot. However, because we are remanding to the district court to permit the EEOC to proceed under the pattern-or-practice-style framework pursuant to
C. Discovery Disputes
As previously mentioned, the EEOC challenges three discovery orders issued by the district court prior to its final judgment on the merits: (1) an order denying the EEOC‘s request for extension of discovery; (2) an order denying the EEOC‘s motion to compel Cintas to produce unredacted employment applications by Cintas; and (3) a protective order barring the deposition of Cintas executive Scott Farmer. We review these discovery decisions for abuse of discretion. Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010) (“We review a district court‘s denial of additional time for discovery for an abuse of discretion.“); United States v. Blood, 435 F.3d 612, 627 (6th Cir. 2006) (“We review the denial of a mo-
have signaled to Cintas that the EEOC would be proceeding on the same theory, just on a more limited scope.
The EEOC‘s amended complaint also made clear that the EEOC‘s allegations extended beyond isolated incidents of discrimination. The EEOC alleged that Cintas “refused to recruit and hire women as Route Sales Drivers/Service Sales Representatives throughout the State of Michigan because of their sex” and purported to seek relief for “a class of women in the State of Michigan.” R. 650 (EEOC First Amend. Compl. at 2, ¶¶ 8, 9) (emphasis added). The EEOC also requested relief tailored to remedying class-based harms: The EEOC requested an order that Cintas “institute and carry out polices, practices, and programs that provide equal employment opportunities for women and eradicate the effects of its past and present unlawful employment practices.” Id. at 4.
1. Motion to Extend Discovery
The EEOC made clear that its motion for an extension of discovery was filed in light of the district court‘s ruling that the EEOC could not proceed under the Teamsters pattern-or-practice framework. See EEOC Br. at 98 (“After the February order, EEOC faced the prospect of proving sex discrimination through scores of individual disparate treatment cases, rather than the Teamsters framework for which it had spent years preparing. EEOC realized that it would be unworkable to develop cases for all potentially-injured female applicants in the short discovery period remaining, and so it immediately moved (on February 17, 2010) for a discovery extension.“). Because we have held that the EEOC may proceed under the Teamsters framework, the EEOC‘s appeal of the denial of this specific motion is moot. Moreover, although it is likely in light of our pattern-or-practice ruling that a new period of discovery will be necessary, we defer to the district court‘s judgment on this matter in the first instance.
2. Motion to Compel Production of Unredacted Applications
The EEOC also appeals the denial of its motion to compel Cintas to produce unredacted versions of the employment applications that the company produced during discovery. The magistrate judge initially denied the EEOC‘s motion because of the4
district court‘s pattern-or-practice ruling, concluding that the EEOC was not entitled to this discovery in light of proceeding solely on the thirteen individual claims. R. 807 (Magistrate Order, 4/22/10, at 2). The district court affirmed this ruling over the EEOC‘s objections. R. 843 (Dist.Ct.Order, 7/7/10). Due to our ruling that the EEOC may proceed under the pattern-or-practice framework, the district court‘s rationale for denying this discovery request no longer exists. Accordingly, we vacate the district court‘s ruling and remand for further proceedings.
3. Deposition of Scott Farmer
In 2003, at Cintas‘s annual management meeting, Scott Farmer, Cintas‘s CEO, directed the attendees—as part of his discussion of diversity, a “key initiative” for the coming year—to “put the myth that females cannot be SSRs out of your mind and hire more women SSRs.” Sealed Appendix at A-28, A-32. During the course of discovery, the EEOC entered notice of its intention to depose Farmer based on this statement. Cintas opposed the deposition and sought a protective order, which the magistrate judge granted. The magistrate judge, applying the “apex doctrine“—a doctrine that bars the deposition of high-level executives absent a showing of their “unique personal knowledge” of relevant facts—concluded that taking the deposition of Farmer was improper because the EEOC had failed to demonstrate that Farmer had personal knowledge about the individual claimants’ rejected applications for employment. R. 831 (Magistrate Order, 6/10/10, at 5-6); see also R. 816-2 (Farmer Aff. ¶¶ 5-9) (stating under oath that Farmer has no personal knowledge of these individual hiring deci-
As articulated by the magistrate judge, the “apex doctrine” appears to assume that “harassment and abuse” are “inherent” in depositions of high-level corporate officers and therefore allow such depositions to be barred absent “a showing that the individual possesses relevant evidence which is not readily obtainable from other sources.” R. 831 (Magistrate Order, 6/10/10, at 3-4). A few district courts in the Sixth Circuit have recently applied the apex doctrine claiming that while “the term ‘apex deposition’ has not been used by the Court of Appeals for the Sixth Circuit...this Circuit [has] used the same analysis without using the specific term.” HCP Laguna Creek CA, LP v. Sunrise Sr. Living Mgmt., Inc., No. 3-10-0220, 2010 WL 890874, at *3 n. 4 (M.D.Tenn. Mar. 8, 2010) (unpublished order); see also Moore v. Weinstein Co., No. 3:09-cv-166, 2011 WL 2746247, at *3 (M.D.Tenn. July 12, 2011) (unpublished opinion); Jones Co. Homes, LLC v. Laborers Int‘l Union of N. Am., No. 10-mc-50989, 2010 WL 5439747, at *3 (E.D.Mich. Dec. 28, 2010) (unpublished order). We disagree.
This Circuit has endorsed the view that to justify a protective order, one of Rule 26(c)(1)‘s enumerated harms “must be illustrated ‘with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.‘” Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981)). In keeping with this principle, while we sometimes have considered the need for the deposition—i.e., its potential to result in relevant testimony—in reviewing the grant or denial of a protective order, we have not abandoned the requirement that one of the harms listed in Rule 26(c)(1)(A) must be specified in order to warrant a protective order. Even in cases where we have considered extensively a corporate officer‘s knowledge and, thus, capacity to provide information relevant to the case, we have declined “to credit a [corporate officer‘s] bald assertion that being deposed would present a substantial burden,” and still required the corporate officer to meet Rule 26(c)(1)‘s requirements. Conti v. Am. Axle & Mfg., Inc., 326 Fed.Appx. 900, 907 (6th Cir. 2009) (unpublished opinion).
For example, in Elvis Presley Enterprises v. Elvisly Yours, Inc., 936 F.2d 889, 894 (6th Cir. 1991), we upheld a protective order barring the deposition of Priscilla
Neither Bush nor Lewelling dissuades us of this view. Bush involved an order by the district court barring the deposition of one corporate official and limiting the length and scope of another‘s to questions regarding the officer‘s involvement in the adverse employment decision at issue. 161 F.3d at 367. Although in Bush we discussed the relevant knowledge both corporate officers had regarding the case, we ultimately upheld the district court‘s limitations, concluding that they “seem[ed] a reasonable way to balance [plaintiff‘s] right to discovery with the need to prevent ‘fishing expeditions.‘” Id. In so concluding, we balanced the burdens on the deponent with the need for access to information relevant to the case, thus ensuring compliance with Rule 26(c)(1). Similarly, in Lewelling, we upheld a protective order barring the deposition of the “then-Chairman of the Board of Directors and Chief Executive Officer” of the defendant corporation. Lewelling, 879 F.2d at 218. The decision was brief, mentioning only the fact that plaintiffs had offered to cancel the deposition in exchange for settlement negotiations and that the corporation asserted that its officer had no knowledge relevant to the case. Id. Though not explicitly discussed, plaintiffs’ offer to cancel the deposition in exchange for settlement indicated that its deposition notice was being
used as an oppressive bargaining chip, contrary to the purpose that deposition requests are meant to serve. Therefore, cognizant of Rule 26(c)(1), we upheld the protective order.
Accordingly, we conclude that the magistrate judge erred as a matter of law in relying on “apex doctrine” to grant the protective order. In doing so, the magistrate judge considered only Farmer‘s knowledge relevant to the EEOC‘s claims and failed to analyze, as required by Rule 26(c)(1), what harm Farmer would suffer by submitting to the deposition. This error of law constitutes an abuse of discretion that warrants vacating the magistrate judge‘s order. See United States v. Clay, 667 F.3d 689, 694 (6th Cir. 2012) (“[I]t is an abuse of discretion to make errors of law or clear errors of factual determination.“) (internal quotation marks omitted).
Regardless, the magistrate judge‘s conclusion that Farmer is unlikely to have any information relevant to the issues in the case is undermined by our ruling that the EEOC may proceed under the Teamsters pattern-or-practice framework. Farmer‘s statements do suggest high-level-corporate awareness of Cintas‘s failure to hire females for the SSR positions, and this goes to the heart of what the EEOC will seek to prove in proceeding with its claims toward trial. In this sense, Farmer‘s testimony is likely to be highly probative, and he will need to demonstrate a substantial burden to justify a protective order barring discovery. See 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER ET AL., FEDERAL PRACTICE AND PROCEDURE § 2036 (3d ed. 2012). Accordingly, we vacate the district court‘s order and remand for further proceedings.
D. Summary Judgment: Individual Claims
The district court granted summary judgment to Cintas on the EEOC‘s claims
The district court concluded that the EEOC failed to state a prima facie case of sex discrimination for eight of the individual claimants because each claimant was not objectively eligible for employment due to allegedly dishonest representations in her employment application. The EEOC argues that this conclusion was erroneous because the district court evaluated the candidates’ eligibility for employment based on after-acquired evidence of dishonesty in conflict with the Supreme Court‘s decision in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). At issue in McKennon was “whether an employee discharged in violation of the [ADEA] is barred from all relief when, after her discharge, the employer discovers evidence of wrongdoing that, in any event, would have led to the employee‘s termination on lawful and legitimate grounds.” Id. at 354. Given ADEA‘s purposes, the Court declined to adopt “[a]n absolute rule barring any recovery of back-pay.” Id. at 362. However, the Court recognized that this after-acquired evidence could be considered in a court‘s weighing of the “extraordinary equitable circumstances that affect the legitimate interests of either party.” Id. The Court also stated
that reinstatement or front pay generally would be an inappropriate remedy in such a circumstance. Id.
Under Teamsters the EEOC must make a prima facie showing of a pattern-or-practice of discrimination, which is left to the employer to rebut by demonstrating a lawful reason for its employment decision. 431 U.S. at 360. Thus, the district court‘s ruling on after-acquired evidence of dishonesty pertains to the employer‘s burden rather than the EEOC‘s prima facie case. However, under Teamsters, as under McDonnell Douglas, the district court‘s conclusion that any dishonesty by an individual in an employment application operates as a per se bar to relief, regardless of whether Cintas was aware of the dishonesty at the time of the employment decision, conflicts with the careful framework established in McKennon. See McKennon, 513 U.S. at 358 (“It would not accord with this scheme if after-acquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation.“). Indeed, case law from this Circuit suggests that, if anything, after-the-fact evidence of dishonesty should be considered only in determining the amount of damages due to the individual and not in the initial liability stage. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 416 n. 2 (6th Cir. 2004) (“Thus, while this post hoc, additional ground for plaintiff‘s termination may be relevant to the calculation of any damages, it is irrelevant to the determination of whether defendant improperly terminated plaintiff under the ADA or the FMLA in the first instance.“), cert. denied, 543 U.S. 1146 (2005); Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 718 n. 3 (6th Cir. 2003) (“Regardless, this misrepresentation clearly was not a factor in Honda‘s decision to
It would be inappropriate for us to speculate as to what relief the EEOC may or may not be eligible to seek on behalf of allegedly dishonest individuals should it succeed in proving that Cintas was engaged in a pattern or practice of discrimination. However, in light of the district court‘s prior ruling, we do wish to emphasize that consideration of individual applicants’ dishonesty should be reserved for the remedial portion of the proceedings.
E. Administrative Prerequisites: Conciliation of Claims
Shortly after granting summary judgment to Cintas on the merits of the thirteen individual discrimination claims, the district court also granted Cintas summary judgment on the ground that the EEOC failed to comply with the administrative prerequisites to suit under
In EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1100 (6th Cir. 1984), we recognized that “the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of th[e] agency” and, consequently, that it is inappropriate for a “district court to inquire into the sufficiency of the Commission‘s investigation.” Instead, a district court should determine whether the EEOC made a good-faith effort to conciliate the claims it now asserts, thereby providing the employer with ample notice of the prospect of suit. Id. at 1102.
Despite the district court‘s conclusions otherwise, it is clear that the EEOC provided notice to Cintas that it was investigating class-wide instances of discrimination. In fact, the EEOC‘s reasonable-cause determination letter explicitly stated as much. See R. 836-40 (EEOC Ltr.) (“Furthermore, like and related and growing out of this investigation, there is reasonable cause to believe that [Cintas] has discriminated against females as a class by failing to hire them as Route Sales Drivers/Services Sales Representatives in violation of
Moreover, Cintas does not appear to refute the EEOC‘s assertion that Cintas expressed no interest to the EEOC in reaching a settlement on these claims.
In light of this Circuit‘s decision in Keco, it is clear that the EEOC satisfied its administrative prerequisites to suit. Accordingly, we reverse the district court‘s contrary determination.
F. Attorney Fees and Costs
The district court awarded Cintas attorney fees and costs because it deemed the EEOC‘s failure to comply with
However, even if our prior rulings did not command reversal of the award of attorney fees and costs, we would conclude that the district court abused its discretion in ordering the EEOC to pay Cintas attorney fees and costs. Awards of attorney fees and costs are preserved typically only for “unreasonable, frivolous, meritless, or vexatious” conduct. Christiansburg, 434 U.S. at 421. The district court identified the “egregious and unreasonable conduct” to include: (1) the EEOC filing over a dozen losing motions; (2) the EEOC‘s failure to respond properly to Cintas‘s discovery request; (3) the EEOC‘s “refusal to produce information regarding the identities of each individual” plaintiff after dismissal of the EEOC‘s pattern-or-practice claim; and (4) the EEOC‘s pursuit of claims on behalf of approximately forty individuals, despite its ultimate withdrawal of those claims because they lacked merit. R. 1079 (Dist.Ct.Op., 8/04/11, at 7-8). Standing alone, these actions do not seem so “unreasonable” as to warrant the district court‘s ruling. Christiansburg, 434 U.S. at 422. Moreover, none of the legal issues raised by the EEOC appear to have been “frivolous” or “groundless,” nor has the EEOC engaged in “unreasonable” litigation strategies in pursuit of its claim. Id. at 421-22; Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d 427, 438-39 (6th Cir. 2009). The EEOC pursued its claim within the bounds of professional conduct and in the good-faith belief that it had done what was necessary to satisfy its administrative prerequisites to suit. Accordingly, we see no basis for awarding Cintas attorney fees and costs as the district court has done here. See EEOC v. Bruno‘s Rest., 13 F.3d 285, 288 (9th Cir. 1993) (suggesting that the proper inquiry is not whether the EEOC failed to conciliate properly but “whether its belief that it had done so was reasonable“). We, therefore, reverse the district court‘s contrary determination.
III. CONCLUSION
In conclusion, we VACATE both judgments of the district court at issue in the
JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in part.
In my view, both the panel majority and the district court, although reaching differing conclusions, have strayed into thorny issues of
The key to understanding the issues in this case is examining the precise language of the EEOC‘s pleadings. The EEOC‘s Complaint in Intervention, filed December 23, 2005, alleges that Cintas has intentionally discriminated against the three named plaintiffs and “a class of women” by refusing to recruit and hire them as SSRs because of their sex. No other elaboration is provided. Section 706 is only mentioned as one of the statutory provisions under which the EEOC believed it was authorized to bring suit. That first pleading was superseded by the EEOC‘s First Amended Complaint, filed August 20, 2009. The operative language of the First Amended Complaint with respect to Cintas‘s alleged discriminatory practices is identical to that of the Complaint in Intervention, except that the class of women is more specifically defined as “a class of women in the State of Michigan.”
When Cintas sought judgment on the pleadings, it focused on the issue of whether a pattern-or-practice claim could be brought under
The majority is correct, I believe, in its assessment that neither mention of Teamsters nor the pleading of a prima facie case is required to bring a pattern-or-practice claim. But the point on which I differ from the majority is its conclusion that, since neither is required, the EEOC has therefore pled a pattern-or-practice claim. The EEOC‘s operative First Amended Complaint does not include even a shred of an allegation suggesting a pattern-or-practice claim. Like the Complaint in Intervention that it followed, it is fairly read only as pleading disparate treatment claims on behalf of the named plaintiffs and the women comprising the alleged class. The EEOC‘s pleadings give no notice that it is pursuing some other theory of relief.
Implicit in the majority‘s opinion is the notion that, because the complaint need not state an intent to proceed under Teamsters or the facts that will constitute a prima facie case, it is sufficient for the complaint to list the statutory provision under which suit is brought. There are situations in which that premise is arguably correct. For example, had the complaint sought relief under
Nor does mention of a “class” claim give notice of the nature of the claim. While certainly most, perhaps virtually all, pattern-or-practice cases are “class” cases, not all EEOC “class” cases are pattern-or-practice cases. A “class” case, from the EEOC‘s perspective, is simply a “suit[] on behalf of multiple aggrieved individuals who were victims” of a discriminatory employment practice or policy. See U.S. Equal Employment Opportunity Comm‘n, A Study of the Litigation Program Fiscal Years 1997-2001, at § B.2 (Aug. 13, 2002). In a “class” case, the EEOC may proceed under the McDonnell Douglas paradigm to prove the discrimination claims of one or more individual charging parties as a platform for obtaining relief for a broader, unidentified group of individuals. See, e.g., EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1189, 1191-1200 (10th Cir. 2000) (analyzing a pregnancy discrimination suit brought by the EEOC on behalf of four “[c]harging [p]arties and a group of similarly-situated pregnant employees” under McDonnell Douglas and rejecting analogies to pattern-or-practice cases). Thus, the mere mention that relief is sought on behalf of a “class” and the prayer for “class” relief add nothing as far as notice that a pattern-or-practice claim is being pursued.
The complaint here simply does not set forth sufficient facts to make the EEOC‘s claim for relief plausible. As the majority notes, “[T]he pleading requirements for
The majority seeks to excuse the EEOC‘s omission by saying that it may have relied on the complaint of the individual plaintiffs to allege a pattern or practice of discrimination. The operative complaint of the individual plaintiffs, the Second Amended Complaint, filed September 12, 2005, does contain allegations sufficient to state such a claim. But I know of no reason that the EEOC should be able to rely on this complaint rather than advising the court and other parties in straightforward fashion which claims brought by individual parties it intends to pursue. See 5A Charles Alan Wright et al., Federal Practice & Procedure § 1326 (3d ed. 2004) (“[R]eferences to prior allegations must be direct and explicit, in order to enable the responding party to ascertain the nature and extent of the incorporation.“)
Because the EEOC‘s complaint fails to state a pattern-or-practice claim, Cintas‘s motion was properly granted. The extensive analysis of the majority with respect to
The majority‘s treatment of the denial of the motion to amend, the discovery issues, the individual claims and, in part, the attorneys fees issue is premised on its ruling on the pattern-or-practice issue. Because I disagree with the majority‘s resolution of the pattern-or-practice issue, I might resolve some of the other issues differently. But it seems an unproductive use of judi-
Notes
Despite the absence of explicit pattern-or-practice language in the complaint, however, it strains credulity that Cintas was blind-sided at the scheduling conference by the EEOC‘s assertion that it would seek to prove that Cintas engaged in unlawful discrimination