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EEOC v. Cintas Corp., No. 10-2629 (6th Cir. Nov. 9, 2012)

The Sixth Circuit, in a closely-watched EEOC case, reverses - in a 2-1 decision - judgment on the pleadings and summary judgment in a systemic Title VII sex discrimination case, challenging the company's alleged failure to fire women drivers. The panel finds that the EEOC stated a claim for pattern-or-practice liability, and that the district court erred on a host of rulings.

EEOC v. Cintas Corp., No. 10-2629 (6th Cir. Nov. 9, 2012): Cintas hires truck-driver/sales people from coast-to-coast to deliver uniforms and take customers' orders. The EEOC (and, in a different case, a group of private plaintiffs) brought a Title VII action to challenge the company's failure to hire women as drivers in Michigan.

The district court dismissed the case on the grounds that the EEOC did not properly allege a pattern-or-practice case, that the named individual plaintiffs could not prove discrimination against themselves personally on a McDonnell Douglas theory and that the EEOC failed to conflate the claims as a prerequisite to filing the lawsuit.

The Sixth Circuit reverses. It initially holds that the district court erred in holding that the complaint did not support a systemic claim of Title VII pattern-or-practice liability. As panel majority observes, there is significant difference between proving individual claims of discrimination and proving a pattern-or-practice:

"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 . . . .  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."

The panel majority holds that while the agency plead its claim under § 706 of Title VII, instead of the express "pattern-or-practice" provisions of § 707, the EEOC did not thereby plead itself out of court. "[T]he exclusion of pattern-or-practice language from § 706 does not mean that the EEOC may utilize a pattern-or-practice theory only when bringing suit under § 707. Instead, it suggests that the inclusion of the language in § 707 simply means that the scope of the EEOC's authority to bring suit is more limited when it acts pursuant to § 707."

The panel majority also holds that it is unnecessary for the EEOC to expressly invoke the Teamsters pattern-or-practice method of proof in the complaint to preserve it for litigation. Citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the panel majority holds that:

"so long as a complaint provides an adequate factual basis for a Title VII discrimination claim, it satisfies the pleading requirements of Federal Rule of Civil Procedure 8(a)(2) . . . . In this regard, the pleading requirements for Title VII claims are no different than those for other claims; they are subject to the same requirement of setting forth 'enough facts to state a claim to relief that is plausible on its face.' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)."

The panel majority specifically notes that the Swierkiewicz decision remains good law after Twombly and Iqbal. While observing that the amended complaint was not a "model of good lawyering," the panel observes that it is sufficient on its face to withstand dismissal; the panel remands, with a direction that district court reconsider its decision denying the EEOC leave to file a second amended complaint.

In light of its decision on pattern-or-practice, the panel majority vacates the summary judgment decisions on the individual claims, for reconsideration under a "pattern-or-practice" framework. The panel notes, in particular, that Cintas's defense of "after-acquired" evidence as to each individual would not prevent the entry of liability against the employer, but only limit their remedies.

The panel majority also remands for reconsideration (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. On the final issue, the panel majority rejects application of the "apex doctrine" to protect a senior executive from testifying about relevant matters, where there was not record that it would be especially inconvenient for him to do so.

The full panel (with the third judge concurring) holds that the EEOC met its precondition to conciliate with Cintas before filing:

"[I]t 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 Title VII."). Although the EEOC did not explicitly use the 'females as a class' language in the proposed conciliation agreement, the agreement indicated that the EEOC sought class-based remedies by requesting relief for 'other similarly situated qualified female applicants who sought employment with [Cintas].' R. 836-41 (Proposed Conciliation Agreement at 3, 4). Given that these documents were provided to Cintas on the same day, there is no basis for concluding that Cintas was unaware that the EEOC had investigated and was seeking to conciliate class-wide claims."

Finally, the panel reverses an award of attorney fees and costs for Cintas. "Because we reverse the district court's determination that the EEOC did not comply with Title VII's administrative prerequisites to suit-the primary basis for the district court's award of attorney fees-we vacate the order granting attorney fees as well. This result is also mandated in recognition that, in view of our rulings, Cintas is no longer a prevailing party." The panel goes on to hold that even if it had not reversed the judgment, it would have found that the fee award was an abuse of direction.

In a partial concurrence and dissent, Judge Gibbons would have held that the EEOC's First Amended Complaint forfeited the pattern-or-practice claim by not expressly pleading it.

"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."

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