IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________ No. 03-10719 _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEMCO AEROPLEX, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Northern District of Alabama Southern Division _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 EEOC v. Pemco Aeroplex, Inc., No. 03-10719 CERTIFICATE OF INTERESTED PERSONS In accordance with Eleventh Circuit Rules 26.1-1, I certify that the following persons or entities have an interest in the outcome of this case: The Honorable William M. Acker, U.S. District Judge, N.D. Ala. Mitchell G. Allen, Attorney for Defendant. Naomi Hilton Archer, Senior Trial Attorney, EEOC. Vincent J. Blackwood, Associate General Counsel, EEOC. Stephen E. Brown, Attorney for Defendant. Mildred Byrd, Supervisory Trial Attorney, EEOC. Equal Employment Opportunity Commission, Plaintiff-Appellant. Charles Guerrier, Regional Attorney, EEOC. Nicholas M. Inzeo, Acting Deputy General Counsel, EEOC. Jeffrey A. Lee, Attorney for Defendant. Maynard, Cooper & Gale, P.C., Attorneys for Defendant. Pemco Aeroplex, Inc., Defendant-Appellee. Philip B. Sklover, Assistant General Counsel, EEOC. Barbara L. Sloan, Attorney, EEOC. Under FRAP Rule 26.1, the Equal Employment Opportunity Commission, an agency of the federal government, is not required to file a corporate disclosure statement. _______________________________ Barbara L. Sloan STATEMENT REGARDING ORAL ARGUMENT The Commission believes that oral argument would assist the Court in reviewing the issues presented in this appeal. The Commission is appealing from an order dismissing its Title VII enforcement action in light of the adverse judgment in a narrower private suit brought by some of the defendant’s employees under 42 U.S.C. § 1981 (the “Thomas” action). In dismissing the suit, the district court held that the Commission is (or should be) bound by that judgment even though the Commission’s suit covers employees who were not part of the private suit and the district court twice denied the Commission’s motion to consolidate its case with the Thomas action. This ruling, if allowed to stand, would seriously undermine the Commission’s statutory authority to enforce Title VII and other federal anti-discrimination statutes. TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i STATEMENT REGARDING ORAL ARGUMENT ii TABLE OF CONTENTS iii TABLE OF AUTHORITIES v STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 1 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings 2 2. Statement of Facts 2 3. District Court’s Decision 7 STANDARD OF REVIEW 10 SUMMARY OF ARGUMENT 11 ARGUMENT THE EEOC IS NOT PRECLUDED FROM BRINGING A TITLE VII ENFORCEMENT ACTION BY A PRIOR JUDGMENT IN A PRIVATE ACTION IN WHICH THE EEOC WAS NOT A PARTY. 15 A. There Is No Privity Between The EEOC and The Thomas Plaintiffs. 16 B. Even if The EEOC Were in Privity With the Thomas Plaintiffs, This Action Would Not Be Precluded Because of the Differences in the Claims in the Two Cases. 34 C. Logistical Problems Cannot Justify Dismissal of the EEOC’s Action. 37 CONCLUSION 40 CERTIFICATE OF COMPLIANCE 41 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir. 1975) 30 Becherer v. Merrill Lynch, Pierce, Fenner & Smith, 193 F.3d 415 (6th Cir. 1999) 39 Benson & Ford v. Wanda Petroleum, 833 F.2d 1172 (5th Cir. 1987) 29 Bonner v. City of Prichard, 661 F.2d 1201 (11th Cir. 1981) 17 CSX Transport v. Brotherhood of Maintenance of Way Employees, 327 F.3d 1309 (11th Cir. 2003) 30 Citibank, N.A. v. Data Lease Finance Corp., 904 F.2d 1498 (11th Cir. 1990) 22 Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984) 35 Dills v. City of Marietta, Ga., 674 F.2d 1377 (11th Cir. 1982) 28 EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001) 38 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) 22 EEOC v. Harris Chernin, 10 F.3d 1286 (7th Cir. 1993) 22 EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975) 21, 23 EEOC v. Kimberly Clark Corp., 511 F.2d 1352 (6th Cir. 1975) 22 EEOC v. Waffle House, 534 U.S. 279 (2002) 20-21, 26 Empire Fire & Marine Insurance Co. v. J. Transport, 880 F.2d 1291 (11th Cir. 1989) 35 Falcon v. General Telephone Co. of the South West, 457 U.S. 147 (1982) 35 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) 19, 27-28, 33 Hansberry v. Lee, 311 U.S. 32 (1940) 16 Herman v. South Carolina National Bank, 140 F.2d 1413 (11th Cir. 1998) 18 In re Bemis, 279 F.3d 419 (7th Cir. 2002) 19 Israel Discount Bank v. Entin, 951 F.2d 311 (11th Cir. 1991) 11 Jaffree v. Wallace, 837 F.2d 1461 (11th Cir. 1988) 27-28 Jones v. Preuit & Mauldin, 876 F.2d 1480 (11th Cir. 1989) 36 Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955) 22 Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731 (9th Cir. 1984) 31 Mann v. City of Albany, Ga., 883 F.2d 999 (5th Cir. 1989) 28 Martin v. Wilks, 490 U.S. 755 (1989) 16 Mesa Petroleum Co. v. Coniglio, 787 F.2d 1484 (11th Cir. 1986) 27 Montana v. United States, 440 U.S. 147 (1979) 15, 23-24, 34, 36 Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir. 1999) 38 NAACP v. City of Evergreen, Ala., 693 F.2d 1367 (11th Cir. 1982) 38 NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1990) 29-31 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) 10, 34 New Orleans Steamship Assn v. EEOC, 680 F.2d 23 (5th Cir. 1982) 22 Perez v. Volvo Car Corp., 247 F.3d 303 (1st Cir. 2001) 25 Pollard v. Cockrell, 578 F.2d 1002 (5th Cir. 1978) 28, 30 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) 11 Richards v. Jefferson County, Ala., 517 U.S. 793 (1996) 16-17, 31-32 Riddle v. Cerro Wire & Cable Group, 902 F.2d 918 (11th Cir. 1990) 27, 28 Schnell v. Peter Eckrich & Sons, 365 U.S. 260 (1961) 24 Secretary of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986) 18 Shield v. Fort James Corp., 305 F.3d 1280 (11th Cir. 2002) 36 South Central Bell Telephone Co. v. Alabama, 526 U.S. 160 (1999) 31-32 Southwest Airlines v. Texas Int’l Airlines, 546 F.2d 84 (5th Cir. 1977) 17 Strickland v. Water Works & Sewer Board, 239 F.3d 1199 (11th Cir. 2001) 1 Teamsters v. United States, 431 U.S. 324 (1977) 39 Tice v. American Airlines, 162 F.3d 966 (7th Cir. 1999) 28, 33, 39 United States v. East Baton Rouge Parish School Board, 594 F.2d 56 (5th Cir. 1979) 19, 27 United States v. Mississippi Dept of Public Safety, 321 F.3d 495 (5th Cir. 2003) 20 Watson v. Blue Circle, 324 F.3d 1252 (11th Cir. 2003) 36 STATUTES 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 28 U.S.C. § 1345 1 42 U.S.C. § 1981 2, 3, 9, 15 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. passim 42 U.S.C. § 2000e-5(f)(3) 1 Fed. Rule of Civil Procedure 56 11 OTHER AUTHORITY Restatement (Second) of Judgments § 39 24 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________ No. 03-10719 _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEMCO AEROPLEX, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Northern District of Alabama _______________________________________________ STATEMENT OF JURISDICTION This is an enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 2000e-5(f)(3). Final judgment was entered in the district court on December 13, 2002. Docket entry number (“R.”)61. The Equal Employment Opportunity Commission filed a timely notice of appeal on February 10, 2003. R.62. This Court has jurisdiction over the appeal under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the EEOC may proceed with a Title VII enforcement action alleging company-wide racial harassment notwithstanding adverse judgments in an action brought by a number of individuals alleging racial harassment by the same defendant. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a judgment for defendant in a Title VII enforcement action brought by the Equal Employment Opportunity Commission alleging that defendant maintained a racially hostile work environment at its Birmingham, Alabama, location through 1998. The EEOC filed suit on September 28, 2000, in the Northern District of Alabama. R.1. On October 12, 2000, and February 15, 2002, the EEOC moved to consolidate its case with a private action brought by 36 employees under 42 U.S.C. § 1981. R.2, 15. Defendant opposed consolidation. R.6, 16. The district court denied the motions except for purposes of discovery. R.60 (Memorandum Order (“Mem.”) 1); R.7 (1st Consolidation Order), R.17 (2d Consolidation Order). After judgment was entered in the private case, defendant moved for summary judgment in this case, arguing that it was barred by res judicata. R.51. On December 13, 2002, the district court granted defendant’s motion. R.60. The EEOC filed a timely notice of appeal on February 10, 2003. R.62. 2. Statement of Facts While investigating multiple charges of race discrimination at Pemco Aeroplex, a facility specializing in the maintenance and repair of certain military airplanes, the EEOC uncovered evidence of nooses, persistent racial graffiti including the word “nigger” in rest rooms and other locations throughout the plant, repeated racial slurs by coworkers and even some supervisors, and other race-related conduct dating back to at least the late 1980s. Cf. R.2 (EEOC’s 1st Consolidation Motion, Attachment). Accordingly, after conciliation efforts failed, the EEOC brought this Title VII enforcement action in September 2000 alleging that the company maintained a racially hostile work environment at its Birmingham location and seeking relief for all of the company’s 200 or more African-American employees who were affected by the practice. R.1 (Complaint). The case was assigned to Judge William Acker, Jr. Judge Acker was also presiding over a suit filed on December 9, 1999, by 36 African-American employees alleging that Pemco violated 42 U.S.C. § 1981 by subjecting them to racial harassment and other race discrimination at the Birmingham location. See docket sheet in Thomas, et al. v. Pemco Aeroplex, No. 99-CV-3280-S (N.D. Ala.), available at http//pacer.alnd.uscourts.gov/dc/cgi-bin; see also Exhibit A to EEOC’s Motion for Judicial Notice (filed June 30, 2003). Although Thomas was initially brought as a class action (R.2, Attachment (Thomas complaint)), the plaintiffs withdrew their class allegation after Pemco opposed certification (Thomas docket numbers (“Thomas ##”) 22-24), and the case proceeded as a suit by “36 individuals.” R.6 (Def’s Response to EEOC’s 1st Consolidation Motion at 4). In October 2000, the EEOC moved to consolidate the two suits, noting that they would involve the same witnesses and issues, and raise “common questions of law and fact.” R.2 (EEOC’s 1st Consolidation Motion at 1-2). Pemco strenuously opposed the motion, arguing that the suits were actually “substantially different” and, so, consolidation would cause the company “extreme prejudice.” R.6 (Def’s Response to EEOC’s 1st Consolidation Motion at 1-2). In particular, the company stressed that, whereas EEOC’s action “involves only one (1) substantive claim – a hostile work environment claim under Title VII,” in the Thomas suit, there were “thirty-six (36) individual Plaintiffs, each of whose case must stand on its own.” Id. at 3, 5. The district court granted the EEOC’s motion “to the extent that discovery undertaken in either case shall be, to the extent relevant, admissible in the other case.” However, the court denied, without explanation, the request to consolidate the cases for trial. R.7. In February 2002, after discovery in the private suit was complete, the EEOC again moved to consolidate the suits for trial.1 In its motion, the EEOC stated that it was willing to forego the opportunity to conduct more discovery in order to try the two cases together. R.15 (EEOC’s 2d Consolidation Motion at 6). Pemco, however, again adamantly opposed the motion. Describing the private suit as “312 individual cases tried together,” each of which “must stand on its own merits,” the company contrasted that with EEOC’s “obviously much broader” suit which “alleges class-wide discrimination” and does not focus on “any particular employee[’s]” being subjected to a hostile work environment. Thus, the company argued, “proof that others have experienced objectionable conduct is the heart of [EEOC’s] case whereas it could be totally irrelevant (not to mention objectionable and prejudicial)” in Thomas. R.16 (Response to EEOC’s 2d Consolidation Motion at 3-4) (adding that evidence that a non-Thomas employee “had a racial slur directed at him or her would be admissible [in EEOC’s suit] but likely not . . . in [Thomas] unless a [Thomas] plaintiff . . . overheard the comment”). Again, the court denied EEOC’s motion without explanation. R.17. In April 2002, nine plaintiffs including the original lead plaintiff, Thomas Burnes, accepted offers of judgment from Pemco. See Thomas ## 157-64, 166. The remaining 22 plaintiffs went to trial in June. An EEOC attorney was present in the courtroom during approximately half of the trial but did not proffer evidence, examine witnesses or even sit at counsel table. R.53 (SJ Response, Ex.A (Archer Aff. ¶¶ 5-6)). At the close of the evidence, the jury was instructed that, although the parties had been permitted to introduce evidence of events occurring up to ten years before the suit was filed on December 9, 1999, the applicable “time frame” for liability and damages extended only from “December 9, 1997, until the last witness testified.” See June 26-28, 2002, Trial Transcript in Thomas, et al. v. Pemco Aeroplex, CV-99-AR-3280-S, at 19, Exhibit B to EEOC’s Motion for Judicial Notice (filed June 30, 2003). The jury was not asked to determine whether a racially hostile work environment existed at Pemco during that time frame. Rather, as to each plaintiff, the jury was asked only whether that individual had been “subjected to a hostile or abusive work environment because of his race”; to that narrow question, in each case, the jury answered “no.” Thomas ## 226-47; see also Trial Transcript at 19, 39-43 (explaining special interrogatories); id. at 56-60 (reading 22 separate verdicts). Judgment was then entered against the 22 plaintiffs who went to trial, and against Pemco for the plaintiffs who had accepted offers of judgment. Thomas ## 263, 264. No appeal was taken. Thereafter, Pemco moved for summary judgment in this suit, arguing that it was barred, as res judicata, in light of the adverse jury verdicts in the Thomas suit. Contradicting the arguments it had made in opposing consolidation, the company now asserted that EEOC’s suit and the Thomas suit presented the same issue -- that is, “whether a racially hostile work environment pervaded the work atmosphere at Pemco.” R.51 (SJ Memorandum at 3-5). The company asserted (without quoting or attaching the special interrogatories or verdict forms) that the jury specifically found that no such atmosphere existed. See id. at 1. The company argued that the EEOC was in privity with the 22 plaintiffs who went to trial because, according to the company, EEOC attorneys attended the trial, participated in joint discovery and conferred with plaintiffs’ counsel during the pendency of the suit. Id. See also R.56 (Reply at 4) (adding, without support, that the “Court’s [jury] charge . . . clearly informed the jury that liability could be determined and damages could be awarded based on any events that occurred after June 3, 1992"). 3. District Court Decision The district court granted Pemco’s motion. Rather than “engage in an academic discussion of the nice distinctions between issue preclusion and claim preclusion,” the court proceeded from the “broad assumption” that “questions of disputed fact that have been fully and fairly tried between the same parties or their privies in a case in which a final resolution has been reached by judgment cannot, in the name of good sense and judicial economy, be tried again.” Mem. 2-3. According to the court, the issues and evidence in EEOC’s suit were “the same” as those in the private suit. Mem. 1. Indeed, the “core factual dispute,” that is, whether “a pervasively hostile racial environment existed at Pemco during the relevant time period was,” in the court’s view, “tried to the hilt in Thomas.” Id. at 4. According to the court, the Thomas jury “found [in special interrogatories] that there had been no racially hostile environment at Pemco.” Id. at 2. Thus, the court stated, the “issue boils down to whether or not the EEOC and the Pemco employees and former employees it now undertakes to represent are in sufficient privity with the plaintiffs in Thomas” to preclude further litigation of EEOC’s suit. Mem. 3. Without expressly finding privity, the court noted that EEOC had the opportunity to participate in discovery in Thomas and that counsel for EEOC “with some frequency” sat in the courtroom during the Thomas trial as “an alert and interested observer.” Id. Further, the court noted that EEOC did not rule out the possibility that it could seek relief for the Thomas plaintiffs “despite the indisputable fact that [they] are foreclosed by the final judgments entered against them or in their favor.” Id. at 3-4. The court then opined that “the issue of preclusion would be only slightly less difficult” if EEOC had conceded that it could not get relief for the Thomas plaintiffs, but “when the EEOC insists that it represents all of Pemco’s black employees, past and present, including the Thomas plaintiffs, the EEOC more loudly invites the application of a doctrine of preclusion.” Id. at 6. The court focused heavily on the sheer size of the EEOC’s suit, alleging discrimination against all of Pemco’s African-American employees. The court explained that it had refused to consolidate the two cases for trial because of what it viewed as “the severe logistical problems in managing a trial of the anticipated size of the cases if tried together.” Mem. 1. Although the EEOC had suggested bifurcating the trial into liability and relief stages, the court stated that it would need to try “200 times” not only the amount of injury but also proximate causation. Id. at 5 (second trial would mean “the overwhelming over-exploitation of judicial resources”). Noting that Pemco could as easily have had 2,000 as 200 black employees, the court stated, “After having recently tried 22 discrete claims to a jury, it boggles the court’s mind to think of trying 200 individual claims, much less 2,000.” Id. at 6. The court acknowledged that, had the Thomas plaintiffs prevailed, it would have had to “deal with the question of fashioning appropriate relief” for all the employees covered by EEOC’s suit. Id. at 7. Since the jury “found that no racially harassing environment existed at Pemco,” however, “EEOC is, or should be, bound by that finding.” Id. The court rejected EEOC’s contention that “it has a special status, and that by virtue of its statutory mandate it cannot be precluded by an adjudication in another case in which it was not a formal party” because “it represents a larger public interest.” Mem. 6. The court reasoned, “Carrying this idea to its logical or illogical conclusion, the EEOC’s case could proceed even if the named plaintiffs in Thomas had included every black employee and former black employee of Pemco.” Id. The court could “not find any public interest in such an outlandish expenditure of time and effort.” Id. at 6-7. The court also rejected EEOC’s argument that, in light of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the applicable time frame for liability and damages for the alleged hostile work environment in EEOC’s case would exceed the liability period in Thomas. Due to the “happy accident” that the decision “came down” during the Thomas trial, the court explained, Morgan “was actually raised as a guide by th[e] court.” Mem. 4. The jury “hear[d] evidence of events that took place long before some of the 36 plaintiffs were even employed by Pemco,” and earlier events were “too remote for judicial inquiry.” Id. STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1203-04 (11th Cir. 2001). Summary judgment is appropriate only when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000) (Rule 50). Whether a suit is barred by res judicata is a legal determination, subject to de novo review. Israel Discount Bank v. Entin, 951 F.2d 311, 314 (11th Cir. 1991). SUMMARY OF ARGUMENT The district court erroneously held that the EEOC is precluded from litigating this Title VII enforcement action alleging wide-spread racial harassment of African-American employees at Pemco because a jury rejected the individual harassment claims of 22 Pemco employees in Thomas v. Pemco, a private suit to which the EEOC was not a party. As a nonparty to the Thomas suit, the EEOC can be precluded – whether by res judicata or collateral estoppel – only if it was in privity with the plaintiffs in that action. There is no basis for finding that the EEOC was in privity with the Thomas plaintiffs here. The relationship between the federal government and private plaintiffs suing under a federal statute is not sufficiently close to constitute privity since the government has an independent interest in law enforcement which private parties do not share. The EEOC is authorized by Title VII to bring its own claim, which is separate from the claims of private individuals. While it may seek victim-specific relief, the EEOC’s primary role is to enforce the law. Therefore, absent special circumstances, the EEOC is not barred by res judicata from bringing suit to enforce Title VII merely because private litigants have previously brought suit challenging the same conduct. The government can be bound by the judgment in a prior action in which it was not a party if it effectively controlled the earlier action. There is no basis for concluding that the EEOC controlled the Thomas litigation. Although the cases were consolidated for discovery purposes, the EEOC did not control the filing of the private suit; the choice, preparation or presentation of witnesses or evidence at trial; legal matters such as the jury instructions; or plaintiffs’ decision not to appeal. Not only did the EEOC not attempt to direct the litigation from behind the scenes, it unsuccessfully sought – over Pemco’s strenuous objections – to have its suit consolidated with the private case for trial. Even if there were privity, res judicata and collateral estoppel still could not be applied to bar EEOC’s suit because of the nature of the claims at issue in the two suits. Res judicata precludes relitigation of the same claim, but the EEOC’s claim is not only different but substantially broader than the individual claims in Thomas. Where, as here, the allegations in an EEOC enforcement action are broader than those in a private suit based on the same charge, courts including this one have uniformly held that EEOC’s suit is not precluded by resolution of the private suit. Collateral estoppel precludes relitigation of issues “actually and necessarily decided” in an earlier action, but the central issue in EEOC’s suit -- whether a racially hostile work environment existed at Pemco during the relevant time frame -- was neither actually nor necessarily decided in Thomas. The special interrogatories, verdicts and even the docket sheet all confirm that the Thomas jury actually decided only the narrow question of whether each individual Thomas plaintiff “was subjected to a hostile or abusive work environment because of race.” Since that finding is not necessarily inconsistent with a finding that other Pemco employees were exposed to a racially hostile work environment, the verdicts would not bar the EEOC from proceeding with this action. In holding that the EEOC’s suit is barred, the district court did not engage in an analysis of preclusion law, but instead simply stated that the EEOC “is or should be bound” by the Thomas verdicts because a second trial of the matter would be a waste of public resources. However, the court’s suggestion that EEOC’s claim is somehow derivative of the private claims is simply wrong. As the Supreme Court recently reaffirmed, EEOC’s Title VII claims are “not derivative” of the claims of private plaintiffs. Rather, the statute “clearly makes the EEOC master of its own case,” and “it is [EEOC’s] province – not that of the court – to determine whether public resources should be committed” to a particular discrimination claim. The district court made no secret of the fact that it was granting summary judgment in part because it did not want to try a second suit involving 200 or more potential victims. However, trial of the EEOC’s suit need not mean “trying 200 individual claims” since the court could have bifurcated liability and relief proceedings, as is typically done in large EEOC suits as well as class actions. In any event, administrative convenience is not an appropriate basis for barring the litigation of an EEOC enforcement action particularly where, as here, it covers many employees who were never parties to the private suit. If the company and the court had wanted to avoid a second trial, EEOC’s motions to consolidate the two cases should have been granted. Having succeeded in having a smaller individual suit tried separately, neither Pemco, not the court, should be permitted to deny the EEOC (and the other claimants) a day in court. ARGUMENT THE EEOC IS NOT PRECLUDED FROM BRINGING A TITLE VII ENFORCEMENT ACTION BY A PRIOR JUDGMENT IN A PRIVATE ACTION IN WHICH THE EEOC WAS NOT A PARTY. The district court was faced with two lawsuits alleging that African-American employees were subjected to racial harassment at Pemco’s Birmingham facility – an EEOC enforcement action alleging a pervasive hostile work environment at the facility and seeking relief for all of the 200+ African-American employees who were affected by the harassment, and an action brought by individual African-American employees under 42 U.S.C. § 1981 alleging that they were subjected to a hostile work environment based on race at the same Pemco facility. Rather than consolidate the two actions for trial, as the EEOC urged the court to do, the court permitted the private action to go to trial first and then held that the EEOC’s broader suit was precluded by the adverse judgments in the private action. This was error. Under res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Montana v. United States 440 U.S. 147, 153 (1979). Under collateral estoppel, “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party [or privy] to the prior litigation.” Id. Neither of these doctrines is applicable here because the EEOC was neither a party nor a privy to a party in the Thomas action. Moreover, as Pemco itself acknowledged in opposing consolidation, the EEOC’s claim in this action is materially different from, and broader than, the claims litigated in Thomas, and the “core factual dispute” in the EEOC’s action – whether a racially hostile work environment existed at Pemco during the relevant time frame – was not decided by the Thomas jury. There is therefore no basis in law or fact to bind the EEOC to the judgments in the Thomas suit. A. There Is No Privity Between The EEOC and The Thomas Plaintiffs. It is a fundamental principle of American jurisprudence that one cannot be bound by a judgment in a suit to which he was not either a party or in privity with a party. Martin v. Wilks, 490 U.S. 755, 761-62 (1989); Hansberry v. Lee, 311 U.S. 32, 40 (1940). Grounded in the due process guarantees of the Fifth and Fourteenth Amendments, this rule is part of “our ‘deep-rooted historic tradition that everyone should have his own day in court.’” See Richards v. Jefferson County, Ala., 517 U.S. 793, 798 (1996) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4449 (1981)). While a “judgment or decree among parties to a lawsuit resolves issues as among them,” therefore, “it does not conclude the rights of strangers to those proceedings.” Martin, 490 U.S. at 762. There is no question that the EEOC was not a party in the Thomas action. Therefore, the Commission can be bound by the judgment in that action only if it was in privity with the Thomas plaintiffs. The term “privity” is a flexible one used to describe a relationship between litigants which is deemed sufficiently close to justify preclusion. See, e.g., Richards, 517 U.S. at 798-99; Southwest Airlines v. Texas Int’l Airlines, 546 F.2d 84, 95 (5th Cir. 1977).3 Outside the context of formal legal relationships such as, for example, the relationship between a trustee and trust beneficiaries or between a class representative and members of a certified class, privity may be found in “certain limited circumstances” where a nonparty “has his interests adequately represented by someone with the same interests who is a party.” Richards, 517 U.S. at 798-99. In Richards, for example, the Supreme Court noted that non-parties who actually controlled earlier litigation can be found to be in privity with the parties to that litigation for purposes of preclusion. Id. The district court here recognized that whether the Thomas judgment precludes the EEOC’s enforcement action here turns on the question of privity. Ironically, however, after correctly identifying the question, the court never expressly determined whether privity, in fact, exists. It does not. As a general rule, the relationship between the federal government and private plaintiffs suing under a federal statute is not sufficiently close to support privity since the government has an independent interest in law enforcement that private parties do not share. Accordingly, absent special circumstances, the government is not barred by res judicata from bringing suit to enforce a federal statute merely because private litigants have previously brought suit challenging the same conduct. See, e.g., Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692 (7th Cir. 1986). Thus, in Herman v. South Carolina National Bank, 140 F.2d 1413, 1423-26 (11th Cir. 1998), for example, this Court held that the Secretary of Labor could proceed with an ERISA action despite the resolution of a private action against the same defendants since the interests of the private parties were different from those of the Secretary. The Court reasoned that, because the Secretary has “national public interests separate and distinct” from those of private litigants, “ERISA cases are consistent with the well-established general principle that the government is not bound by private litigation when the government’s action seeks to enforce a federal statute that implicates both public and private interests.” Id. at 1424-25. Accord, e.g., Fitzsimmons, 805 F.2d at 691-94 (applying principle even though, besides bringing a separate suit, Secretary had participated in joint discovery and had intervened to object to settlement in private action). Similarly, the former Fifth Circuit held that the United States would not be barred from pursuing a Voting Rights Act suit despite an earlier unsuccessful suit by private plaintiffs. United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 (5th Cir. 1979). Again, the court of appeals reasoned that the government has an interest in enforcing federal law that is independent of any claims of private citizens. See id. at 58-59. Likewise, here, this Court should hold that the Commission was not in privity with the Thomas plaintiffs and, therefore, the Thomas judgments do not preclude the Commission from maintaining this enforcement action. When it amended Title VII in 1972 to authorize EEOC enforcement actions, Congress contemplated that the EEOC would “bear the primary burden of litigation.” General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980). While the agency may also seek victim-specific relief in its suits, the “EEOC’s primary role is that of a law enforcement agency.” In re Bemis, 279 F.3d 419, 421-22 (7th Cir. 2002). Thus, even when it acts for the benefit of specific individuals, EEOC “acts also to vindicate the public interest in preventing employment discrimination” and is “guided by the overriding public interest in equal employment opportunity.” See General Telephone, 446 U.S. at 326. As the Supreme Court recently recognized, Title VII unambiguously authorizes the Commission to “evaluate the strength of the public interest at stake” and to “determine when it is in the public interest to sue to vindicate federal law.” EEOC v. Waffle House, 534 U.S. 279, 291-92 (2002); accord United States v. Mississippi Dept. of Pub. Safety, 321 F.3d 495, 499 (5th Cir. 2003) (ADA) (quoting Waffle House). This enforcement role is incompatible with a finding that the Commission’s authority to bring and maintain an enforcement action can be extinguished by a judgment in a private suit to which it was not a party. Holding that it can would undermine the EEOC’s ability to enforce the law by allowing private parties, rather than the EEOC, to dictate when the public interest would be vindicated by a separate EEOC enforcement action. The district court rejected this argument, opining that, after the court had spent nearly a month on the Thomas trial, it should not be expected to hold another, adding that it could not “find any public interest in such an outlandish expenditure of time and effort.” Mem. 6-7. Significantly, a second trial would not have been necessary had the court simply granted EEOC’s motion to consolidate. The court should not be permitted to override EEOC’s enforcement authority, thereby preventing scores of potential victims from obtaining relief for alleged harassment, merely because it would be administratively more convenient to substitute trial of a smaller private case for trial in EEOC’s broader enforcement action. Addressing a similar argument, the Supreme Court recently stated, “it is [EEOC’s] province – not that of the court – to determine whether public resources should be committed” to the recovery of relief for a particular claim of discrimination. Waffle House, 534 U.S. at 291. Furthermore, courts have uniformly held that an EEOC enforcement action may proceed even where the charging party has agreed to arbitrate or has privately resolved his individual claim, although an actual resolution may affect the relief that an individual may obtain in the EEOC’s action. In Waffle House, the Supreme Court held that, even though the charging party had agreed to arbitrate any private discrimination claims he had against his employer, that agreement did not limit the EEOC’s authority to bring an enforcement action based on the allegations in his charge and to obtain a full range of relief for any discrimination that it proved. 534 U.S. at 279 (adding that it is an “open question” whether, e.g., settlement or arbitration judgment, may affect available relief in EEOC suit). In addition, even before Waffle House, this Court held that where, as here, EEOC’s allegations of discrimination are broader than the allegations in a private suit based on the same charge, EEOC’s suit is not precluded by resolution of the private suit. EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 454-55 (5th Cir. 1975) (after termination of charging party’s private suit, EEOC may bring its own suit predicated on, but not limited to, the same charge) .4 Accord EEOC v. Kimberly Clark Corp., 511 F.2d 1352, 1361-62 (6th Cir. 1975) (adding that EEOC is not a “privy” to private settlement to which it did not agree); see also New Orleans Steamship Ass’n v. EEOC, 680 F.2d 23, 25 (5th Cir. 1982) (“EEOC may challenge a transaction which was the subject of prior judicial scrutiny in a private suit, if the subsequent challenge seeks different relief”). Courts have also held that, although the relief may be limited, the EEOC may maintain an enforcement action alleging discrimination against a single victim whose individual claim was previously resolved. See EEOC v. Harris Chernin, 10 F.3d 1286, 1291-92 (7th Cir. 1993) (finding “no privity” between EEOC and individual who already lost his ADEA suit such that private suit would bar EEOC from seeking injunctive relief); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987) (employee’s settlement rendered her personal claims moot but EEOC could proceed for injunctive relief). Neither the district court nor Pemco cited any authority to the contrary.5 Accordingly, the EEOC is not in privity with the Thomas plaintiffs simply by virtue of the fact that private litigants have previously brought suit challenging the same conduct at issue in this case. The EEOC could still be bound if it were attempting to relitigate in this action an issue actually determined in a private suit where the agency, though not a party, controlled the original litigation. See Montana v. United States, 440 U.S. 147 (1979). From the Supreme Court’s explanation of that exception, however, it is clear that it does not apply to this case. In Montana, both the United States and an individual contractor disputed the constitutionality of a state receipts tax. Initially opting to challenge the tax indirectly, the government had the contractor file suit in state court, reviewed and approved the complaint, paid the attorney’s fees and costs, directed the appeal to the state supreme court, filed a brief as amicus curiae, directed the filing of a notice of appeal to the U.S. Supreme Court and then effectuated the abandonment of that appeal when the government filed its own suit in federal court. Id. at 154-55 (noting that government conceded that it controlled state litigation). Rejecting an argument that the government should not be barred from challenging issues adversely decided in the original suit, the Supreme Court reasoned that “persons for whose benefit and at whose direction a cause of action is litigated cannot be said to be strangers to the cause.” See id. at 154-56. Given its level of involvement, the Court concluded, “the United States plainly had a sufficient ‘laboring oar’ in the conduct of the state-court litigation to actuate principles of estoppel.” Id. at 155.6 In contrast, here, the EEOC plainly did not have a sufficient “laboring oar” in the Thomas litigation to actuate principles of estoppel. Unlike the government in Montana, the EEOC did not control the filing of the private suit; the choice, preparation or presentation of witnesses or evidence at trial; legal matters such as the jury instructions; or plaintiffs’ decision not to appeal. Furthermore, and significantly, not only did the EEOC not attempt to direct the litigation from behind the scenes, it actively sought – over Pemco’s strenuous objections – to have its suit consolidated with the private case for trial. Cf. Perez v. Volvo Car Corp., 247 F.3d 303, 312 (1st Cir. 2001) (no privity unless nonparty, at a minimum, had an opportunity to join the earlier suit). That the EEOC participated in joint discovery and an EEOC attorney attended part of the Thomas trial fall far short of the level of control required to bind a nonparty to a judgment in a prior lawsuit. There is, therefore, no reason here to depart from the general rule that the government is not bound by a judgment in a private suit to which it was not a party. In reaching its contrary conclusion, the district court did not attempt to fit the case into any specific theory of preclusion or privity. See, e.g., Mem. 2-3 (eschewing “nice distinctions” between collateral estoppel and res judicata). Rather, the court asserted in general terms that, in its view, there was one “controversy,” one “core factual dispute” – whether a racially hostile work environment existed at Pemco. Since, the court remembered, that controversy had been litigated “to the hilt” and “finally disposed of” in the Thomas litigation, even though the denial of its motions to consolidate relegated the EEOC to the role of “alert and interested observer” of that litigation, the agency “is or should be bound” by the Thomas judgment. See generally id. at 2-7. Initially, we note that the Thomas litigation did not resolve the question of whether a racially hostile work environment existed at Pemco; the individual verdicts were in fact significantly more narrow. See infra at 34-37. More importantly, however, the court’s suggestion that the EEOC’s claim was somehow derivative of the private claims reflects a fundamental misunderstanding of the nature of Title VII. As the Supreme Court recently reaffirmed, EEOC’s claim is not “merely derivative” of claims brought by private plaintiffs, nor is “EEOC . . . merely a proxy for the victims of discrimination.” Waffle House, 534 U.S. at 288, 297-98 (citing General Telephone, 446 U.S. at 326); see also id. at 288 (“EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties”). Rather, as noted above, Title VII “clearly makes the EEOC the master of its own case,” authorizing the EEOC to bring its own suit and to allege its own claim, which is separate from and independent of private claims challenging similar conduct by an employer. See id. at 286, 291. Just as private litigation does not resolve the separate claims of other federal agencies, therefore, the Thomas litigation did not resolve the EEOC’s separate claim in this case.7 In its pleadings below, Pemco argued that the EEOC should be barred because its interests were so closely aligned with those of the Thomas plaintiffs that those plaintiffs were the EEOC’s virtual representatives. In fact, absent a familial relationship between the party and nonparty (see, e.g., Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988) (“familial relationship” is “important” though not conclusive factor)), there are few cases where this Court has found virtual representation under federal law – in none, has a federal agency been held precluded. Nor would a finding of virtual representation be appropriate here. This Court has held that whether a party is a virtual representative of the interest of a non-party is a question of fact. Mesa Petroleum Co. v. Coniglio, 787 F.2d 1484, 1489-90 (11th Cir. 1986). Factors relevant to such a finding include “participation in the first litigation, apparent consent to be bound, apparent tactical maneuvering, [and] close relationships between the parties and nonparties.” Jaffree, 837 F.2d at 1467. As for the requisite “close relationship,” it requires “an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a suit raising identical issues.” See, e.g., Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir. 1978), cited with approval in Mann v. City of Albany, Ga., 883 F.2d 999, 1004 (5th Cir. 1989). See also Dills v. City of Marietta, Ga., 674 F.2d 1377, 1379-80 (11th Cir. 1982) (refusing to reconsider Pollard rule); cf. Tice v. American Airlines, 162 F.3d 966, 971 (7th Cir. 1999) (“general question” is “whether the earlier parties were in some sense proper agents for the later parties”). None of these factors supports a finding of privity in this case. As a law enforcement agency, the EEOC has interests which are different from those of the Thomas plaintiffs. While private parties sue to secure specific personal relief, the “EEOC exists to advance the public interest in preventing and remedying employment discrimination.” General Telephone, 466 U.S. at 331; Riddle v. Cerro Wire & Cable Group, 902 F.2d 918, 922 (11th Cir. 1990). Thus, here, the private suit focused on the harassment each individual plaintiff had experienced; it did not address the EEOC’s concern with the alleged overall racially hostile work environment. Moreover, the Thomas plaintiffs were in no way legally “accountable” to the EEOC or the 165+ other Pemco employees covered by the EEOC’s suit. The EEOC, which sought to obtain relief for those employees, was denied – at Pemco’s request – the opportunity to actively participate in the trial. The limited role permitted to the EEOC – merely participating in joint discovery, consulting with Thomas counsel and attending parts of the trial – is not enough to support a finding of privity. See, e.g., Benson & Ford v. Wanda Petroleum, 833 F.2d 1172, 1174 (5th Cir. 1987) (no privity even though nonparty testified in private suit, party and nonparty met to discuss their common interest and used the same attorney). No one has suggested that EEOC consented to be bound by the private suit or engaged in “apparent tactical maneuvering.” In urging the district court to find privity, Pemco relied on NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1990). See R.52 (SJ Memorandum at 2, 7-8); R.56 (Reply at 8). The Hunt Court, applying Alabama law, held that a legal challenge to the constitutionality of Alabama’s practice of flying the Confederate flag atop the state capitol was barred by the adverse judgment in a suit brought 13 years earlier challenging the same practice. The Court concluded that, since the later plaintiffs as well as the original plaintiff were both state legislators and members of the NAACP – the NAACP was also a party in the second suit – the original plaintiff was “so closely aligned to the NAACP’s interests in the original suit that he was their virtual representative.” Id. at 1560-61. By analogy to Hunt, Pemco argued that the interests of the Thomas plaintiffs were so closely aligned to those of EEOC that they were the EEOC’s virtual representatives. SJ Memorandum at 7-8. There are a number of reasons why Hunt does not support the district court’s ruling in this case. First, Hunt applied Alabama law of preclusion. 891 F.2d at 1560. While the matter was previously in some doubt, this Court recently held unequivocally that “federal preclusion principles apply to prior federal decisions, whether previously decided in diversity or federal question jurisdiction.” CSX Transp., Inc. v. Brotherhood of Maint. of Way Employees, 327 F.3d 1309, 1316-17 (11th Cir. 2003); see also Aerojet-General Corp. v. Askew, 511 F.2d 710, 715-16 (5th Cir. 1975) (“[f]ederal law clearly governs the question whether a prior federal court judgment based on federal question jurisdiction is res judicata in a case also brought . . . under federal question jurisdiction”). Federal privity principles require a closer relationship between the party and nonparty than was apparent in the Hunt case. See Pollard, 578 F.2d at 1008 (requiring some sort of “express or implied legal relationship in which parties to the first suit are accountable to non-parties who file suit raising identical issues”). Hunt can also be distinguished on the ground that, unlike this case and the Thomas case, Hunt involved a public law issue – the constitutionality of flying the Confederate flag atop the state capitol – which impacted the plaintiffs’ private interests only indirectly. The Supreme Court has suggested that fairness concerns may be lessened when a plaintiff challenges “public action” such as an alleged misuse of public funds (or flag flying) that has only an “indirect impact” on his interests. Richards, 517 U.S. at 802-03. See also Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 741 (9th Cir. 1984) (finding privity under virtual representation theory in school desegregation case, explaining that if parties were allowed continually to raise issues already decided, public law claims “would assume immortality”). Finally, and significantly, Alabama preclusion law has changed materially since Hunt was decided. Specifically, in two post-Hunt decisions, the Supreme Court narrowed Alabama’s approach to privity. See South Central Bell Tel. Co. v. Alabama, 526 U.S. 160, 167 (1999); Richards, 517 U.S. at 795. Both South Central Bell and Richards involved challenges to state tax laws; in each, the Supreme Court held that Alabama’s approach to privity was too “extreme”; parties that the Alabama Supreme Court had held were bound by prior judgments were in fact not bound. Preclusion was inappropriate, the Court reasoned, because the original plaintiffs had neither sued on behalf of a class nor understood their suit to be on behalf of the second set of taxpayers; the judgment did not purport to bind any nonparty taxpayers; and the courts in the original cases had made no special efforts to protect the interests of the later plaintiffs. See South Central Bell, 526 U.S. at 168 (adding that analysis did not change even though nonparties had agreed to stay their suit pending resolution of the original one); Richards, 517 U.S. at 801-02 (noting that to have binding effect on absent parties, a prior proceeding must be “so devised and applied” as to insure not only “that the litigation is so conducted as to insure the full and fair consideration of the common issue” but also “that those present are of the same class as those absent”). The nonparties were, therefore, “mere strangers” to the earlier suits. Applying similar standards here, the EEOC likewise was effectively a “stranger” to the Thomas suit. Like the original plaintiffs in Richards and South Central Bell, the Thomas plaintiffs did not represent a class nor could they reasonably have understood their suit to be on behalf of other employees or the EEOC – they elected to proceed as “individual plaintiffs” after Pemco opposed class certification. Thomas ## 22-24. In addition, the judgment they received – based on the 22 individual jury verdicts and the nine accepted offers of judgment – did not purport to bind anyone other than the parties. Nor can it be said that the court took care to protect the interests of the nonparties or to ensure that those present were “of the same class” as those absent. See Tice, 162 F.3d at 972 (under Richards, nonparties’ interests cannot be considered sufficiently aligned with those of earlier litigants unless earlier litigants would have been adequate class representatives for later litigants). On the contrary, the court’s reasons for denying EEOC’s motion to consolidate the two suits did not include a finding that nonparties’ rights would be adequately protected by a trial in the narrower private suit; the court instead acknowledged that it was motivated by perceived “logistical problems.” See Mem. 4-7. Moreover, the EEOC is clearly not “of the same class” as the private plaintiffs. As a federal enforcement agency, EEOC does not sue as a Rule 23 class representative (see General Telephone, 446 U.S. at 327), and it could not reasonably be considered a member of any class represented by private plaintiffs. As for the approximately 165 African-American employees who were never parties to the Thomas case, there is no evidence that the court gave any thought to whether the Thomas plaintiffs could adequately represent a class to which those other employees were members. And since Pemco opposed class certification, it may be assumed that the company believed they could not properly represent the other employees. In short, there is no basis for concluding that the EEOC was in privity with the Thomas plaintiffs. Consistent with the dictates of fundamental fairness, therefore, we urge this Court to hold that the EEOC is not bound by the judgment in that case. B. Even if The EEOC Were in Privity With the Thomas Plaintiffs, This Action Would Not Be Precluded Because of the Differences in the Claims in the Two Cases. Even if there were privity, res judicata and collateral estoppel still could not be applied to bar EEOC’s suit because of the nature of the claims at issue in the two suits. Res judicata precludes relitigation of claims based on the same cause of action. Montana, 440 U.S. at 153. As Pemco itself stressed in opposing consolidation, however, the EEOC’s cause of action is materially different from those of the private plaintiffs.8 The private plaintiffs effectively litigated 22 individual harassment claims. The EEOC, in contrast, would be litigating first the question of whether a hostile work environment existed generally and only secondarily whether any particular claimant is entitled to relief. An adverse judgment in an individual case does not bar a subsequent pattern-or-practice claim any more than an adverse judgment in a pattern-or-practice claim precludes later litigation of individual claims. See Cooper v. Federal Res. Bank, 467 U.S. 867, 157-58 (1984) (“crucial difference” between individual and class claims is that focus at liability stage of pattern-or-practice trial is on “pattern of discriminatory decisionmaking” rather than on individual employment decisions); cf. Falcon v. General Tel. of the S.W., 457 U.S. 147, 157-58 (1982) (validity of individual claim does not alone establish validity of class claim). The scope of the EEOC’s claim is also significantly broader than the claims in the private suit. EEOC has identified approximately 165 potential victims of the alleged racial harassment who were not parties to the Thomas suit at any time. Under res judicata, however, when a plaintiff obtains a judgment in his favor, his claim “merges” in the judgment; he may seek no further relief on that cause of action in a separate action. Empire Fire & Marine Ins. Co. v. J. Transport, 880 F.2d 1291, 1295 (11th Cir. 1989). If the EEOC’s claim were res judicata in light of the Thomas judgment, therefore, it would “merge” into the judgment in the Thomas suit, and none of the other Pemco employees could have recovered any relief even if all 22 Thomas plaintiffs had won at trial. Yet even the district court recognized that it could not have dismissed the EEOC’s case if the jury had rendered favorable verdicts in Thomas. Mem. 7. It would thus be highly inappropriate to hold that the EEOC’s claim is precluded under res judicata principles by the judgment in the narrower Thomas suit.9 As for collateral estoppel, it precludes relitigation of any issue that was “actually and necessarily determined” in the earlier suit. See Montana, 440 U.S. at 153. Here, however, the issue central to the EEOC’s suit – whether a racially hostile work environment existed at Pemco during the relevant time frame – was neither actually nor necessarily determined in the earlier litigation. On the contrary, the Thomas jury completed a separate verdict form for each of the 22 Thomas plaintiffs, finding as to each that he “was not subjected to a hostile or abusive work environment because of his race.” See Thomas ## 226-47; Trial Transcript at 19, 39-43 (explaining special interrogatories); id. at 56-60 (reading 22 separate verdicts). This need not have been because the jury found no racially hostile work environment – the jury instead could have concluded, for example, that the specific plaintiff was not exposed to the worst harassment or did not subjectively find the incidents he was subjected to especially objectionable. Compare R.16 (Response to EEOC’s 2d Consolidation Motion at 3) (“Proof that others have experienced objectionable conduct is the heart of [EEOC’s] case whereas it could be totally irrelevant (not to mention objectionable and prejudicial) in [Thomas].”). Although the district court remembered the Thomas jury as having determined that no hostile work environment existed at Pemco (Mem. 2), the special interrogatories, verdicts and even the docket sheet (none of which Pemco quoted or attached to its motion) confirm that the jury made no such finding. The verdicts in the Thomas case would therefore not collaterally estop the EEOC from attempting to prove the existence of a racially hostile work environment at Pemco during the relevant time period. C. Logistical Problems Cannot Justify Dismissal of the EEOC’s Action. The district court made no secret of the fact that it was granting summary judgment in large part because it did not want to try a suit involving 200 or more potential victims. See Mem. 6 (mere idea “boggles the court’s mind”). However, that simply is not an appropriate basis for barring the litigation of an EEOC enforcement action. In the first place, as the EEOC pointed out in its pleadings below (Mem. 5), trial of the EEOC’s case need not mean “trying 200 individual claims.” Rather, the issues of liability and relief could be bifurcated – along the lines approved in EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001), for example. Courts have approved the use of bifurcation in large suits, even where damages are at issue. See, e.g., Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir. 1999) (permitting use of bifurcation in class tort action); cf. NAACP v. City of Evergreen, Ala., 693 F.2d 1367, 1370 n.2 (11th Cir. 1982) (explaining bifurcated proceedings in Title VII class suit). At Stage 1, the jury would determine whether a hostile environment existed at Pemco and, if so, during what time frame; the jury could also make determinations concerning punitive damages. Once those liability parameters were set, the jury in Stage 2 would determine only whether and to what degree each claimant was injured by the harassment; indeed, depending on the parameters, EEOC might itself decide that specific individuals should be excluded from the group covered by the suit. Notwithstanding the availability of compensatory damages, the trial would not be materially different from earlier bifurcated proceedings where, once liability was established, the factfinder was required to determine monetary relief for large numbers of claimants. Teamsters v. United States, 431 U.S. 324 (1977), for example, involved hundreds of potential claimants – and individual backpay claims – nationwide. In any event, if Pemco had wanted to avoid retrying any of the issues relating to the alleged racially hostile work environment, it should not have opposed consolidating EEOC’s suit with the Thomas suit for trial (and/or certifying the plaintiff class, assuming the Rule 23(a) elements were met). As it is, if the judgment stood, Pemco would achieve the benefits of trying and winning a broad EEOC enforcement action as well as a certified class action merely by defending against the claims of a fraction of the potential victims. Cf. Becherer v. Merrill Lynch, Pierce, Fenner & Smith, 193 F.3d 415, 427 (6th Cir. 1999) (en banc) (noting that virtual representation doctrine is inapplicable in case where original class was never certified, because it would “effect an end run around the limitations of Rule 23"); Tice, 162 F.3d at 973 (“little point in having Rule 23 if courts could ignore its careful structure and create de facto class actions at will”). Having succeeded in having the smaller individual suit tried separately, neither Pemco – nor the court – should be permitted to deny the EEOC (and the remaining claimants) a day in court. CONCLUSION For the foregoing reasons, the Commission asks this Court to reverse the judgment and remand the case to the district court for further proceedings. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Courier New (monospaced) typeface, 12 point font, and contains 9469 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Word Perfect 9 word counting program. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission as Appellant were mailed this 30th day of June, 2003, by express mail, postage prepaid, to: Stephen E. Brown Jeffrey A. Lee MAYNARD, COOPER & GALE PC AmSouth Harbert Plaza, Suite 2400 1901 Sixth Avenue, North Birmingham, AL 35203-2618 _____________________________ Barbara L. Sloan As for collateral estoppel, it precludes relitigation of any issue that was "actually and necessarily determined" in the earlier suit. See Montana, 440 U.S. at 153. Here, however, the issue central to the EEOC's suit - whether a racially hostile work environment existed at Pemco during the relevant time frame - was neither actually nor necessarily determined in the earlier litigation. On the contrary, the Thomas jury completed a separate verdict form for each of the 22 Thomas plaintiffs, finding as to each that he "was not subjected to a hostile or abusive work environment because of his race." See Thomas ## 226-47; Trial Transcript at 19, 39-43 (explaining special interrogatories); id. at 56-60 (reading 22 separate verdicts). This need not have been because the jury found no racially hostile work environment - the jury instead could have concluded, for example, that the specific plaintiff was not exposed to the worst harassment or did not subjectively find the incidents he was subjected to especially objectionable. Compare R.16 (Response to EEOC's 2d Consolidation Motion at 3) ("Proof that others have experienced objectionable conduct is the heart of [EEOC's] case whereas it could be totally irrelevant (not to mention objectionable and prejudicial) in [Thomas]."). Although the district court remembered the Thomas jury as having determined that no hostile work environment existed at Pemco (Mem. 2), the special interrogatories, verdicts and even the docket sheet (none of which Pemco quoted or attached to its motion) confirm that the jury made no such finding. The verdicts in the Thomas case would therefore not collaterally estop the EEOC from attempting to prove the existence of a racially hostile work environment at Pemco during the relevant time period. C. Logistical Problems Cannot Justify Dismissal of the EEOC's Action. The district court made no secret of the fact that it was granting summary judgment in large part because it did not want to try a suit involving 200 or more potential victims. See Mem. 6 (mere idea "boggles the court's mind"). However, that simply is not an appropriate basis for barring the litigation of an EEOC enforcement action. In the first place, as the EEOC pointed out in its pleadings below (Mem. 5), trial of the EEOC's case need not mean "trying 200 individual claims." Rather, the issues of liability and relief could be bifurcated - along the lines approved in EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001), for example. Courts have approved the use of bifurcation in large suits, even where damages are at issue. See, e.g., Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir. 1999) (permitting use of bifurcation in class tort action); cf. NAACP v. City of Evergreen, Ala., 693 F.2d 1367, 1370 n.2 (11th Cir. 1982) (explaining bifurcated proceedings in Title VII class suit). At Stage 1, the jury would determine whether a hostile environment existed at Pemco and, if so, during what time frame; the jury could also make determinations concerning punitive damages. Once those liability parameters were set, the jury in Stage 2 would determine only whether and to what degree each claimant was injured by the harassment; indeed, depending on the parameters, EEOC might itself decide that specific individuals should be excluded from the group covered by the suit. Notwithstanding the availability of compensatory damages, the trial would not be materially different from earlier bifurcated proceedings where, once liability was established, the factfinder was required to determine monetary relief for large numbers of claimants. Teamsters v. United States, 431 U.S. 324 (1977), for example, involved hundreds of potential claimants - and individual backpay claims - nationwide. In any event, if Pemco had wanted to avoid retrying any of the issues relating to the alleged racially hostile work environment, it should not have opposed consolidating EEOC's suit with the Thomas suit for trial (and/or certifying the plaintiff class, assuming the Rule 23(a) elements were met). As it is, if the judgment stood, Pemco would achieve the benefits of trying and winning a broad EEOC enforcement action as well as a certified class action merely by defending against the claims of a fraction of the potential victims. Cf. Becherer v. Merrill Lynch, Pierce, Fenner & Smith, 193 F.3d 415, 427 (6th Cir. 1999) (en banc) (noting that virtual representation doctrine is inapplicable in case where original class was never certified, because it would "effect an end run around the limitations of Rule 23"); Tice, 162 F.3d at 973 ("little point in having Rule 23 if courts could ignore its careful structure and create de facto class actions at will"). Having succeeded in having the smaller individual suit tried separately, neither Pemco - nor the court - should be permitted to deny the EEOC (and the remaining claimants) a day in court. CONCLUSION For the foregoing reasons, the Commission asks this Court to reverse the judgment and remand the case to the district court for further proceedings. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Courier New (monospaced) typeface, 12 point font, and contains 9469 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Word Perfect 9 word counting program. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission as Appellant were mailed this 30th day of June, 2003, by express mail, postage prepaid, to: Stephen E. Brown Jeffrey A. Lee MAYNARD, COOPER & GALE PC AmSouth Harbert Plaza, Suite 2400 1901 Sixth Avenue, North Birmingham, AL 35203-2618 _____________________________ Barbara L. Sloan 1. The district court mistakenly stated that discovery was closed in the EEOC's case as well. Mem. 2. In fact, discovery was still ongoing in this suit. See, e.g., R.102 (9/10/02 Order inter alia granting Pemco's motion seeking "extension of discovery"). 2. In the interim between the two consolidation motions, several of the plaintiffs had been dismissed for procedural reasons. See, e.g., Thomas ## 59-60 (dismissing Levi Billups). 3. Decisions of the Fifth Circuit issued prior to October 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1201 (11th Cir. 1981). 4. Pemco attempted to distinguish Huttig Sash below on the ground that Huttig Sash was voluntarily dismissed (with prejudice) whereas Thomas was fully tried. That is a distinction without a difference. While res judicata requires "a final judgment on the merits," the requirement is satisfied by dismissal of a complaint with prejudice pursuant to a settlement and/or stipulated dismissal under Rule 41(a). Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 327 (1955) (judgment dismissing suit "with prejudice" bars later suit on same cause of action); Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501-02 (11th Cir. 1990) (same). 5. There is dicta in Huttig Sash to the effect that, after the "termination of the aggrieved person's suit," the EEOC would be barred by res judicata from "filing suit on that particular charge and on behalf of that person who had his suit adjudicated." 511 F.2d at 456. It is not clear whether this statement can be reconciled with the later holdings in General Telephone and Waffle House that the EEOC's claims are not derivative of the claims of the charging party. However, this Court need not resolve the issue because the question of whether any of the Thomas plaintiffs can obtain relief has no relevance to this appeal; it would become relevant only in the relief stage of the case. As noted above, approximately 165 other employees were potentially affected by the alleged harassment. Under Huttig Sash, the Thomas judgments "do[] not cut off the EEOC's right to bring suit to end practices discovered through the investigation of the charge[s] filed by [the Thomas plaintiffs]." 511 F.2d at 456. Since the complaint in this action alleges violations that go beyond the claims of the Thomas plaintiffs, there is no question that the action can proceed. 6. See also Schnell v. Peter Eckrich & Sons, 365 U.S. 260, 262 & n.4 (1961) (nonparty acting as "puppeteer" of party would be bound by judgment); Restatement (Second) of Judgments § 39, com. c (1982) (requiring that person "have effective choice as to the legal theories and proofs to be advanced" as well as control over the decision to appeal). 7. Ironically, because individuals' private interests may conflict with the broader public interests of the EEOC, individuals who reject the relief to which they would be entitled from an EEOC suit are not bound by that judgment or relief; EEOC's suit is not preclusive of their private rights. See, e.g., General Telephone, 446 U.S. at 333; Riddle v. Cerro Wire & Cable Group, 902 F.2d 918, 922 (11th Cir. 1990). The district court's approach in this case, however, would have the anomalous effect of binding the EEOC to the judgment in a private suit even though those private individuals would not be bound by a judgment in EEOC's suit. Cf. East Baton Rouge Parish School Bd., 594 F.2d at 58 n.6 (although government suit may sometimes be preclusive of rights of individual citizens, doubting without deciding that converse is also true). 8. "The [Thomas] case consists of thirty-one (31) individual cases filed together. Each of the thirty-one Plaintiff's cases . . . must stand on its own merits. The EEOC's case is obviously much broader in that it does not allege that any particular employee has been subjected to a hostile environment. Instead, it alleges class-wide discrimination and opens the door to evidence that would be potentially wholly inadmissible in [Thomas] . . . ." R.30 (Defs' Response to EEOC's 2d Consolidation Motion at 3). 9. A further difference between the two suits is the applicable time frame for liability and damages. The Supreme Court has held that as long as at least one act contributing to the hostile environment occurred within the charge-filing period, an employer may be liable, and damages may be assessed, based on the entire period during which a hostile work environment existed. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,2 S. Ct. 2161, 2074-76 (2002). See also Watson v. Blue Circle, 324 F.3d 1252, 1258-59 (11th Cir. 2003) ("hostile work environment, although comprised on a series of separate acts, constitutes one 'unlawful employment practice'"; liability may be based on entire period if at least one act occurred within charge-filing period); Shield v. Fort James Corp., 305 F.3d 1280 (11th Cir. 2002) (same standard for § 1981 claims). Contrary to the district court's assertion (Mem. 4), however, the jury in Thomas was instructed that the applicable "time frame" for liability and damages extended only from "December 9, 1997, until the last witness testified," i.e., from two years before suit was filed. (Trial Transcript at 19). See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (two-year limitations period for § 1981 claims in Alabama). Consistent with Morgan, a jury in EEOC's case, however, could consider incidents occurring before December 9, 1997, not only as background evidence but also for purposes of determining liability and damages.