On January 11, 2013, in a rare sua sponte reversal, Judge Robert M. Dow, Jr. of the U.S. District Court for the Northern District of Illinois reconsidered his previous rulings and allowed the EEOC to pursue claims on behalf of unidentified class members about whom it pled no detailed factual allegations.
In the ruling, EEOC v. United Parcel Service, No. 09-5291 (N.D. Ill. Jan. 11, 2013), the Court found that the EEOC could fulfill its pleading requirements – by raising the prospect of relief above the speculative level – without naming or providing individualized facts about specific class members.
It remains to be seen, however, whether the EEOC’s claims on behalf of unidentified class members ultimately will prove viable. The EEOC not only failed to plead facts regarding its class members but also, during the course of briefing, admitted that it failed to identify or search for all potential victims prior to bringing suit.
The EEOC brought suit on behalf of a former UPS employee and other, unidentified class members alleging that UPS violated the Americans With Disabilities Act (“ADA”) by terminating employees following twelve-month leaves of absence.
UPS moved to dismiss the complaint, among other reasons, because the EEOC failed to plead any facts to demonstrate that the potential class members were qualified individuals under the ADA. Id. at 2. Judge Dow granted UPS’s motion to dismiss. The Court found the complaint “so threadbare, conclusory, and formulaic” that it did not permit the court to infer that the individuals were otherwise qualified to perform the essential functions of their jobs with or without accommodation. Id. at 3.
The Court granted the EEOC two additional opportunities to amend its complaint, but rejected both attempts after the EEOC failed to allege any additional, specific facts regarding the unidentified class members. Id. at 4-5.
The EEOC asked the Court to certify the matter for appeal. Id. at 1. In taking the EEOC’s request under advisement, the Court sua sponte reconsidered its decisions to dismiss the EEOC’s complaint and reversed its earlier rulings. Id.
The Court’s Opinion
The Court considered whether the EEOC’s allegations were sufficient to raise the possibility of relief above the “speculative level” for the unidentified class members. The Court noted that, in a case involving a single employee, EEOC must include a level of specificity regarding the asserted disability and allege that the individual is qualified to perform the essential functions of his or her job with or without accommodation. Id. at 9. When bringing broader cases on behalf of a class of aggrieved individuals, however, the Courts noted that generally the EEOC has been allowed to pursue complaints that do not name – or plead detailed facts specific to – the unidentified individuals. Id. at 10.
The Court held that, rather than plead detailed factual allegations supporting the claim of every potential class member, the EEOC merely must plead “factual content” that allows the Court to reasonably infer that UPS violated provisions of the ADA as to unnamed parties. Id. at 11. The Court found that the EEOC’s allegations met that standard. The Court reasoned that it could infer that UPS discriminated against other “qualified individuals” when it enforced its leave policy. Id.
During the course of briefing, the EEOC conceded that it did not identify or search for all potential victims of discrimination or learn the identities of all disabled employees affected by UPS’s leave policy prior to bringing suit (and assured the Court that it would do so “during the discovery process”). Id. at 4. The Court noted that the EEOC’s “ready admission” that it made little, if any, effort to evaluate the extent to which other individuals might have meritorious allegations gave it “some pause.” Citing EEOC v. CRST Van Expedited, 679 F.3d 657 (8th Cir. 2012) (discussed here and here), the Court observed that the EEOC is required to investigate and conciliate claims before filing a lawsuit, and at least one other court has upheld dismissal where the EEOC failed to do so. (Id.)
Nevertheless, the Court found that, at this early stage of the lawsuit, it had to defer to the EEOC’s allegation that it fulfilled “all conditions precedent” to the institution of the lawsuit. Id. at 12.
Implications Of The Ruling
Judge Dow’s sua sponte reversal is disappointing for employers who end up victims of the EEOC’s “sue first, ask questions later” litigation tactics. Under the Court’s ruling, the EEOC need allege few facts about unidentified class members to clear its pleading hurdles. This makes it relatively easy for the EEOC to increase its leverage pre-suit and post-suit when discussing possible settlement of litigation. Because the case remains at the pleading stage, however, Judge Dow did not have the opportunity to consider the merits of the EEOC’s litigation strategy. In light of the EEOC’s concessions, we suspect that the Court soon will consider whether the EEOC’s failure to identify or investigate the claims of absent class members dooms its class case. Stay tuned.
Readers can also find this post on our Workplace Class Action blog here.