As the U.S. Equal Employment Opportunity Commission this week can attest, what one hand giveth, the other may taketh away.
Just one day after vacating its already well known February 22, 2012 opinion and judgment in EEOC v. CRST Van Expedited, Inc., 670 F.3d 897 (8th Cir. 2012), the U.S. Court of Appeals for the Eighth Circuit issued an opinion on Tuesday, May 8, 2012 – in EEOC v. CRST Van Expedited, Inc., Case Nos. 09-3764, 09-3765 & 10-1682 (8th Cir. May 8, 2012) – containing the same resounding criticism of the EEOC’s “sue first, ask questions later” tactics previously set forth in its vacated February 22 opinion.
Following the Eighth Circuit’s February 22 opinion and judgment, in which a three-judge panel affirmed in part and reversed in part the dismissal by the U.S. District Court for the Northern District of Iowa of the EEOC’s sexual harassment action against CRST on behalf of scores of female truck driver trainees – in EEOC v. CRST Van Expedited, Inc., 257 F.R.D. 513 (N.D. Iowa 2010) – the EEOC petitioned for reconsideration of the 8th Circuit’s ruling and requested review by the Eighth Circuit’s full panel of eleven judges. On Monday, May 7, 2012, the Eighth Circuit granted the EEOC’s petition and vacated its February 22 opinion and judgment.
Key Holdings Of The Eighth Circuit
Any hope the EEOC may have harbored for a change of heart by the Eighth Circuit proved short-lived. The Eighth Circuit’s May 8 opinion leaves undisturbed its prior holding that the EEOC must engage in pre-lawsuit investigation and good-faith conciliation of each claim it intends to litigate in court under § 706 of Title VII, and that the EEOC may not use discovery in a later lawsuit as a fishing expedition to uncover additional violations. Id. at 19-21. Our recent analysis of the Eighth Circuit’s February 22 holding on this issue, which remains unchanged in this week’s opinion, can be found here.
Notably, the Eighth Circuit once again emphasized the impropriety of the EEOC’s litigation tactics:
There was a clear and present danger that this case would drag on for years as the EEOC conducted wide-ranging discovery and continued to identify allegedly aggrieved persons. The EEOC’s litigation strategy was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial.
Id. at 22 (internal quotation marks and citations omitted).
As before, the Eighth Circuit affirmed the district court’s dismissal of nearly all the EEOC’s remaining claims, including those dismissed due to the EEOC’s failures to investigate and conciliate. Id. at 53-54.
Also as before, the Eighth Circuit revived the EEOC’s claims as to only two female claimants. In particular, the Eighth Circuit reversed the district court’s grant of summary judgment on the EEOC’s claims as to one woman whose underlying claims were estopped for failure to disclose the claims in bankruptcy proceedings, and as to another because a genuine issue of material fact existed regarding the severity or pervasiveness of the harassment she alleged. Id. at 53-54. That is little solace to the Commission, for the remainder of the decision strikes at the heart of its systemic litigation tactics.
The Eighth Circuit’s May 8 order also included a strongly-worded dissent by Judge Diana Murphy, which tracked her position in her prior dissent to the February 22 order, including her concern that the majority’s holding would reward employers for withholding information from the EEOC prior to litigation. Id. at 54.
Implications Of The Eighth Circuit’s Ruling
The February 22 ruling received widespread media attention. The EEOC’s general counsel P. David Lopez told the Associated Press, “[w]e are an agency with limited resources already, and [CRST ] is something that, if it stands, would make it even more challenging for us to address and vindicate discriminatory violations in the Eighth Circuit.” Our comments were also juxtaposed against Mr. Lopez in the same AP article, as well as in articles run by Inside Counsel and the ABA Journal.
With the new Eighth Circuit ruling on May 8, it would appear the EEOC’s worst-case scenario has been realized. It is our wager that the EEOC will now lodge a petition for certiorari with the U.S. Supreme Court to challenge the decision.
The holding in EEOC v. CRST is a very positive development for employers faced with the prospect of litigating against the EEOC, and will significantly affect the EEOC’s strategic decisions and processes both before and during litigation. Specifically, employers now have a strong argument that the EEOC no longer has the luxury of using discovery in litigation to identify new claims and claimants in the Eighth Circuit and beyond.