In one of the EEOC’s most high profile cases, Chief Judge Loretta Preska of the U.S. District Court of the Southern District of New York issued a pair of decisions (here and here) yesterday in the case of EEOC v. Bloomberg L.P., 07 Civ. 8383 (S.D.N.Y. Sept. 9, 2013). When read together, Judge Preska’s decisions leaves the EEOC with a single count of pregnancy discrimination on behalf of a single individual – a far cry from the systemic pattern or practice pregnancy discrimination class action allegations that originally formed the basis of this high-profile lawsuit back in 2007. In addition to dismissing most all of the remaining claims, and taking the EEOC to task for its pre-lawsuit action (or, more appropriately, inaction), Judge Preska provided Bloomberg with leave to file an application for attorneys’ fees as the prevailing party in this dispute.
As we previously blogged here, in 2007, the EEOC accused Bloomberg of violating Title VII by engaging in a pattern or practice of discrimination against pregnant employees or those who recently returned from maternity leave. Bloomberg had 603 employees who were pregnant or took maternity leave between 2002 and 2009 – 78 of whom the EEOC claimed were victims of discrimination. In 2011, Judge Preska granted Bloomberg’s motion for summary judgment as to the EEOC’s class allegations, finding that it “cannot say that the EEOC has proffered evidence from which a fact-finder could conclude that Bloomberg engaged in a . . . practice of decreasing the pay, responsibility, or other terms and conditions of employment” of its alleged victims. In so doing, the Court took the EEOC to task on the very underpinnings of its case theory. The Court’s 2011 decision concluded that the EEOC’s case was so riddled with problems that Bloomberg should not have to face a trial as to the alleged pattern or practice of discrimination.
As its pattern or practice claims were dismissed, the EEOC sought to continue the action by asserting individual claims of pregnancy discrimination on behalf of twenty-nine non-intervening claimants as well as six additional Bloomberg employees who intervened in the lawsuit. Id. at 10. Bloomberg subsequently moved for summary judgment as to both the EEOC’s claims on behalf of the twenty-nine non-intervening Plaintiffs and the six intervening Plaintiffs. Id.
With respect to the non-intervening Plaintiffs, Judge Preska granted Bloomberg summary judgment, finding that the EEOC failed to engage in adequate pre-litigation activities, including investigating the claims of these individuals and attempting to resolve the alleged unlawful employment practice through conciliation. While noting that the Court’s role in assessing the EEOC’s conciliation efforts is modest and relying heavily on the congressional intent of Title VII, Judge Preska held that the role of a Court is not “inept” and is to ensure that the EEOC has provided sufficient notice to the employer of the natures of the charges against it so as to set the stage for fruitful, pre-litigation, conciliation discussions. Id. at 17-19.
With this background, Judge Preska determined that the EEOC wholly failed to satisfy its required pre-suit conciliation efforts given that it focused its efforts on its overly broad systemic claims while failing to provide Bloomberg with specific information regarding the facts and circumstances surrounding the individual claims it now sought to litigate. As such, Judge Preska held that Title VII “does not allow the EEOC to use class-wide claims…to conduct an end around the pre-litigation requirements that must be satisfied before bringing suit on behalf of individual claimants.” Id. at 20. In a striking blow to the EEOC’s “sue now, ask questions later tactics,” Judge Preska held that:
Allowing the EEOC to subvert its pre-litigation obligations with respect to individuals claims by yelling far and wide about class claims would undermine the statutory policy goal of encouraging conciliation. Thus, the Court holds that its prior filing that the EEOC satisfied its pre-litigation obligations with respect to a class-wide claim applies to that class-wide claim only and that it must look independently at whether the EEOC fulfilled its statutory pre-litigation requirements with respect to the individual claims upon which it purports to continue this litigation.
The EEOC may bring any claims reasonably related to the charge it investigated. But such a principle does not grant the EEOC authority to abdicate its statutory responsibility to provide sufficient notice and pursue a pre-suit resolution in good faith. The Court is not aware of any binding legal authority, and the EEOC has provided none, that allows the EEOC to do what it is attempting to do here—namely level broad accusations of class-wide discrimination to present Bloomberg with a moving target of prospective plaintiffs and, after unsuccessfully pursuing pattern-or-practice claims, substitute its own investigation with the fruits of discovery to identify which members of the class, none of whom were discussed specifically during conciliation, might have legitimate individual claims under Section 706. The EEOC’s conduct here blatantly contravenes Title VII’s emphasis on resolving disputes without resort to litigation and lands far and wide of any flexibility Title VII might provide with respect to pre-litigation conciliation requirements where both individual and class-wide claims are asserted and potential claimants are discovered throughout the course of discovery.
Id. at 20 & 23.
In reaching her decision, Judge Preska expressly adopted the decision of Chief Judge Linda Reade of the U.S. District Court of the Northern District of Iowa in EEOC v. CRST Van Expedited, Inc. (previously blogged about here and here) who dismissed similar pattern or practice claims also based on EEOC’s failure to comply with its pre-suit conciliation obligations. Id. at 27. As Judge Preska aptly held, “Congress surely did not intend that employers, even ones whose workplaces might be rife with [sex discrimination] face the moving target of allegedly aggrieved persons that [Bloomberg] faced in both the administrative and legal phases of this dispute.” Id. Therefore, Judge Preska held that, “as in CRST, the EEOC’s actions – or more appropriately inaction “foreclosed any possibility that the parties might settle all or some of this dispute without the expense of a federal lawsuit as Title VII prefers.” Id. at 28.
Having found that the EEOC failed to satisfy its pre-suit obligations, Judge Preska rejected the EEOC’s argument that the “preferred remedy” – and the one should she order here – is a stay of the case to allow the EEOC to engage in settlement discussions with Bloomberg now – six years after it filed the lawsuit. Id. Judge Preska flatly rejected this “preferred” approach, finding that, “where, as here, the EEOC completely abdicates its role in the administrative process, the appropriate remedy is to bar the EEOC from seeking relief on behalf of the Non-Interveners at trial and dismiss the EEOC’s Complaint.” Id. In yet another “zinger” to the EEOC’s tactics, Judge Preska held:
The Court does not impose this severe sanction lightly and recognizes that certain of the Non-Intervenor claims may be meritorious but now will never see the inside of a courtroom. However, the Court finds that allowing the EEOC to revisit conciliation at this stage of the case—after shirking its pre-litigation investigation responsibilities and spurning Bloomberg’s offer of conciliation and instead engaging in extensive discovery to develop the Non-Intervenor claims—already has and would further prejudice Bloomberg. Moreover, if such a sanction were not imposed, the Court, in turn, would be sanctioning a course of action that promotes litigation in contravention of Title VII’s emphasis on voluntary proceedings and informal conciliation.
Id. at 29.
Given that she dismissed the EEOC’s claims on behalf of all twenty-nine non-intervener plaintiffs, Judge Preska granted leave for Bloomberg to file an application for its attorneys’ fees as it is the prevailing party. Id. at 30. Given the litigation tactics the EEOC engaged in during this six year old case, one can reasonably expect Bloomberg’s fee application to be a big one.
In Judge Preska’s “other” decision issued yesterday in this case, she also granted (in a whopping 181 page decision) Bloomberg summary judgment as to most all of the claims brought on behalf of the six intervening Plaintiffs. Judge Preska fully dismissed the claims of five of the six intervening plaintiffs, leaving just a portion of one of the intervener plaintiff’s discrimination claims with respect to her 2006 demotion and compensation decrease.
The sum total of Judge Preska’s two decisions, when combined with her prior rulings in this case, whittled down this once massive, high-profile pattern or practice pregnancy discrimination case in which the EEOC originally requested more than $6 million per Charging party during conciliation to a shell of its former self and a rather large bill from Bloomberg that the EEOC will have to “pick up.”
Implication For Employers
As we have previously blogged several times – most recently here and here – the EEOC is actively pursuing the position that courts have no authority to review its investigations or conciliations. This decision is a big win for Bloomberg as well as all employers who have been forced to deal with the EEOC’s “sue now, ask questions later” tactics and should provide a measure of relief to those employers engaging with the EEOC in attempting to not only understand the basis of charges brought against them, but also the foundation for the EEOC’s conciliation demands.
Given the scope of its defeat, and the expected magnitude of the fee award that may be entered against it based on Judge Preska’s ruling, we expect that the EEOC may challenge all (or part) of Judge Preska’s ruling. Stay tuned!
Readers can also find this post on our Workplace Class Action blog here.