Equal Emp't Opportunity Comm'n v. Bass Pro Outdoor World, L. L.C.

865 F.3d 216 (Mem)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee

v.BASS PRO OUTDOOR WORLD, L.L.C.; Tracker Marine Retail, L.L.C., Defendants-Appellants

No. 15-20078

United States Court of Appeals, Fifth Circuit.

Filed April 28, 2017

James Mark Tucker, U.S. Equal Employment Opportunity Commission, Washington, DC, for Plaintiff-Appellee.

Michael Wayne Johnston, Attorney, Samuel M. Matchett, Esq., Jona Jene McCormick, Rebecca Cole Moore, King & Spalding, L.L.P., Atlanta, GA, James Patrick Sullivan, King & Spalding, L.L.P., Austin, TX, for Defendant-Appellant Bass Pro Outdoor World, L.L.C.

Michael Wayne Johnston, Attorney, Samuel M. Matchett, Esq., Jona Jene McCormick, Rebecca Cole Moore, King & Spalding, L.L.P., Atlanta, GA, for Defendant-Appellant Tracker Marine Retail, L.L.C.

Rae T. Vann, General Counsel, Norris, Tysse, Lampley & Lakis, L.L.P., Washington, DC, for Amicus Curiae Equal Employment Advisory Council.

Eric S. Dreiband, Jones Day, Washington, DC, for Amici Curiae Retail Litigation Center, Incorporated and Chamber of Commerce of the United States of America.

Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

PER CURIAM:

The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( Fed. R. App. P. 35 and 5th Cir. R. 35 ), the petition for rehearing en banc is DENIED. In the en banc poll, seven judges voted in favor of rehearing (Judges Jolly, Jones, Smith, Clement, Owen, Elrod, and Haynes), and seven judges voted against rehearing (Chief Judge Stewart and Judges Dennis, Prado, Southwick, Graves, Higginson, and Costa). Attached are (1) an opinion dissenting from the denial of rehearing en banc authored by Judge Jolly, joined by Judges Jones, Smith, Clement, Owen, and Elrod; (2) a responding opinion authored by Judge Higginbotham, joined by Judges Southwick and Higginson; and (3) an opinion dissenting from the denial of rehearing en banc authored by Judge Jones, joined by Judges Smith and Owen.

E. GRADY JOLLY, Circuit Judge, joined by JONES, SMITH, CLEMENT, OWEN, and ELROD, Circuit Judges, dissenting from the denial of rehearing en banc:

In this case of first impression in our circuit, the EEOC seeks to bring a "pattern or practice" case under both § 706 and § 707 of Title VII of the Civil Rights Act, as amended in 1991, asserting the violation of the rights of 50,000 applicants, and the entitlement of each to individualized compensatory and punitive damages. With collegial respect, the panel opinion circumvents the Supreme Court precedent in Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), dismisses our precedent in Allison v. Citgo Petroleum Corp. , 151 F.3d 402 (5th Cir. 1998), downplays critical manageability concerns, brushes away the complications of the Seventh Amendment, and excuses the statutory limitations of § 707—resulting in an expansion of the litigation powers of the EEOC beyond the precedents of this Court and the Act. Our Court, in a tie vote, has denied en banc consideration. I respectfully dissent.¹

I.

First, what this dispute with the panel opinion is not about. The dispute does not challenge the right of the EEOC to bring this mass "pattern or practice" suit under § 707. And it casts no doubt on the panel's finding that the EEOC's conciliation efforts were sufficient to meet the administrative prerequisites for bringing such a § 707 "pattern or practice" action. What is challenged is that the EEOC may maintain an action in this "pattern or practice" case under both or either § 706 or § 707 in order to claim individualized punitive and compensatory damages for each of the 50,000 persons making up the mass.

II.

The few relevant background facts to this appeal are as follows. As noted, there are around 50,000 alleged individual discriminatees on whose behalf the EEOC seeks to obtain compensatory and punitive damages. The "50,000" number is asserted in shotgun fashion, with no development or refinement of who or where the individuals are. Fifty thousand African-Americans and Hispanics unsuccessfully applied to Bass Pro nationwide over a ten-year period, the EEOC reasons, and thus, automatically, 50,000 people are said to be victims of individualized injuries, entitled to compensatory and punitive damages in one mass action.²

The EEOC, after a three-year investigation, could identify zero discriminatees or even potential discriminatees. Upon being pressed by the district court, the EEOC identified about 100, and later, about 200, of the 50,000 mass. In the course of the investigation, Bass Pro produced some 230,000 pages of documents. The EEOC conducted extensive interviews. Still, the EEOC identified only 200 discriminatees to the district court.

The district court, after halts and starts, allowed the EEOC to file a "pattern or practice" claim on behalf of the 50,000 claimants under § 706 of the Civil Rights Act seeking individualized compensatory and punitive damages. This interlocutory appeal followed. The panel affirmed.

III.

The Civil Rights Act of 1964 provides two methods pursuant to which the EEOC may file suit to remedy violations of the Act. First, the EEOC may bring an action under § 706 of the Act. In a § 706 suit, the Commission must first file a charge of discrimination on behalf of an individual (or individuals) and attempt to conciliate the dispute. If it is unable to do so, the Commission may proceed to file a civil action. See 42 U.S.C. § 2000e-5(f)(1).³ Second, the EEOC may bring a suit under § 707 of the Act. In a § 707 suit, the Commission, after conciliation attempts, may bring a suit against an entity that it believes has engaged in a "pattern or practice" of discrimination. See 42 U.S.C. § 2000e-6.⁴ Importantly, § 707 contains the words "pattern or practice of [discrimination]"; § 706 does not. And, importantly, in 1991, Congress amended § 706 to allow for compensatory and punitive damages, and the correspondent right to a jury trial. See 42 U.S.C. § 1981a(a)(1). Congress did not correspondingly amend § 707, which, by contrast, only provides for equitable relief when the EEOC is seeking to represent a mass.

IV.

This appeal presents a case of first impression in this circuit.⁵ The EEOC, for the first time, attempts to bring a mass "pattern or practice" claim pursuing the remedies specific to § 706: individual punitive and compensatory damages.

To the simple, underlying point of the several following pages: this "pattern or practice" case cannot be brought under § 706 or § 707 as to provide individualized compensatory and punitive damages for a mass of 50,000 persons. This is so for three reasons. First, the plain language and legislative history of the Civil Rights Act forbid § 706 "pattern or practice" suits, and the panel's contrary holding renders § 707 of the Act a meaningless appendage to Title VII and hence superfluous. Second, allowing pattern-or-practice suits for individualized compensatory and punitive damages poses insurmountable manageability concerns; our Court and the Supreme Court have addressed these concerns before and rejected such suits. Third, allowing pattern-or-practice suits for individualized compensatory and punitive damages for the 50,000 persons necessarily runs afoul of the Seventh Amendment; our Court has addressed these concerns before and held that such suits have prohibitive constitutional problems. This dissent addresses each of these flaws in the panel opinion in turn.

A.

First, the panel's opinion gives a blind pass to Title VII's statutory framework. In doing so, the panel renders § 707 meaningless and superfluous; the panel merges the two statutes, holding specifically that "the EEOC's Section 706 claim is a pattern or practice suit." Equal Employment Opportunity Commission v. Bass Pro Outdoor World, LLC , 826 F.3d 791, 805 (5th Cir.2016). The two statutes are reborn as one by the stroke of a judicial pen.

This boldness relies heavily on the Supreme Court's holding in General Telephone Co. of the Nw. v. Equal Employment Opportunity Comm'n , 446 U.S. 318, 323, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), which held that the EEOC may bring a mass litigation without being subject to Rule 23's requirements. The panel relies on General Telephone's unwillingness "to subject § 706(f)(1) actions to requirements that might disable the enforcement agency from advancing the public interest in the manner and to the extent contemplated by the statute," Bass Pro , 826 F.3d at 800 (citations and quotations omitted), to conclude that the panel must allow the EEOC to pursue a "pattern or practice" action using the Teamsters framework⁶ under § 706 for compensatory and punitive damages.

But both General Telephone and Teamsters were decided prior to the 1991 amendments to the Act. In 1980, individualized compensatory and punitive damages—and hence jury trials—were wholly unavailable to Title VII claimants, who could only claim equitable relief. The panel argues that Congress must have intended to do what plainly it did not do: incorporate these changes into both § 706 and § 707 because, according to the panel, Congress was "presumed to be aware of" the judicial interpretation, see Bass Pro , 826 F.3d at 800 (citations and quotations omitted), that is, that the Supreme Court, in General Telephone , had allowed a § 706 mass litigation to proceed without requiring Rule 23 certification. But neither Teamsters nor General Telephone gave any thought at all to the proper evidentiary framework for "pattern or practice" suits involving jury trials and punitive and compensatory damages.

The far more reliable reading of § 707 is that the "off-hand omission" urged by the panel was an intentional and intelligent choice. The legislative history of the 1991 amendments suggests that Congress did not envision the outcome that the panel suggests, and it expected the EEOC to continue,...