Equal Employment Opportunity Commission v. Circuit City Stores 00-1667 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _____________________ No. 00-1667 _____________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. (D. Ct. No. 1:99-cv-177) CIRCUIT CITY STORES, Defendant-Appellant. __________________________________ CIRCUIT CITY STORES, Petitioner-Appellant, v. (D. Ct. No. 1:99-cv-561) JULIE SHELTON, Respondent-Appellee. ______________________________________________________ Appeal from the United States District Court for the Western District of Michigan ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _____________________________________________________ GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 TABLE CONTENTS Page TITLE VII FACT SHEET iii TABLE OF AUTHORITIES iv STATEMENT OF JURISDICTION 1 1. EEOC v. Circuit City Stores 1 2. Circuit City Stores v. Shelton 2 STATEMENT OF THE ISSUES 3 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings 3 2. Statement of Facts 5 3. District Court's Decisions 8 STANDARD OF REVIEW 11 SUMMARY OF ARGUMENT 11 ARGUMENT I. THIS COURT LACKS JURISDICTION OVER THE INTERLOCUTORY APPEAL OF THE DISTRICT COURT'S ORDER DENYING CIRCUIT CITY'S MOTION TO COMPEL EEOC TO ARBITRATE AND TO STAY PROCEEDINGS IN EEOC'S TITLE VII ENFORCEMENT ACTION PENDING ARBITRATION. 18 II. EVEN IF THERE WERE APPELLATE JURISDICTION, CIRCUIT CITY'S CHALLENGE TO THE DISTRICT COURT'S ORDER DENYING THE COMPANY'S MOTION IN THE COMMISSION'S ENFORCEMENT ACTION IS MERITLESS. 24 A. Circuit City Does Not Argue That The District Court Should Have Granted The Relief It Requested Below - An Order Compelling EEOC to Arbitrate And A Stay of This Enforcement Action Pending That Arbitration. 25 B. Circuit City's New Argument That The EEOC's Enforcement Action Should Be Stayed Pending Arbitration With Shelton Must Also Be Rejected in Light of Frank's Nursery And Northwest Airlines, And There Is No Reason For This Court To "Reconsider" Those Decisions Here. 26 C. The Fact That Circuit City Has Sued Shelton Seeking To Compel Her To Arbitrate Does Not Provide A Basis For Distinguishing This Court's Precedent Or Staying The EEOC's Enforcement Action. 35 1. The Commission's Enforcement Action Should Not Be Stayed. 36 2. The District Court Correctly Ruled That Julie Shelton May Not Be Compelled To Arbitrate With Circuit City Since She Has Disavowed Any Intention To Litigate Any Private Title VII Claims She May Have. 42 CONCLUSION 55 CERTIFICATE OF COMPLIANCE 56 CERTIFICATE OF SERVICE ADDENDUM Designation of Appendix Contents Johnson v. Circuit City Stores, 2000 WL 19166 (4th Cir.), cert. denied, 120 S. Ct. 2744 (Jun. 29, 2000) Gannon v. Circuit City Stores, 2000 WL 1062102 (E.D. Mo. July 10, 2000) UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT FACT SHEET FOR TITLE VII APPEALS 6th Cir. R. 20 requires that counsel for the appellant and for the appellee file a one-page fact sheet in all Title VII appeals. The fact sheet should be the same size as the pages in the brief. It should be placed in the briefs of the parties immediately following the table of contents and preceding the statement of issues presented for review. Use this form, 6CA-56. Case name and number EEOC v. Circuit City Stores, No. 00-1667 (6th Cir.) Person reporting Barbara L. Sloan 1. Date EEOC complaint was filed May 2, 1998 2. Was any compromise reached by the state civil rights agency? no by EEOC? no 3. Date EEOC right to sue letter issued N/A 4. Date present action filed March 8, 1999 5. Have all filings been timely? yes If not, are any "tolling" arguments available? N/A If so, describe: 6. Nature of claims of discrimination and dates of occurrence: Sexual harassment, constructive discharge; retaliation 1997-98; 1999 and thereafter 7. Disposition below: Denial of defendant's motion to compel EEOC to arbitrate and stay proceedings in EEOC enforcement action pending arbitration 6CA-56 3/90 TABLE OF AUTHORITIES CASES Page(s) AT&T Tech., Inc. v. Communications Workers of America, 475 U.S. 643 (1986) 44 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 32 Allinder v. Intercity Products Corp., 152 F.3d 544 (6th Cir. 1998), cert. denied, 525 U.S. 1178 (1999) 46 Beil v. Lakewood Engineering & Manufacturing Co., 15 F.3d 546 (6th Cir. 1994) 21 Bell v. Conopco, 186 F.3d 1099 (8th Cir. 1999) 40 Bill Johnson's Restaurant v. NLRB, 461 U.S. 731 (1983) 51 Carson v. American Brands, 450 U.S. 79 (1981) 19, 23 Circuit City Stores v. EEOC, No. 99-2360, 2000 WL 162448 (4th Cir. Oct. 31, 2000) 7 Dean Witter Reynolds v. Byrd, 470 U.S. 213 (1985) 43 EEOC v. Frank's Nursery & Crafts, 177 F.3d 448 (6th Cir. 1999) passim EEOC v. Kidder, Peabody & Co., 156 F.3d 298 (2d Cir. 1998) 30-34, 40 EEOC v. Kimberly Clark Corp., 511 F.2d 1352 (6th Cir. 1975) 25 EEOC v. Northwest Airlines, 188 F.3d 695 (6th Cir. 1999), reh'g en banc denied, 1999 U.S. App. LEXIS 32383 (6th Cir. Dec. 10, 1999) . passim EEOC v. Waffle House, 193 F.3d 805 (4th Cir. 1999) 26, 30-34 Farrand v. Lutheran Brotherhood, 993 F.2d 1253 (7th Cir. 1993) 51 Floss v. Ryan's Family Steak Houses, 211 F.3d 306 (6th Cir. 2000), cert. denied, 69 U.S.L.W. 3282 (U.S. Jan. 8, 2001) 11 Gannon v. Circuit City Stores, 2000 WL 1062102 (E.D. Mo. July 10, 2000) 49 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) 31, 41, 48 Gillis v. United States Department of HHS, 759 F.2d 565 (6th Cir. 1985) 23 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) 43 Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) 22, 23, 24 Johnson v. Circuit City Stores, 2000 WL 19166 (4th Cir.), cert. denied, 120 S. Ct. 2744 (Jun. 29, 2000) 49 Johnson v. Jones, 515 U.S. 304 (1995) 19 Johnson v. Manhattan Railway Co., 289 U.S. 479 (1933) 21 Knafel v. Pepsi Cola Bottlers, 850 F.2d 1155 (6th Cir. 1988) 21 Landis v. North American Co., 299 U.S. 248 (1936) 37, 40 Levin v. Childers, 101 F.3d 44 (6th Cir. 1996) 27 Mastrobuono v. Shearson, Lehman, Hutton, 514 U.S. 52 (1995) 43, 47 Merrill, Lynch, Pierce, Fenner & Smith v. Nixon, 210 F.3d 814 (8th Cir.), cert. denied, 121 S. Ct. 383 (2000) 30, 40 Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) 19 Mitchell v. Robert DeMario Jewelry, 361 U.S. 288 (1960) 52 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985) 51 Moses H. Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1 (1982) 11, 37 Ohio Environmental Council v. United States District Court, 565 F.2d 393 (6th Cir. 1977) 38, 40 Parker v. Baltimore & Ohio Railway Co., 652 F.2d 1012 (D.C. Cir. 1981) 52 Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969) 52 Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996) 19, 22 Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 1998) 22 Selcke v. New England Insurance Co., 2 F.3d 790 (7th Cir. 1993) 19 United States v. Napier, 233 F.3d 394 (6th Cir. 2000) 28 United States v. Pi, 174 F.3d 745 (6th Cir.), cert. denied, 528 U.S. 825 (1999) 21 United States v. Samour, 199 F.3d 821 (6th Cir. 1999) 25 Volt Information Services v. Board of Trustees, 489 U.S. 468 (1989) 25, 43, 54 Zimmerman v. International Companies & Consulting, Inc., 107 F.3d 344 (5th Cir. 1997) 37 STATUTES The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. passim 9 U.S.C. § 2 43 9 U.S.C. § 3 37 9 U.S.C. § 4 16, 43, 49 9 U.S.C. § 16 2, 3, 12, 20-21 28 U.S.C. § 1291 3, 19 28 U.S.C. § 1292(a) 23 28 U.S.C. § 1331 2 28 U.S.C. § 1345 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. passim 42 U.S.C. § 2000e-5 6, 41, 47 42 U.S.C. § 2000e-5(f) 2, 46, 48 The First Judiciary Act of 1789, 1 Stat. 73 18 OTHER AUTHORITY H.R. Rep. No. 40, 102d Cong., 1st Sess. (1991) 31 EEOC: Enforcement Guidance on Waivers, 8 FEP Manual (BNA) 405:7491 32 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _____________________ No. 00-1667 _____________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. (D. Ct. No. 1:99-cv-177) CIRCUIT CITY STORES, INC., Defendant-Appellant. __________________________________________ CIRCUIT CITY STORES, INC. Petitioner-Appellant, v. (D. Ct. No. 1:99-cv-561) JULIE SHELTON, Respondent-Appellee. _____________________________________________________ Appeal from the United States District Court for the Western District of Michigan _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _____________________________________________________ STATEMENT OF JURISDICTION 1. EEOC v. Circuit City Stores, No. 1:99-cv-177. This is an interlocutory appeal from the district court's order denying Circuit City Stores' motion to compel the Equal Employment Opportunity Commission to arbitrate and to stay proceedings in this EEOC enforcement action, pending arbitration between Circuit City and the Commission. The Commission brought suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). District court docket number ("R.") 1, Apx.3. The district court had jurisdiction over that suit under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 2000e-5(f)(3). However, this Court lacks jurisdiction over the appeal in this case. The only basis for appellate jurisdiction that Circuit City identifies is § 16 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 16, which provides for interlocutory appeal of, inter alia, "an order -- (A) refusing a stay of any action under section 3 of this title, [or] (B) denying a petition under section 4 of this title to order arbitration to proceed." Brief at 3. However, this Court has explicitly held that the FAA "does not apply to Title VII actions brought by the EEOC on behalf of an employee who has signed an arbitration agreement." See EEOC v. Northwest Airlines, 188 F.3d 695, 701 (6th Cir.), reh'g en banc denied, 1999 U.S. App. LEXIS 32383 (6th Cir. Dec. 10, 1999). Thus, Circuit City's motion was not properly brought under the FAA, and § 16 does not provide a basis for interlocutory appeal of the order denying that motion. There is no other basis for appellate jurisdiction over the interlocutory order in the Commission's enforcement action. 2. Circuit City Stores v. Shelton, No. 1:99-cv-561. The Commission takes no position on the jurisdictional basis -- diversity -- that Circuit City has alleged for its suit against Shelton in the district court. This Court has jurisdiction over the final order dismissing that suit under 9 U.S.C. § 16 and 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether this Court has appellate jurisdiction over an interlocutory appeal from the denial of a motion to compel EEOC to arbitrate and to stay proceedings in an EEOC enforcement action pending arbitration, where the Commission has never agreed to arbitrate its claims against the employer. 2. Whether the district court abused its discretion in denying Circuit City's motion to stay proceedings in the Commission's Title VII enforcement action pending arbitration where it is undisputed that the Commission cannot be compelled to arbitrate its claims and Julie Shelton, the party upon whose charge the Commission's action is based, has not attempted to litigate or arbitrate any private claims she may have against the company. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings Although Circuit City filed only a single appeal in this Court, the company seeks review of two distinct orders of the district court in two consolidated actions which involve different parties and raise distinct legal issues. In EEOC v. Circuit City Stores, No. 1:99-cv-177, the district court denied Circuit City's motion to compel EEOC to arbitrate and to stay proceedings pending arbitration. R.38, Apx.7. In Circuit City Stores v. Shelton, No. 1:99-cv-561, the district court granted judgment on the pleadings and/or summary judgment and dismissed Circuit City's petition to compel the charging party, Julie Shelton, to arbitrate. R.37, Apx.7. On March 8, 1999, the Commission brought a Title VII enforcement action against Circuit City, alleging sexual harassment and constructive discharge. R.1, Apx.3. On July 26, 1999, Circuit City moved to compel EEOC to arbitrate and to stay proceedings pending arbitration. R.7 (Defendant's Motion, seeking "to compel the EEOC to arbitration" and "to stay proceedings . . . until completion of the required arbitration"), Apx.3. Following a hearing, on September 29, 1999, a magistrate judge denied the motion, R.15, Apx.4, and Circuit City appealed the ruling to the district court on October 15, 1999. R.16, Apx.4. On July 26, 1999, concurrently with its motion in EEOC's enforcement action, Circuit City brought a separate suit against Julie Shelton, whose charge was the basis for the Commission's enforcement action. District court docket number in Case No. 1:99-cv-561 ("R-Shelton") at 1, Apx.11. On motion by the Commission, the district court consolidated Circuit City's suit against Shelton with EEOC's Title VII enforcement action. R.23, Apx.5. Thereafter, the Commission amended its complaint to add a claim that Circuit City retaliated against Shelton by providing adverse employment references and filing suit against her. R.22, Apx.5. On December 20, 1999, Circuit City renewed its motion to compel the Commission to arbitrate and to stay proceedings pending arbitration. R.28, Apx.6. The next day, Shelton moved for judgment on the pleadings or, in the alternative, for summary judgment in Circuit City's suit against her. R.30, Apx.6. On May 16, 2000, the district court issued an Order denying Circuit City's motion in the Commission's case, R.38 ("Order"), Apx.7, and granted Shelton's motion, dismissing Circuit City's suit against her. R.37 ("Opinion"), Apx.7. On June 12, 2000, Circuit City filed a single notice of appeal challenging both rulings. R.40, Apx.40. 2. Statement of Facts Before submitting an application for employment with Circuit City, all job applicants are required to sign the company's "Dispute Resolution Agreement," which is printed on the first few pages of the job application. This document provides that, as a condition of employment, applicants and employees must agree to "settle any and all previously unasserted claims, disputes or controversies arising out of or relating to [their] . . . employment with Circuit City, exclusively by final and binding arbitration." See Opinion at 3, Apx.52. It also specifies that "if [such individuals] do file a lawsuit . . ., Circuit City may use [the] Agreement in support of its request to the court to dismiss the lawsuit and require [them] instead to use arbitration." Id., Apx.52. Further, the document states that such individuals "may file administrative charges with the [EEOC] or similar federal, state or local agency" but that, "upon receipt of a right-to-sue letter or similar administrative determination," they must "arbitrate any claim that [they] may have against Circuit City." Id. at 3-4, Apx.52-53. Julie Shelton applied to work at Circuit City in February 1997. She signed the Dispute Resolution Agreement in her job application. Shelton was hired as a salesperson in the Holland, Michigan, store and worked there until January 1998. Soon after leaving her employment, Shelton filed a charge with the Commission, alleging that she had been sexually harassed by her store manager and, because the harassment made the conditions of her employment intolerable, she had been compelled to resign from her position. See Opinion at 1, Apx.50; R.22, EEOC's First Amended Complaint at 1, Apx.166. She did not file suit or take any other steps to resolve her claim against the company. Pursuant to 42 U.S.C. § 2000e-5, the Commission conducted an investigation of Shelton's charge and determined that there was reasonable cause to believe the allegations in the charge were true. When conciliation failed, the Commission exercised its authority under Title VII to bring an enforcement action against Circuit City alleging sexual harassment and constructive discharge. R.1, Apx.3. Without answering the complaint, Circuit City moved to compel the Commission to arbitrate and to stay proceedings in the enforcement action pending arbitration.<1> R.7 (Defendant's Motion to Stay Proceedings and Compel Arbitration), Apx.69. Although the Commission had never agreed to arbitrate its claims against Circuit, the company argued that the Commission was, in effect, bound by the agreement Shelton signed. The Commission never issued Julie Shelton a notice of right to sue. R.30 (Shelton Aff. ¶ 5), Apx.189. Shelton did not intervene in the Commission's action and disavowed any intent to litigate any private claims she might have against the company. Id. at ¶ 4, Apx.189. Nevertheless, still without answering the complaint in the Commission's suit, Circuit City filed a separate action against Shelton, asking that she be ordered to arbitrate her private Title VII damage "claim." R-Shelton at 1, Apx.19. Circuit City took the position that its Dispute Resolution Agreement allows the company to sue non-arbitrating employees affirmatively to compel arbitration of their employment discrimination "claims" even where, as here, the victim has done nothing more than file a charge. The district court consolidated Circuit City's suit against Shelton with the Commission's existing enforcement action. R.23, Apx.171. Thereafter, Shelton moved for judgment on the pleadings or for summary judgment, arguing that the Agreement is unenforceable, and, in any event, she could not be compelled to arbitrate since she had not sued Circuit City and did not intend to do so. R.30, Apx.181-84. 3. District Court's Decisions In EEOC v. Circuit City Stores, No. 1:99-cv-177, the district court denied Circuit City's renewed motion to stay proceedings and compel the Commission to arbitrate its Title VII sexual harassment and retaliation claims against the company. The court reasoned that the matter was controlled by EEOC v. Frank's Nursery & Crafts, 177 F.3d 448 (6th Cir. 1999), and EEOC v. Northwest Airlines, 188 F.3d 695 (6th Cir.), reh'g en banc denied, 1999 U.S. App. LEXIS 32383 (6th Cir. Dec. 10, 1999), where this Court held and reaffirmed that an employer cannot compel the Commission to arbitrate absent an arbitration agreement between the Commission and the employer. The court therefore ordered that Circuit City "forthwith file its Answer" to the Commission's complaint. Order at 1, Apx.63. In Circuit City Stores v. Shelton, No.1:99-cv-561, the district court granted Shelton's motion and dismissed Circuit City's suit seeking compulsory arbitration of her unasserted Title VII "claims." The court initially considered and rejected Circuit City's procedural argument that Shelton's motion was "inappropriate" because, according to the company, she could raise objections to arbitration only after she had arbitrated. Opinion at 5-7, Apx.54-56. The court reasoned that, before ordering arbitration, it was required to determine whether the parties had agreed to arbitrate the dispute in question and, if so, the terms under which arbitration was to occur. Id. at 6-7, Apx.55-56. The court concluded that it could properly make these determinations in ruling on a motion such as Shelton filed. Turning to the merits, the court held that dismissal was appropriate in light of the terms of the Circuit City arbitration agreement and relevant circuit precedent. Regarding the agreement, the court noted that, because Shelton had signed an agreement to arbitrate, the question was "one of the scope of that agreement: whether it encompasses the dispute at hand." Opinion at 8 (adding that, although parties' intent was controlling, "those intentions [should be] generously construed as to issues of arbitrability"), Apx.57. The court noted that the agreement requires that Shelton settle "any and all previously unasserted claims, disputes or controversies" and that, if "Shelton files a lawsuit . . . regarding a dispute arising out of her employment with Circuit City, the company may rely on the agreement to request the dismissal of the action." Id. at 8-9 (original emphasis), Apx.57-58. The court noted, however, that Shelton had not filed a lawsuit, that she had attested that she did not intend to sue, and that she could not do so even if she wanted to since she had not received a right-to-sue letter. Id. at 9, Apx.58. The court also noted that the agreement expressly permits Shelton to exercise her right to file a charge with the Commission and specifies that she must arbitrate "upon receipt of a right-to-sue letter or similar administrative determination." The court concluded that this language "can only be read" as encompassing determinations like a notice of right to sue "which would permit Shelton to pursue her own civil action." Opinion at 9, Apx.58. "By expressly permitting Shelton to exercise her right to file an [EEOC charge]," the court continued, "the agreement itself recognizes that the mere filing of such a charge does not require Shelton to arbitrate." Id. at 9-10 (adding that charge is not "equivalent of a complaint initiating a lawsuit" since its function is "simply to place the EEOC on notice" of possible violation), Apx.58-59. The court further reasoned that the reference to the right-to-sue letter "strongly supports the conclusion" that "the filing of a civil action by the EEOC" does not trigger Shelton's obligation to arbitrate. Opinion at 9, Apx.58. Rather, the court continued, the agreement indicates that Shelton may be required to arbitrate when and if she files a lawsuit or receives a right-to-sue letter or similar administrative determination. "Under these circumstances," the court held, "the Circuit City Dispute Resolution Agreement does not provide authority for the court to compel Shelton to submit to arbitration. She simply did not agree to arbitrate a dispute which at this point exists solely between Circuit City and the EEOC." Id. at 10, Apx.59. Contrary to the argument advanced by Circuit City, the district court concluded that this Court's decisions in Frank's Nursery and Northwest Airlines support Shelton's motion to dismiss Circuit City's action against her. The court reasoned that the cases "indicate . . . that an agreement by the employee to arbitrate does not bind the EEOC[, and if] that is so, then the converse must also be true" -- that "the EEOC's action cannot provide a basis for forcing an employee into arbitration." Opinion at 11-12 (quoting Frank's Nursery, 177 F.3d at 460, for proposition that, where charging party did not intervene in EEOC's action, she "has never really failed, neglected or refused to arbitrate and has thus not breached her agreement"), Apx.60-61. STANDARD OF REVIEW The district court's decisions "regarding both the existence of a valid arbitration agreement and the arbitrability of a particular dispute" are subject to de novo review. Floss v. Ryan's Family Steak Houses, 211 F.3d 306, 311 (6th Cir. 2000), cert. denied, 69 U.S.L.W. 3282 (U.S. Jan. 8, 2001). The refusal to stay litigation between nonarbitrating parties pending the outcome of related arbitration is, however, reversible only for abuse of discretion. Moses H. Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1, 20 n.23 (1982). SUMMARY OF ARGUMENT This appeal encompasses orders in two separate, though consolidated suits: this case -- the Commission's Title VII enforcement action against Circuit City, and Circuit City's suit against the charging party, Julie Shelton, seeking to compel her to arbitrate her private Title VII claims even though she has not attempted to litigate those claims. In the enforcement action, Circuit City is appealing from the district court's interlocutory order denying its motion to compel the Commission to arbitrate its claims, based on Shelton's arbitration agreement, and to stay proceedings in the enforcement action pending arbitration. In the Shelton suit, Circuit City is appealing the dismissal of its action, based largely on the court's determination that, under the terms of its arbitration agreement, Circuit City is not entitled to an order compelling arbitration at this time. This Court should dismiss the interlocutory appeal in the Commission's enforcement action for lack of appellate jurisdiction. There is none. Circuit City purports to base jurisdiction on § 16 of the Federal Arbitration Act, which permits immediate appeal of orders refusing to compel arbitration and to stay proceedings pending arbitration under the FAA. This Court has held, however, that the FAA does not apply to Title VII enforcement actions where, as here, the Commission has not agreed to arbitrate its claims against the employer. Thus, Circuit City's motions were not brought "under" that statute, and § 16 does not provide a jurisdictional basis for this appeal. That § 16 may support the appeal in the Shelton case is not relevant. Even where suits have been consolidated, an appealable order in one case does not support appellate jurisdiction over the other case. Nor is there any other basis for appellate jurisdiction. The order is not a "collateral order" or an "injunction," and mandamus would be inappropriate because the district court's order, far from a "judicial usurpation of power," is fully consistent with this Court's prior decisions. The appeal should therefore be dismissed for lack of jurisdiction. Even if this Court had jurisdiction, Circuit City's arguments should be rejected as wholly lacking in merit. In EEOC v. Frank's Nursery & Crafts, 177 F.3d 448 (6th Cir. 1999), and EEOC v. Northwest Airlines, 188 F.3d 695 (6th Cir.), reh'g en banc denied, 1999 U.S. App. LEXIS 32383 (6th Cir. Dec. 10, 1999), this Court held that the Commission's right to sue based on a charge is not affected by the charging party's arbitration agreement. That holding controls this appeal. If the enforcement action is not affected by the charging party's arbitration agreement, the Commission cannot be compelled to arbitrate its claims nor should its suit be stayed pending arbitration. Circuit City recognizes that its appeal is meritless in light of Frank's Nursery and Northwest Airlines. The company dedicates its brief to urging the Court to "reconsider" those decisions, because the Second and Fourth Circuits have disagreed with this Court about one prong of the Frank's Nursery and Northwest holdings. Unlike this Court, those courts would limit the Commission to seeking injunctive relief in its enforcement actions where, as here, the charging party has signed an arbitration agreement. While we strongly believe that this Court's ruling is correct, even if the company's arguments for "reconsideration" had merit, they have no bearing on this appeal because the damages question -- the point of disagreement among the circuits -- is simply not presented. The order Circuit City is appealing from has nothing to do with damages. On the contrary, the court denied Circuit City's motion to compel the Commission to arbitrate and to stay proceedings in the enforcement action pending arbitration. There is no circuit split on that issue, and neither the Second nor the Fourth Circuit remotely supports an argument for reversal of that order. There is thus no reason for this Court to "reconsider" Frank's Nursery and Northwest Airlines in the context of this appeal. Nor has Circuit City put forward any other credible basis for reversal. Significantly, the company has abandoned any argument that the court below erroneously denied its original motion. Instead, on appeal, the company now asks this Court to decide as an initial matter that it is entitled to a stay in the Commission's enforcement action pending arbitration by Julie Shelton. Ironically, the company makes no affirmative argument to support this new position, either. In fact, there is no basis for this Court to stay the Commission's action. Because the Commission's suit does not fall under the mandatory stay provision in the FAA, a decision whether to stay the action pending arbitration with Shelton would have been left to the sound discretion of the district court. As the party seeking a stay, Circuit City would have been required to establish both that there is a "pressing need for delay" and that neither the Commission nor the public would suffer harm from entry of the order. Circuit City has made no argument as to either point, either in its opening brief or in the court below. At best, its brief could be construed as suggesting that, unless the Commission's suit is stayed while Shelton arbitrates her private damage claim, the company will be deprived of a collateral estoppel or res judicata defense to the Commission's claim for damages. It is doubtful that preclusion principles would apply in such circumstances. Furthermore, any preclusive effect given to arbitral findings in the Commission's enforcement action would cut against the entry of a stay. Only in rare circumstances will one litigant be compelled to stand aside while another litigant settles the rule of law that will define the rights of both. Such rare circumstances would not include the situation here where that litigant is the federal agency charged with enforcing the applicable law. Moreover, and significantly, this Court has held that the Commission's right to sue based on a charge is not affected by the charging party's arbitration agreement, whether or not it would apply to her if she brought suit on her own. Clearly, forcing the Commission to bide its time, while alleged discrimination continues unabated, pending completion of an employer's hypothetical arbitration with an unwilling charging party would substantially "affect" its right to sue. Finally, the Commission's enforcement action should not be stayed pending arbitration by Julie Shelton because, as the district court correctly concluded, Circuit City is not entitled to an order compelling her to arbitrate. The FAA permits a party to compel arbitration only in accordance with the terms of its arbitration agreement. Here, the district court correctly held that, under the terms of Circuit City's agreement, the company could compel arbitration only if Shelton filed a lawsuit or received a right-to-sue letter. The court noted, however, that Shelton has disavowed any intent to litigate and has not received a right-to-sue letter. All she has done is file a charge. The court, then, reasonably concluded that she was not required to arbitrate any claims at this time. Circuit City quibbles with the court's interpretation of its agreement, but has no substantial argument that it is wrong. In any event, § 4 of the FAA -- which Circuit City has invoked in the Shelton suit -- permits compulsory arbitration only where one party has "failed, neglected or refused to arbitrate." As this Court recognized in Frank's Nursery, an individual cannot be said to have "failed, neglected or refused to arbitrate" within the meaning of § 4 where, as here, she has done nothing more than file a charge. A party to an arbitration agreement does not agree to arbitrate any dispute that she might have with her employer; she agrees to arbitrate in lieu of filing a lawsuit. Where, as here, that individual has chosen not to sue at all, that is the end of the matter. Section 4 does not authorize a motion for compulsory arbitration in such circumstances. Any contrary reading of § 4 would trivialize Frank's Nursery and Northwest Airlines and allow an employer like Circuit City to circumvent the reasoning and result in those decisions by simply suing the charging party once the Commission files suit. It would, moreover, undermine the Commission's ability to enforce Title VII. The statutory enforcement scheme depends on employees like Julie Shelton to step forward and alert the Commission to potential violations of the law. There can be no doubt that actions such as Circuit City's here, if endorsed by this Court, would have a chilling effect on employees' willingness to file charges and participate in the Commission's enforcement activities. Because Julie Shelton filed a charge, Circuit City has hauled her into court and forced her to defend her right not to assert a claim. If the company is successful here, she will also be required to go to arbitration -- with all its attendant costs -- despite her attestation that she does not intend to sue. Circuit City suggests that the strong federal policy favoring arbitration justifies its actions. On the contrary, that policy favors arbitration only in accordance with the terms of a valid arbitration agreement, and, as the district court correctly concluded, Circuit City's agreement, whatever its validity, does not obligate Shelton to arbitrate her private claims at this time. To the extent this Court is called upon to balance the competing interests in the liberal federal policy favoring arbitration and the public interest in eliminating discrimination in the workplace in resolving this appeal, the balance should tip conclusively in favor of Title VII. Assuming the Court has jurisdiction over this appeal, therefore, the district court's orders should be affirmed. ARGUMENT I. THIS COURT LACKS JURISDICTION OVER THE INTERLOCUTORY APPEAL OF THE DISTRICT COURT'S ORDER DENYING CIRCUIT CITY'S MOTION TO COMPEL EEOC TO ARBITRATE AND TO STAY PROCEEDINGS IN EEOC'S TITLE VII ENFORCEMENT ACTION PENDING ARBITRATION. Circuit City is attempting to appeal from an interlocutory order denying the company's motion to compel the Commission to arbitrate and to stay proceedings in the Commission's Title VII enforcement action pending arbitration. In its brief to this Court, the company asserts that the Federal Arbitration Act provides a basis for appellate jurisdiction over the appeal. This Court has definitively held, however, that the FAA does not apply to the Commission's Title VII enforcement actions. As the company has not identified any other basis for appellate jurisdiction, and none exists, the appeal must be dismissed for lack of jurisdiction. The first Judiciary Act of 1789, 1 Stat. 73, "established the principle that only final decisions of the federal district courts would be reviewable on appeal." See Carson v. American Brands, 450 U.S. 79, 83 (1981). The law has changed very little since that time -- the general rule remains that a "party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated." See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996); see also 28 U.S.C. § 1291 (providing jurisdiction over appeals from "final decisions of district courts"). A "final judgment" is a decision by the district court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." See, e.g., Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989). In light of this principle, "interlocutory appeals -- that is, appeals before the end of district court proceedings -- are the exception, not the rule." See Johnson v. Jones, 515 U.S. 304, 309 (1995). Absent some specific statutory or judicially created exception authorizing immediate appeal, courts of appeals lack jurisdiction over interlocutory appeals. A litigant who chooses to take an appeal before final judgment must identify the particular exception that provides a basis for appellate jurisdiction. See Selcke v. New Eng. Ins. Co., 2 F.3d 790, 792 (7th Cir. 1993) (appellant bears burden of establishing appellate jurisdiction). Here, the decision that Circuit City is appealing -- an order denying its motion to compel EEOC to arbitrate and to stay proceedings in EEOC's enforcement action pending arbitration -- is plainly not a final judgment. The company was therefore required to identify an alternative basis for appellate jurisdiction. In its brief to this Court, Circuit City purports to base appellate jurisdiction on § 16 of the Federal Arbitration Act ("FAA"). Brief at 3. That provision authorizes appeal of "an order refusing a stay of any action under § 3 of [the FAA]" and "denying a petition [to compel arbitration] under § 4 of [that statute]," see 9 U.S.C. § 16(a)(1), and from "a final decision with respect to an arbitration," see id. at § 16(a)(3). None of these provisions applies. First, § 16(a)(3) is plainly unavailable since there has been no "final decision with respect to an arbitration" in the EEOC enforcement action. More importantly, this Court has held that where, as here, the Commission did not agree to arbitrate its claims against an employer, the FAA "does not apply to Title VII actions" such as this one "brought by the EEOC on behalf of an employee who has signed an arbitration agreement." See Northwest Airlines, 188 F.3d at 701-02. Thus, Circuit City's motion to stay proceedings and compel arbitration in this suit was not properly brought "under" the FAA, as required by § 16(a)(1), and the company cannot rely on the FAA to supply a jurisdictional basis for the appeal in this case.<2> To circumvent this difficulty, the company attempts to blend its appeal in this case with its appeal in Circuit City Stores v. Shelton, to which § 16 does apply. That is unavailing. Although the two cases were consolidated, "consolidated cases remain separate actions." See, e.g., Beil v. Lakewood Eng'g & Mfg Co., 15 F.3d 546, 551 (6th Cir. 1994); see also Johnson v. Manhattan Ry. Co., 289 U.S. 479, 497 (1933) (consolidation "does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another"). An appealable order in one case does not support jurisdiction over an appeal in the other case. See, e.g., Knafel v. Pepsi Cola Bottlers, 850 F.2d 1155, 1159-60 (6th Cir. 1988) (resolving merits of one consolidated case where final judgment had been entered but dismissing appeal in other case because court had not disposed of all claims in that case). Thus, here, Circuit City was required to identify a basis for appellate jurisdiction not only in the Shelton case but also in the enforcement action if it intends to appeal from the decisions in both cases. It has not done so. Rather, it has relied exclusively on § 16 of the FAA, which does not apply in the enforcement action. Nor is there any other basis for appellate jurisdiction over this appeal. Courts have carved out a narrow exception to the final judgment rule for "collateral orders." These are orders which "conclusively determine" a disputed issue that is "completely separate from the merits" of the underlying action, "effectively unreviewable on appeal from a final judgment" and "too important to be denied review." See, e.g., Quackenbush, 517 U.S. at 712. However, the collateral order doctrine does not support appeal in this case because the order Circuit City is appealing does not "conclusively determine" anything -- the court could revisit it at any time. See, e.g., Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 277-78 (1988) (holding that order denying stay in federal suit pending outcome of previously-filed state court litigation is not appealable as collateral order on this ground). The matter also should not be viewed as "too important to be denied review" since, as discussed infra, Circuit City's brief does not even make an affirmative argument that the ruling constitutes an abuse of discretion. The collateral order doctrine likewise provides no basis for appellate jurisdiction because the issue Circuit City seeks to raise -- whether it can be held liable for monetary damages in an EEOC enforcement action -- is neither "completely separate from the merits of the action" nor "effectively unreviewable on appeal from a final judgment." On the contrary, if and when damages are awarded after trial, Circuit City may raise the issue on appeal from final judgment. See, e.g., Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748, 756 (2d Cir. 1998) (issues such as availability of punitive damages are not subject to interlocutory appeal because "they can be reviewed effectively on appeal from final judgment"). Nor is the order immediately reviewable under 28 U.S.C. § 1292(a), which permits interlocutory appeal of orders granting or denying an injunction. An order "that does not specifically refuse an injunction but has the practical effect of doing so may be immediately appealable under § 1292(a)" if the litigant can show that the order "might have serious, perhaps irreparable, consequence" and "can be effectively challenged only by immediate appeal." See Carson, 450 U.S. at 84; Gillis v. United States Dept. of HHS, 759 F.2d 565, 567 (6th Cir. 1985) (adding that § 1292(a) is "only a limited exception to the final judgment rule"). That exception does not apply to the order here, which relates to the district court's control over its own docket. "An order by a federal court that relates only to the conduct or progress of litigation before that court ordinarily is not considered an injunction and therefore is not appealable under § 1292(a)." See Gulfstream, 485 U.S. at 279 (addressing request that proceedings be stayed pending resolution of a related action). Moreover, as discussed infra, Circuit City has made no showing that the order will have "serious, perhaps irreparable, consequence" -- since, as Circuit City admits, the Commission's enforcement action may proceed for injunctive relief, the court's order denying the stay will, at worst, require the company to address damages as well as liability in defending the suit. Finally, the company could not establish appellate jurisdiction by asking that this Court treat its notice of appeal and brief as a petition for a writ of mandamus. A writ of mandamus is an "extraordinary remedy, to be reserved for extraordinary situations . . . amounting to a judicial usurpation of power." See, e.g., Gulfstream, 485 U.S. at 289. The party seeking mandamus has the burden of showing that its right to issuance of the writ is "clear and indisputable." See id. Circuit City cannot meet this stringent standard. The company has cited no authority suggesting that the district court abused its discretion in denying Circuit City's motion; on the contrary, as we discuss below, the court's decision was entirely consistent with this Court's decisions in Frank's Nursery and Northwest Airlines. In sum, there is no basis for appellate jurisdiction over the interlocutory appeal in the Commission's enforcement action. Accordingly, the appeal should be dismissed for lack of jurisdiction. II. EVEN IF THERE WERE APPELLATE JURISDICTION, CIRCUIT CITY'S CHALLENGE TO THE DISTRICT COURT'S ORDER DENYING THE COMPANY'S MOTION IN THE COMMISSION'S ENFORCEMENT ACTION IS MERITLESS. Even if the district court's order in the Commission's enforcement action were properly before this Court for review, Circuit City has provided no basis for reversal. Circuit City has taken an appeal from an order of the district court denying its motion to compel EEOC to arbitrate and to stay proceedings in its Title VII enforcement action pending arbitration. Circuit City has cited no authority -- indeed, it has not even made an affirmative argument -- which supports reversal of that decision. A. Circuit City Does Not Argue That The District Court Should Have Granted The Relief It Requested Below - An Order Compelling EEOC To Arbitrate And A Stay Of This Enforcement Action Pending That Arbitration. Circuit City makes no argument on appeal that the district court should have compelled the Commission to arbitrate. Indeed, the company's opening brief does not even allude to this issue. See Brief at 52 (asking Court to "direct that Shelton arbitrate").<3> In any event, there is no basis for challenging the district court's refusal to compel the Commission to arbitrate. A party may not be compelled to arbitrate if it has not agreed to do so, Volt Info. Servs. v. Board of Trustees, 489 U.S. 468, 478 (1989), and it is undisputed that the Commission has never agreed to arbitrate its claims against Circuit City. Since the Commission is not privy to agreements between the charging party and her employer, see, e.g., EEOC v. Kimberly Clark Corp., 511 F.2d 1352, 1359 (6th Cir. 1975), any such agreement likewise provides no basis for compelling EEOC to arbitrate. See Frank's Nursery, 177 F.3d at 462 ("courts may not treat the agreement of a private party to arbitrate her action as the agreement of the EEOC to arbitrate its action"). In fact, no appellate court has ever held that the Commission may be compelled to arbitrate its claims in these circumstances. See EEOC v. Waffle House, 193 F.3d 805, 812 (4th Cir. 1999)(explicitly rejecting such an argument). Because Circuit City does not argue that EEOC can be compelled to arbitrate, its motion to stay proceedings pending arbitration by the Commission is moot. The district court's order should therefore be upheld. B. Circuit City's New Argument That The EEOC's Enforcement Action Should Be Stayed Pending Arbitration With Shelton Must Also Be Rejected In Light Of Frank's Nursery and Northwest Airlines, And There Is No Reason For This Court To "Reconsider" Those Decisions Here. Rather than renew the arguments rejected by the district court, Circuit City recasts its argument on appeal, asking the Court as an initial matter to stay the Commission's suit pending arbitration by Shelton. Compare Brief at 52 (asking that Court "direct the district court to stay the EEOC's action against Circuit City pending completion of Shelton's arbitration") (emphasis added); with R.7 (first motion to stay and compel arbitration, at 10, stating that "Circuit City respectfully requests that this Court enter an Order staying this litigation until arbitration has been concluded and compelling EEOC to arbitrate the claims for monetary relief on Shelton's behalf") (emphasis added); R.28 (renewed motion, stating that "Circuit City adopts by reference . . . its previously-filed motion"); cf. Brief at 7 n.3 (admitting that company initially "made a request in Circuit City v. Shelton that the court stay proceedings in EEOC v. Circuit City," but later "withdrew [that] request" without discussion, "relying upon the motion to stay proceedings which was pending in EEOC v. Circuit City"). This effort is unavailing for a number of reasons. Because Circuit City failed to make this argument in the district court, it should be deemed waived. See, e.g., Levin v. Childers, 101 F.3d 44, 46-47 (6th Cir. 1996) (argument not properly raised in district court is deemed waived on appeal). If the Court were to reach the question, however, it should refuse to stay the Commission's enforcement action. This Court has held categorically that where, as here, the charging party has not attempted to litigate or otherwise resolve her private claim, "EEOC's right to sue based on [a] charge is not affected by [the charging party's] arbitration agreement, whether or not it would apply to her if she brought suit on her own." Northwest Airlines, 188 F.3d at 702. See also, e.g., Frank's Nursery, 177 F.3d at 466 (holding that an individual "cannot, by making decisions about her own ability to sue for herself, override the power of the EEOC to sue in its own name" and obtain full relief). Circuit City appears to recognize that Frank's Nursery, at least, precludes its argument for a stay pending arbitration with Shelton. Its "Statement of Issues Presented" poses only one question: "[w]ill this Court reconsider EEOC v. Frank's Nursery . . . ?" The bulk of the argument section of Circuit City's brief is devoted to an explicit request that the Court reconsider this Court's decisions in EEOC v. Frank's Nursery & Crafts, 177 F.3d 448 (6th Cir. 1999), and EEOC v. Northwest Airlines, 188 F.3d 695 (6th Cir.), reh'g en banc denied, 1999 U.S. App. LEXIS 32383 (6th Cir. Dec. 10, 1999). Since Frank's Nursery and Northwest Airlines are the law of the circuit, Circuit City's disagreement with those decisions cannot provide a basis for the panel hearing this appeal to reverse the district court. See, e.g., United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000)(subsequent panel of this Court is bound by earlier panel decision unless it has been overruled by the Supreme Court). Accordingly, Circuit City's extended attack on Frank's Nursery and Northwest Airlines must be seen as merely a preview of a request for rehearing en banc to follow the panel's decision in this appeal in the hope that the panel will criticize those decisions. Contrary to the impression created by Circuit City, however, this Court's decisions in Frank's Nursery and Northwest Airlines are sound and well reasoned.<4> In those cases, this Court held that at least to the extent the charging party has not otherwise attempted to resolve her private claims, the Commission may seek a full range of Title VII remedies in an enforcement action based on her charge, whether or not an arbitration agreement might preclude her from bringing suit on her own. See, e.g., Northwest Airlines, 188 F.3d at 702.<5> The Court reasoned that the Commission "pursues an interest broader than the one a private Title VII litigant pursues" -- the Commission "brings suit on behalf of an aggrieved individual not only for the benefit of that individual but also to represent the public interest." Northwest Airlines, 188 F.3d at 701; Frank's Nursery, 177 F.3d at 458. Finally, the Court concluded that, to the extent the Commission has not agreed to arbitrate its claims against the employer, allowing EEOC to litigate and obtain full relief in the few selected cases that it brings would "in no way undermine[] the purposes of the FAA." See, e.g., Northwest Airlines, 188 F.3d at 701; Frank's Nursery, 177 F.3d at 459-60. In its brief to this Court, Circuit City takes the position that the Commission's enforcement action may proceed for injunctive relief, but not damages, despite the fact the charging party has chosen not to individually resolve her private damage claims. In support of this position, the company cites to decisions from two other circuits which disagree with this Court on this narrow damages question, holding that the Commission may seek only injunctive relief in such circumstances. See EEOC v. Waffle House, 193 F.3d 805 (4th Cir. 1999) (ADA); EEOC v. Kidder, Peabody & Co., 156 F.3d 298 (2d Cir. 1998) (ADEA).<6> According to these courts, the federal policy favoring enforcement of private arbitration agreements trumps whatever public interest is served by subjecting discriminating employers to monetary remedies for employment discrimination. Thus, private parties, by entering into mandatory pre-dispute agreements to arbitrate their individual claims, may, in effect, strip the Commission of its authority to obtain monetary relief in its enforcement actions. As we explained in our brief in response to the en banc rehearing petition in Northwest Airlines, see generally EEOC's Brief in C.A. No. 98-1667 (filed Nov. 18, 1999), we believe that this Court's precedent correctly balances the competing policies underlying Title VII and the FAA. We submit that, on the narrow issue where this Court's approach differs from that in Waffle House and Kidder, Peabody, this Court got it right. Not only does this Court's ruling effectuate the purposes of Title VII but it is firmly grounded in the law. See, e.g., General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (holding that EEOC actions "at the behest of and for the benefit of specific individuals" vindicate the public interest); H.R. Rep. No. 40, 102d Cong., 1st Sess., pt.1, at 69 (explaining need to amend Title VII to provide for compensatory and punitive damages: "Back pay as the exclusive monetary remedy under Title VII has not served as an effective deterrent, and, when back pay is not available, . . . there is simply no deterrent."). In contrast, the approaches taken by the Fourth and Second Circuits are legally flawed and judicially inefficient. While acknowledging that the Commission sues in the public interest, those courts assert without support that an award of damages does not substantially further the public interest. This distinction is insupportable. While injunctive relief is an important means of redressing and preventing discrimination, it is no substitute for damages. In the Northwest Airlines case, for example, a consent decree barring racial harassment and discrimination was in effect throughout the time the alleged racial harassment occurred. Clearly, limiting the Commission to seeking yet another injunction would not suffice to eliminate the discrimination. Rather, as the Supreme Court has recognized, "[it] is the reasonably certain prospect of [monetary relief] that provide[s] the spur or catalyst which causes employers . . . to endeavor as far as possible to eliminate [their discriminatory practices]." Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975).<7> Furthermore, Waffle House and Kidder, Peabody create a highly inefficient means of resolving discrimination claims. Under these decisions, an employer may be required to defend itself in multiple proceedings, a judicial action for the EEOC's injunctive relief and one or more arbitrations for monetary claims of individual victims. The better result is the one reached by this Court: to the extent the charging party has not privately resolved her claim, EEOC may obtain all appropriate relief, monetary and injunctive, in a single action in federal court without regard to any arbitration agreement between the employer and its employees. Even if there were more merit to Circuit City's argument that this Court should accede to the view of the Fourth and Second Circuits on the question of damages, however, it would not affect the outcome here. The question of whether Circuit City may eventually be subject to a damage award in the Commission's enforcement action is simply not presented in this interlocutory appeal. The decision that Circuit City has appealed from does not address the question of relief. Circuit City moved for an order compelling the Commission to arbitrate all of its claims and to stay all proceedings in the enforcement action pending arbitration. The district court denied the motion. Thus, to the extent there is appellate jurisdiction, the issue before the Court is whether that order should be reversed. There is no circuit conflict on the questions actually presented below by Circuit City and resolved by the district court. Neither Waffle House nor Kidder, Peabody supports reversal of the court's decision. Nor, indeed, has either court suggested that an EEOC enforcement action should be stayed pending hypothetical arbitration of the charging party's private claims. As noted above, Waffle House explicitly rejected an argument that the Commission should be compelled to arbitrate in the absence of an arbitration agreement to which it is a party. See 193 F.3d at 811-13 (noting that "Waffle House cannot succeed in its motion to compel the EEOC to arbitrate"). In addition, both courts hold that an EEOC enforcement action should be permitted to proceed to judgment, albeit only for injunctive relief, notwithstanding any arbitration agreement between the charging party and the employer, and Kidder, Peabody expressly suggests that judgment in the Commission's suit should precede private damage arbitrations. See 156 F.3d at 303; see also Waffle House, 193 F.3d at 813 (EEOC's suit for injunctive relief "should not be affected" by individual's actions in entering into private arbitration agreement). This Court should therefore decline Circuit City's invitation that it "reconsider" Frank's Nursery and Northwest Airlines at this juncture. Because the challenged aspect of those decisions is not presented, the ruling Circuit City seeks would constitute, at best, an advisory opinion. C. The Fact That Circuit City Has Sued Shelton Seeking To Compel Her To Arbitrate Does Not Provide A Basis For Distinguishing This Court's Precedent Or Staying The EEOC's Enforcement Action. While the only issue expressly presented in Circuit City's appellate brief is a plea to overrule Frank's and Northwest Airlines, Brief at 4, the company states in one section of its argument that this case requires the Court to address the issue of the effect of a private arbitration agreement on an EEOC enforcement action "in a manner which the Court was not upon to address in either Frank's Nursery or . . . Northwest Airlines" because Circuit City brought an action against Shelton seeking to compel her to arbitrate. Id. at 32. It is not clear whether Circuit City is arguing that Frank's Nursery and Northwest Airlines do not control this appeal because, unlike the Frank's defendant, Circuit City has separately sued Shelton, or whether the company is simply advancing this as another reason why those decisions should be reconsidered. Regardless of which argument Circuit City intends to make, the fact that it initiated an action against Shelton should have no effect on its appeal. An argument that an employer like Circuit City can avoid the consequences of Frank's Nursery and Northwest Airlines by the simple expedient of bringing an action to compel arbitration against the charging party trivializes those decisions. This Court held in those cases that, because of the statutory authority vested by Congress in the EEOC, the agency can proceed with an enforcement action against an employer notwithstanding any private arbitration agreement between the employer and the aggrieved individual. Circuit City appears to be arguing that, notwithstanding this Court's holding that the EEOC cannot be compelled to arbitrate its claims pursuant to a private arbitration agreement, Shelton should be compelled to arbitrate, even though she has done nothing except file a charge, and EEOC's enforcement action should be stayed pending that arbitration and then should be controlled by the arbitrator's decision. Under this view, the EEOC's authority to proceed with an enforcement action in court would be largely illusory since it could be easily circumvented by an employer. This argument fails for two fundamental reasons. First, whether or not Shelton could be compelled to arbitrate, there is no basis for staying the EEOC's enforcement action pending any private arbitration. Second, as the district court correctly ruled, Shelton may not be compelled to arbitrate since she has not initiated any adversarial proceedings against Circuit City. 1. The Commission's Enforcement Action Should Not Be Stayed. Regardless of whether Shelton could be compelled to arbitrate with Circuit City, there is no basis for staying EEOC's enforcement action. As noted above, this Court has held that "EEOC's right to sue based on [a] charge is not affected by [the charging party's] arbitration agreement, whether or not it would apply to her if she brought suit on her own." See Northwest Airlines, 188 F.3d at 702. The relief Circuit City seeks would clearly "affect" the EEOC's right to sue based on the allegations in Shelton's charge by delaying the enforcement action, at the very least, and, as the company acknowledges, by permitting it to attempt to use the arbitrator's decision to limit the relief the EEOC may obtain. In the district court, Circuit City argued only that it was entitled to a stay under the FAA. However, the mandatory stay provision in the FAA, 9 U.S.C. § 3, does not apply to suits brought by parties who, like the Commission, have not agreed to arbitrate. See Northwest Airlines, 188 F.3d at 701 (FAA does not apply to Title VII actions such as this one); see also Zimmerman v. International Cos. & Consulting, Inc., 107 F.3d 344, 346 (5th Cir. 1997) (stating that § 3 is inapplicable where persons are not bound by arbitration agreement). On appeal Circuit City does not clearly state the basis for its request for a stay. Where, as here, a stay is not compelled by the FAA, the decision whether to stay an action pending arbitration is "left to the district court . . . as a matter of discretion to control its docket." See Moses H. Cone Memorial Hospital, 460 U.S. at 20 n.23, citing Landis v. North American Co., 299 U.S. 248, 254-55 (1936). Since parties have "a right to a determination of [their] rights and liabilities without undue delay," however, courts should "tread carefully" in deciding to grant a stay, and be "particularly hesitant" where the stay might "disrupt a statutory or administrative timetable." See Ohio Env'tal Council v. United States Dist. Ct., 565 F.2d 393, 395 (6th Cir. 1977). The "burden is on the party seeking the stay to show that there is a pressing need for delay and that neither the other party nor the public will suffer harm from entry of the order." See id. Thus, to obtain a stay of EEOC's Title VII enforcement action pending arbitration of Shelton's private claims, Circuit City was required to persuade the court below that it had a pressing need for delay and that neither the Commission nor the public would suffer harm from entry of such an order. Then, to justify reversal on appeal, the company would have to show that the court abused its broad discretion in refusing to grant a stay. However, the company has not affirmatively argued this issue -- the brief is silent as to the applicable standard of review, and the company has not attempted, either here or below, to show either "pressing need" or "lack of harm." The only contention in the Circuit City's brief which arguably goes to "need" is its claim that unless Shelton is forced to arbitrate her private Title VII damage claims before EEOC's enforcement action is resolved, the company will be deprived of a potential res judicata or collateral estoppel defense to the Commission's claim for monetary relief. See Brief at 35 ("Had Shelton fulfilled her contractual obligation to arbitrate her controversy with Circuit City, her claims for individual monetary relief appropriately would have been decided in the arbitral forum [and] principles of res judicata and collateral estoppel would have prevented the EEOC from seeking the same recovery."). The premise underlying such an argument is flawed. As discussed infra, since Shelton has chosen not to litigate her private Title VII claims, Circuit City was not entitled to resolve those claims in an arbitral forum. Moreover, even if arbitration could be compelled, there is "considerable doubt" as to whether arbitration proceedings can ever have preclusive effect on the litigation of claims not subject to arbitration. See Frank's Nursery, 177 F.3d at 463 n.8 (citing Dean Witter Reynolds v. Byrd, 470 U.S. 213, 222 (1985) ("it is far from certain that arbitration proceedings will have any preclusive effect on the litigation of nonarbitrable federal claims"); McDonald v. City of West Branch, 466 U.S. 284, 287 (1984) (court should not afford res judicata or collateral estoppel effect to arbitral award in later § 1983 suit)). Ironically, the Second Circuit -- which Circuit City elsewhere urges this Court to follow -- suggests that preclusion (and a stay) should go the other way. Specifically, the Court recommended that where, as here, the employee is unwilling to proceed on her own behalf, EEOC's suit should proceed to judgment on its claim for injunctive relief and, if liability is established, the employee could pursue individual relief through arbitration "armed with a federal court's finding of discrimination, which would certainly have collateral estoppel effect in the arbitral proceeding." See Kidder, Peabody, 156 F.3d at 303. Circuit City cites to Merrill, Lynch, Pierce, Fenner & Smith v. Nixon, 210 F.3d 814, 818-19 (8th Cir.), cert. denied, 121 S. Ct. 383 (2000), for its view that preclusion principles would apply, see Brief at 35, but that is not the majority rule, and there is contrary precedent even in the Eighth Circuit. See Bell v. Conopco, 186 F.3d 1099, 1102 (8th Cir. 1999) (jury may disregard arbitral decision). Furthermore, to the extent preclusion principles would apply, that militates against entry of a stay. "Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both." See Landis, 299 U.S. at 255. Such "rare circumstances" would not include the situation here, where the other litigant is the federal agency charged with enforcing the applicable law. Cf. Ohio Environmental Council, 565 F.2d at 395 (suggesting that stay would be inappropriate where it would disrupt a statutory or administrative scheme). Circuit City thus could not establish that it has a "pressing need for delay" based on any purported right to preclude a jury from awarding damages in the Commission's enforcement action. Nor can the company show that entry of a stay under the circumstances in this case would not harm the Commission or the public, even assuming preclusion principles do not apply. Congress has charged the Commission with enforcing Title VII against private employers and, in that regard, has authorized the Commission to bring suit in federal court, seeking a full range of relief, to vindicate the public interest in eliminating discrimination in the workplace. See 42 U.S.C. § 2000e-5. While private actions are also available, Congress intended that the Commission would bear the "primary burden of litigation" under the statute. See General Telephone, 446 U.S. at 325-26; see also Frank's Nursery, 177 F.3d at 456-459 (discussing EEOC's authority). Circuit City's scheme would turn this framework on its head, giving it and other employers substantial control over the Commission's enforcement activities. Anytime the Commission challenged discrimination in a workplace covered by an arbitration agreement, the employer could stay the enforcement action pending arbitration of employees' private claims. In the meantime, the discriminatory practices could continue unabated. Where, as here, the district court refused to compel arbitration and impose a stay, appeal of those rulings would further stall the resolution of the EEOC's claims. Clearly, these effects -- as well as any potential preclusion -- would harm the Commission's ability to enforce the law and, so, the public interest in eliminating discrimination in the workplace. Cf. Frank's Nursery, 177 F.3d at 459 ("[t]o empower a private individual to take away [EEOC's] congressional mandate, by entering into private arbitration agreements . . ., would grant that individual the ability to govern whether and when the EEOC may protect the public interest and further our national initiative against employment discrimination"). Accordingly, assuming it has jurisdiction over this appeal, we urge this Court to hold that the district court did not abuse its discretion but in fact correctly rejected Circuit City's motion to stay proceedings in the Commission's Title VII enforcement action pending arbitration. 2. The District Court Correctly Ruled That Julie Shelton May Not Be Compelled To Arbitrate With Circuit City Since She Has Disavowed Any Intention To Litigate Any Private Title VII Claims She May Have. The district court's decision in this case should also be upheld because Julie Shelton may not be compelled to arbitrate with Circuit City. As noted above, Circuit City is appealing not only the denial of its motions in the enforcement action but also the dismissal of its affirmative suit seeking to compel the charging party, Julie Shelton, to arbitrate her private Title VII "claims." In the Shelton case, the district court concluded that Shelton may not be compelled to arbitrate any private claims she may have since she has initiated no adversary proceedings against Circuit City and has expressly disavowed any intention to do so in the future. This ruling is consistent with the language of Circuit City's arbitration agreement, as well as this Court's case law and the policies underlying Title VII and the FAA. Since there is no basis for compelling Shelton to arbitrate, any suggestion that the Commission's suit should be stayed pending completion of that arbitration is likewise baseless. The FAA was enacted to "reverse the longstanding judicial hostility to arbitration agreements" and to "place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). The Act declares that written agreements to arbitrate specific controversies "shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract," 9 U.S.C § 2, and allows a party to such an arbitration agreement to "petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement." See id. at § 4. Section 4 does not, however, "confer a right to compel arbitration of any dispute at any time." See Volt Information Sciences, 489 U.S. at 474; see also Dean Witter Reynolds v. Byrd, 470 U.S. 213, 219 (1985) ("The Act, after all, does not mandate the arbitration of all claims but merely the enforcement -- upon motion of one of the parties -- of privately negotiated arbitration agreements."). Rather, it "simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms." See Volt Information Sciences, 489 U.S. at 474, 478; see also Mastrobuono v. Shearson, Lehman, Hutton, 514 U.S. 52, 57-58 (1995) ("FAA's pro-arbitration policy does not operate without regard to the wishes of the contracting parties"). The "duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that [the particular agreement] does in fact create such a duty." AT&T Tech., Inc. v. Communications Workers of America, 475 U.S. 643, 649 (1986). Thus, a court may order arbitration only upon concluding that a particular dispute falls within the scope of a valid agreement executed by the parties and, where the duty to arbitrate is contingent upon any conditions, that all such conditions have been met. Consistent with that principle, in ruling on Circuit City's petition to compel Shelton to arbitrate, the district court here did not determine only that the Dispute Resolution Agreement covers Title VII claims for sexual harassment and retaliation. See Opinion at 5-7 (rejecting Circuit City's argument for limited review), Apx.54-56. But cf. Brief at 36-37 (arguing that court should have considered only whether parties executed agreement and, if so, whether claim falls within scope of agreement). Instead, the court properly went on to analyze the terms of the agreement to determine both when Shelton's duty to arbitrate would arise and when Circuit City would have the right to compel arbitration. Based on this analysis, the court held, correctly in our view, that Shelton's duty to arbitrate, and Circuit City's corresponding right to compel arbitration, were contingent upon conditions that had not yet been satisfied. See id. at 8-10, Apx.57-59. Accordingly, the court held that Circuit City was not entitled to an order compelling Shelton to arbitrate her private Title VII claims. The court noted that the agreement acknowledges that Shelton may file a charge with the Commission or other similar agency but specifies that she must arbitrate "upon receipt of a right-to-sue letter or similar administrative determination." Opinion at 9, Apx.58. The court reasoned that, because the agreement stipulates that Circuit City may seek a court order compelling arbitration if Shelton "file[s] a lawsuit," its right to do so was contingent upon either her filing a lawsuit or her receipt of a notice of right to sue. See id. at 9-10, Apx.58-59. Since Shelton neither filed suit nor received a right-to-sue letter, the court concluded that Circuit City could not yet compel her to arbitrate any claim. In its brief to this Court, Circuit City does not directly challenge the court's reasoned interpretation of its agreement. Instead, the company misreads the decision, suggesting that the court held that Shelton would not be permitted to arbitrate until she received a notice of right to sue. Brief at 39-43. That is simply wrong. Since Circuit City's right to compel arbitration hinges on her failure to arbitrate once the duty to do so arose, the court was concerned with what would trigger Shelton's obligation, not her ability, to arbitrate. In light of the language stating that she must arbitrate "upon receipt of a right-to-sue letter," the court reasonably concluded that, unless she filed a lawsuit, she could not be compelled to arbitrate before receiving such a letter. Whether Shelton could choose to arbitrate without a right-to-sue letter -- and, indeed, without filing a charge -- is irrelevant to any issue the court was deciding. The company also argues that the term "a right-to-sue letter or similar administrative determination" in the agreement includes an "EEOC's reasonable cause determination." Brief at 43. Thus, the argument goes, Shelton was required to arbitrate as soon as the Commission issued its cause determination. This argument is meritless. It is axiomatic that when "general words follow the enumeration of specific words" in a statute or contract, "courts are to construe the general words in a manner that limits them to the same class of things enumerated by the preceding specific words." See, e.g., Allinder v. Intercity Prods. Corp., 152 F.3d 544, 549 (6th Cir. 1998) (citing 2A SUTHERLAND'S STATUTORY CONSTRUCTION § 47.17, at 166), cert. denied, 525 U.S. 1178 (1999). Applying this principle, the district court reasonably concluded that the phrase "a right-to-sue letter or similar administrative determination" refers to "administrative determinations" which, like a "right-to-sue letter," would enable Shelton to bring a private lawsuit. See 42 U.S.C. § 2000e-5(f)(1) (party may sue within 90 days of receiving notice of right to sue). This reading makes particular sense since the agreement also uses the term "administrative charges" to mean charges that individuals may file with the EEOC or "similar federal, state or local agency." Since an EEOC "right-to-sue letter" permits a charging party to file suit, the phrase "or similar administrative determination" logically refers to the documents that "similar federal, state or local agenc[ies]" may issue which likewise permit the filing of a private suit. In contrast, a reasonable cause determination triggers the conciliation process, 42 U.S.C. § 2000e-5(b), and, so, is dissimilar in both purpose and effect. Alternatively, Circuit City contends that Shelton was obligated to arbitrate once the Commission filed suit based on the allegations in her charge. See Brief at 39, 43. If, by this, the company means that an EEOC enforcement action is a type of "administrative determination" triggering Shelton's duty to arbitrate, the district court reasonably rejected such a reading of the agreement, based on its interpretation of the phrase "administrative determination," discussed above. See Opinion at 9-10, Apx.58-59. Even if there were some ambiguity, it is well settled that courts "should construe ambiguous language against the interest of the party who drafted it." See Mastrobuono, 514 U.S. at 63 (discussing language in arbitration agreement). Thus, if Circuit City intended that an employee's obligation to arbitrate could be triggered by EEOC's filing of an enforcement action, it should have spelled that out explicitly in drafting the agreement. If, on the other hand, Circuit City is arguing that Shelton has asserted her private claim in the Commission's enforcement action, such an argument reflects a misunderstanding of Title VII. As a consequence of the statute's enforcement scheme, a Title VII violation effectively gives rise to two claims, one belonging to the Commission and the other belonging to the charging party. See, e.g., General Telephone, 446 U.S. at 326 (noting, inter alia, that EEOC "is not merely a proxy for the victims of discrimination, and its suits should not be considered representative actions"). This was a deliberate decision by Congress to facilitate enforcement of Title VII. Congress expressly authorized the Commission to bring suit in its own name, not the charging party's, and to seek all remedies the statute provides. Recognizing, however, that the Commission's goal of vindicating the public interest may diverge from the private goals of individual victims, see General Telephone, 446 U.S. at 332, Congress also provided individuals with a statutory right to intervene in EEOC actions, to assert their own private claims and protect their private interests. See 42 U.S.C. § 2000e-5(f)(1); see generally Frank's Nursery, 177 F.3d at 456-64 (explaining purpose and effect of amendments). If the Commission were simply litigating the individual's private claim, intervention would be neither necessary nor possible -- that claim would already be before the court. Thus, in the enforcement action, the Commission did not allege "Shelton's claim" but rather its own. Since Shelton has not intervened, her private claim has not been alleged. Cf. Frank's Nursery, 177 F.3d at 464-65 (noting that charging party cannot be said "to have elected the remedy pursued by the EEOC" since the Commission determines the scope of its enforcement actions under Title VII). Finally, Circuit City argues that the court should have ordered Shelton to arbitrate, without regard to the terms of the agreement, under the plain terms of § 4 of the FAA. Brief at 34-35. As noted above, that provision permits "a party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement to arbitrate" to petition a court for "an order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. Circuit City takes the position, without citation to relevant authority, that it is "a party aggrieved" -- that it has suffered a legal wrong and, so, may compel arbitration -- because Shelton has chosen not to assert a private claim in any forum. See Brief at 34-36.<8> Even assuming Circuit City would otherwise be considered a "party aggrieved" in these circumstances (which it would not), the argument is belied by the language of § 4 itself -- that provision permits an aggrieved party to compel arbitration only in accordance with the terms of its agreement. As noted above, under the terms of its agreement, Circuit City is not entitled to compulsory arbitration here because the conditions precedent to such an action have not been satisfied -- Shelton has neither filed lawsuit nor received a right-to-sue letter. Even if the agreement's terms were different, however, Circuit City's argument would fail under this Court's analysis of § 4 in Frank's Nursery, 177 F.3d at 459-60. Like Circuit City, the defendant in Frank's Nursery sought an order compelling arbitration even though the charging party had "neither initiated a grievance nor sought to intervene in the EEOC action once filed." See 177 F.3d at 459. Noting that the charging party had not "raised a claim" against the defendant at all, the Court reasoned that she had "never really failed, neglected or refused to arbitrate" within the meaning of § 4 and "thus [had] not breached her agreement" with the defendant. See id. at 459-60. Accordingly, the Court concluded that neither a motion nor an order compelling her to arbitrate could properly be based on that provision. Circuit City attempts to distinguish Frank's Nursery on the ground that the defendant there, unlike Circuit City, never filed a separate action against the charging party. See Brief at 32-33. Although Frank's Nursery notes that the charging party could not be ordered to arbitrate since she was not before the court, the Frank's Court also held, in reasoning equally applicable to this case, that an employer may not compel arbitration under the FAA in circumstances indistinguishable from this case. An employee who signs an arbitration agreement does not agree to arbitrate discrimination claims in lieu of doing nothing (other than file a charge); she agrees to arbitrate in lieu of filing a private suit. Cf. Farrand v. Lutheran Bhd., 993 F.2d 1253, 1254 (7th Cir. 1993) (recognizing that an enforceable arbitration agreement simply means that individual may not pursue claim in court); see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628 (1985) (noting that party to arbitration agreement merely agrees to resolve her claims in "an arbitral, rather than a judicial, forum"); Frank's Nursery, 177 F.3d at 464 ("[b]y signing her arbitration agreement, [the charging party] merely traded a judicial forum for an arbitral forum"). If she chooses not to sue, that is the end of the matter. In contrast, Circuit City's interpretation of § 4, if adopted by this Court, would convert the provision into a weapon that employers like Circuit City could use against injured employees like Julie Shelton who file charges with the Commission. Cf. Bill Johnson's Restaurant v. NLRB, 461 U.S. 731, 740 (1983) (noting that by bringing suit against charging party, "an employer can place its employees on notice that anyone who [engages in protected activity] is subjecting himself to the possibility of a burdensome lawsuit"). This, in turn, would deter employees from filing charges or assisting in the Commission's enforcement activities, and, in turn, undermine enforcement of Title VII. Under Title VII's enforcement scheme, the Commission is largely dependent on aggrieved individuals to provide notice of potential violations. Frank's Nursery, 177 F.3d at 457 ("EEOC depends on the filing of charges for notification of possible discrimination"); see also Parker v. Baltimore & Ohio Ry. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981) (scheme "relies heavily on the initiative of aggrieved employees"); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969) ("filing of charges and the giving of information by employees [are] essential to [EEOC's] administration of Title VII" and "the carrying out of the congressional policy embodied in the Act"). However, effective enforcement can be expected only "if employees [feel] free to approach officials with their grievances." Mitchell v. Robert DeMario Jewelry, 361 U.S. 288, 292 (1960) (discussing similar provision in FLSA). Fear of reprisal may deter employees from filing charges and, so, impair the Commission's ability to uncover and redress Title VII violations. There can be no doubt that Circuit City's actions in this case, if endorsed by this Court, could have a chilling effect on employees' willingness to come forward and alert the Commission to possible violations of Title VII. If the facts in the Commission's complaint are taken as true, Shelton was the victim of sexual harassment by her store manager throughout her tenure with Circuit City; in time, the conditions of her employment became so intolerable that she was forced to quit. R.22, First Amended Complaint at 1-3, Apx.166-68. In accordance with the language in Circuit City's arbitration agreement and her rights under federal law, she then filed a charge, alerting the Commission to the discrimination she experienced. However, she made no attempt to sue the company or intervene in the Commission's enforcement action. She simply cooperated with the investigation and acquiesced when the Commission independently decided to bring an enforcement action based on the allegations in her charge.<9> Circuit City has not asserted that it routinely sues employees who choose not to litigate private disputes they may have with the company. Nevertheless, when Shelton chose not to litigate her private Title VII claim, Circuit City hauled her into court. She was forced to hire an attorney and defend herself not only in the district court but also in this appeal, incurring all the costs, both financial and personal, that flow from litigation. If Circuit City were successful in its efforts to compel her to arbitrate, this stress, expense and aggravation would continue through the arbitration process -- even though she has done nothing more than file a charge. Circuit City implies that the strong federal policy favoring arbitration justifies its actions. See, e.g., Brief at 32-34 & passim. However, the company ignores the fact that the FAA requires courts to enforce arbitration agreements only "in accordance with their terms." See Volt Information Sciences, 489 U.S. at 474, 478. The terms of Circuit City's agreement do not obligate Shelton to arbitrate any claims against the company at this time. Thus, to the extent this Court is called upon to "balance the competing interests in the liberal federal policy favoring arbitration" and the public interest in eliminating discrimination in the workplace in resolving this appeal, see Brief at 34, the balance should tip conclusively in favor of Title VII. Accordingly, the district court correctly determined that Circuit City cannot compel Shelton to arbitrate any claims until and unless she files a lawsuit against the company. Since Shelton cannot be compelled to arbitrate, there is no basis for staying the Commission's enforcement action. Thus, assuming it has jurisdiction over the appeal, the district court's order should be affirmed and the appeal dismissed as wholly lacking in merit. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to dismiss the appeal of the Commission's suit against Circuit City for lack of appellate jurisdiction or, if jurisdiction exists, to affirm the denial of Circuit City's motion to stay the Commission's enforcement action pending arbitration and remand the suit to the district court for further proceedings. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _____________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7014 Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule 32, I certify that the foregoing answering brief was prepared using Courier New (monospaced) font, 12 point, and contains 13,561 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Corel Word Perfect 8 word counting program. ___________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two copies of the Commission's Brief as Appellee were sent this 12th day of March, 2001, by first class mail, postage prepaid, to the following attorneys of record: Daniel C. Brubaker MIKA, MEYERS, BECKETT & JONES, P.L.C. 200 Ottawa Avenue, N.W., Suite 700 Grand Rapids, MI 49503 Charles S. Mishkind MILLER, CANFIELD, PADDOCK & STONE, P.L.C. 1200 Campau Square Plaza 99 Monroe Avenue, N.W. Grand Rapids, MI 49503 David E. Nagle LECLAIR RYAN 707 East Main Street, 11th Floor Richmond, VA 23219 Pamela G. Parsons Circuit City Stores, Inc. 9950 Maryland Drive Richmond, VA 23233 John R. Runyun SACHS, WALDMAN, O'HARE, HELVESTON, BOGAS & McINTOSH, P.C. 1000 Farmer at Bates Detroit, MI 48226 ______________________________ Barbara L. Sloan ADDENDUM APPELLEE'S DESIGNATION OF APPENDIX CONTENTS Pursuant to Sixth Circuit Rule 11(b) & (f), the Equal Employment Opportunity Commission hereby designates the following filings in the district court, not already designated by Circuit City, as items to be included in the joint appendix: Docket Entry Description of Item Filing Date Number Circuit City's [2 page] Motion to Enjoin the EEOC, E.D. Va. (filed April 8, 1999), EEOC's Response to Order to Show Cause, Exh.4 8/6/99 R.10 This document was properly made a part of the record below. Respectfully submitted, ______________________________ Barbara L. Sloan Attorney, Equal Employment Opportunity Commission 1 The company had previously attempted, unsuccessfully, to persuade a federal district court in Virginia to enjoin the Michigan action. See R.10, Exh. 4 (motion), Apx.88; Exh. 8, at 107-10 (excerpt from hearing transcript, discussing motion for injunction). That court was presiding over a suit that Circuit City had brought against the Commission which was later dismissed for lack of subject matter jurisdiction. See Circuit City Stores v. EEOC, No. 99-2360, 2000 WL 162448, at *1 (4th Cir. Oct. 31, 2000) (agreeing that district court "lacked subject matter jurisdiction" over case) (unpublished). 2 Circuit City may argue that § 16 provides for immediate review of any motion to compel arbitration and stay proceedings pending arbitration, however baseless such a motion might be. In fact, to support jurisdiction over an interlocutory appeal, the underlying motion must have at least a "colorable" basis. Cf. United States v. Pi, 174 F.3d 745, 747-48 (6th Cir. 1999) (to take immediate appeal from denial of motion to dismiss indictment on double jeopardy grounds, motion must have "colorable" basis). 3 Because Circuit City does not argue in its opening brief that the district court erred in denying its motion to compel EEOC to arbitrate and to stay the EEOC's enforcement action pending that arbitration, it has waived these arguments. See United States v. Samour, 199 F.3d 821, 822 n.1 (6th Cir. 1999) (appellant is deemed to have waived arguments not raised in its opening brief). 4 Circuit City mischaracterizes this Court's decision in Frank's Nursery, 177 F.3d 448, as holding that "even when the EEOC brings a Title VII lawsuit on behalf of an individual . . . seeking purely monetary relief (backpay, compensatory and punitive damages for the former employee, the EEOC's enforcement action supersedes the legal rights of both the individual and her employer to enforce an agreement to arbitrate the claim." See Brief at 15; see also id. at 19. The case holds no such thing. First, the Commission in Frank's Nursery was not "seeking purely monetary relief"; as in this case, the Commission was also seeking to enjoin alleged violations of Title VII. Second, and critically, this Court in no way suggested that an employee is not completely free to pursue her private claim in arbitration if she so chooses. What this Court rejected -- and no court has accepted -- is the idea that an individual who has chosen not to sue, or arbitrate, or otherwise resolve her claim privately may nevertheless be compelled to arbitrate. 5 As if responding to something we have argued to this Court, Circuit City asserts, cryptically, that EEOC has attempted to characterize this Court's decision in EEOC v. Northwest Airlines, 188 F.3d 695 (6th Cir. 1999), as an independent affirmation of the holding in Frank's Nursery. However, Frank's Nursery was settled without an appeal, and it of course was binding on the panel which decided Northwest Airlines, as noted therein. Brief at 27 n.13. This makes no sense. Frank's Nursery was not "settled without an appeal." Frank's Nursery is the appellate decision in that case -- this Court reversed the district court's dismissal of the Commission's enforcement action. As for whether Northwest Airlines is "an independent affirmation of the [Frank's] holding," those are not our words; we are unsure what an "independent affirmation" is. What is true, however, is that the Northwest panel endorsed the reasoning and result in Frank's, and this Court denied Northwest's request for en banc rehearing. See 6th Circuit docket entry dated Dec. 10, 1999, in C.A. No. 98-1667 (denying rehearing en banc). 6 Circuit City also cites to Merrill, Lynch, Pierce & Smith v. Nixon, 210 F.3d 814, 818-19 (8th Cir.), cert. denied, 121 S. Ct. 383 (2000), where the Eighth Circuit discussed Kidder, Peabody and Waffle House in holding that an adverse determination by an arbitrator on an individual's private claim has preclusive effect in subsequent administrative proceedings by a state FEP agency. The discussion of Kidder, Peabody and Waffle House relied on by Circuit City is clearly dicta; the holding in Merrill, Lynch has no bearing on this case where the charging party has not resolved her private claim. 7 In defending the Fourth and Second Circuits' position, Circuit City cites, as support for this argument, a snippet from an EEOC enforcement guidance which, it claims, demonstrates that the Commission "acknowledge[s] a distinction between the pursuit of individual monetary relief and vindication of the public interest." See Brief at 46 n.18 (quoting EEOC: Enforcement Guidance on Waivers, 8 FEP Manual (BNA) 405:7491, 7493). On the contrary, the quoted language -- which was lifted from a guidance addressing settlement of existing claims, rather than pre-dispute arbitration agreements -- simply notes that discrimination laws permit private claims as well as claims by EEOC. See id. ("every charge filed with the EEOC carries two potential claims for [equitable and monetary] relief: the charging party's claim for individual relief and the EEOC's claim 'to vindicate the public interest in preventing employment discrimination'"). In fact, the Commission has consistently asserted that monetary relief is critical to its ability to vindicate the public interest in deterring employment discrimination. See, e.g., EEOC Brief in EEOC v. Frank's Nursery & Crafts, No. 97-1694 (6th Cir.), at 20-21 (filed Feb. 11, 1998). 8 It is not surprising that Circuit City prefers to arbitrate, rather than litigate, the amount of any damages for which it may be liable for the conduct alleged in the Commission's suit. The company's arbitration agreement sharply limits the punitive damages and backpay that an employee may obtain in arbitration -- indeed, the agreement has been held unenforceable specifically because of the limitations on punitive damages. See, e.g., Johnson v. Circuit City Stores, 2000 WL 19166 (4th Cir.) (unpublished), cert. denied, 120 S. Ct. 2744 (2000); Gannon v. Circuit City Stores, 2000 WL 1062102, at *3 (E.D. Mo. July 10, 2000). Such limitations are especially significant in a case such as this alleging sexual harassment, constructive discharge and retaliation. 9 Quoting scattered sentences from the Compliance Manual, Circuit City seems to suggest that the Commission does not exercise independent judgment because, in deciding whether to bring an enforcement action and, if so, whether to seek compensatory damages, EEOC attorneys interview aggrieved individuals and determine their credibility as witnesses, the extent of their injuries and their willingness to cooperate in the suit. See Brief at 50-51. In fact, such interviews are critical for Rule 11 purposes. Attorneys must assess the credibility of key witnesses in making litigation-related decisions. In addition, due to the intrusive nature of discovery and cross-examination, it would normally make no sense for EEOC to seek compensatory (as opposed to punitive) damages unless victims are prepared to expose their injuries to public scrutiny.