By Gerald L. Maatman, Jr., Chris DeGroff, and Brian Wong

On the heels of its resounding loss on May 8, 2012 at the hands of an Eighth Circuit panel in EEOC v. CRST Van Expedited, Inc., Case Nos. 09-3764, 09-3765 & 10-1682 (8th Cir. May 8, 2012), the EEOC has renewed its petition for rehearing – again requesting that the full U.S. Court of Appeals for the Eighth Circuit review the panel’s opinion and judgment – just one day after its loss.

We blogged about the implications of the Eighth Circuit’s May 8 decision and how the ruling in EEOC v. CRST Van Expedited, Inc. is a significant defeat for the Commission’s tactical approach to systemic litigation. Yesterday’s salvo from the EEOC demonstrates how it views the stakes and that it will not be going down without a fight, and likely a shot at a petition for certiorari to the U.S. Supreme Court should the Eighth Circuit reject the Commission’s bid for en banc review.

In a blow to the EEOC’s current investigation and conciliation tactics, a panel of the Eighth Circuit held on May 8 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. The May 8 opinion closely tracks the Eighth Circuit’s earlier February 22, 2012 opinion, which it vacated just one day before. Our prior analysis of these opinions can be found here and here.

After an invitation by the court clerk either to file a new petition for rehearing en banc or to rely on its previous April 9, 2012 rehearing petition, the EEOC opted to notify the Eighth Circuit on May 9 that it wished to apply for rehearing by relying on its prior petition.

With the future of its systemic litigation tactics hanging in the balance, the EEOC doubtless will exhaust every available avenue to undermine the Eighth Circuit’s decision and head off similar outcomes in other jurisdictions. Stay tuned.