Equal Employment Opportunity Commission v. Sterling Jewelers, Inc.
ORDER denying 69 Motion for Leave to Appeal. Case is referred back to Magistrate Judge McCarthy for further proceedings. Signed by Hon. Richard J. Arcara on 2/26/2010. (JMB)
UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK
E Q U A L EMPLOYMENT OPPORTUNITY COMMISSION, P la in tiff, D E C IS IO N AND ORDER 0 8 -C V -7 0 6 A v.
STERLING JEW E L E R S , INC., D e fe n d a n t.
IN T R O D U C T IO N O n January 19, 2010, defendant filed a motion for certification of an in te rlo c u to ry appeal pursuant to 28 U.S.C. § 1292(b). Defendant asserts that this c a s e meets the criteria in Section 1292(b) for two specific issues: whether the 3 0 0 -d a y limitation period set forth in 42 U.S.C. § 2000e-5(f)(1) applies to the E E O C ; and whether, if it does, the "continuing violation" doctrine prevents partial d is m is s a l of the EEOC's complaint. In opposition, plaintiff notes that the parties h a ve agreed to seek permission to bifurcate the case and that the issues in q u e s tio n would not affect the initial determination of liability. For the reasons b e lo w , the Court will deny defendant's motion.
BACKGROUND T h is case concerns allegations of gender discrimination in violation of Title V II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 to 2000e-17. In the c o m p la in t, filed on September 23, 2008, plaintiff accused defendant of m a in ta in in g a system of discriminatory promotion and compensation decisions a g a in s t its female retail sales employees. Plaintiff asserted in the complaint that th e allegedly discriminatory conduct has occurred since at least January 1, 2003. Plaintiff claimed specifically that defendant has been violating 42 U.S.C. § § 2000e-2(a) and 2000e-2(k). O n November 25, 2008, defendant filed a motion to dismiss any aspects of th e complaint seeking relief for alleged discrimination prior to July 22, 2004. Defendant maintained in that motion that the EEOC is not exempt from the 300d a y limitation period set forth in 42 U.S.C. § 2000e-5(e)(1). Consequently, d e fe n d a n t argued, any allegations predating July 22, 2004 were untimely and c o u ld not be revived using the "continuing violation" doctrine. After full briefing a n d oral argument from the parties, Magistrate Judge Jeremiah J. McCarthy is s u e d an Amended Report and Recommendation on October 1, 2009 re c o m m e n d in g denial of defendant's motion. After briefing and oral argument for o b je c tio n s , this Court adopted the Amended Report and Recommendation in an O rd e r filed on January 6, 2010.
Defendant now brings the pending motion to certify the same issues from its prior motion for immediate appeal to the United States Court of Appeals for the S e c o n d Circuit. In support of its motion, defendant notes that both Magistrate J u d g e McCarthy and this Court acknowledged a split of authority on the issues in q u e s tio n . Defendant asserts further that the course of this litigation could change d ra m a tic a lly and could lead to a significantly longer or shorter trial depending on h o w the Second Circuit resolves these issues. In opposition, plaintiff notes that b o th sides agree to seek permission to bifurcate this case into what they call "S ta g e I" and "Stage II."1 In Stage I, plaintiff argues, a jury would determine only w h e th e r defendant is liable for engaging in a pattern or practice of discrimination. The scope of individual claims would apply only in Stage II, which, according to p la in tiff, means that the issues that defendant has raised will have no impact on th e case until fairly late in the litigation. D IS C U S S IO N "W h e n a district judge, in making in a civil action an order not otherwise a p p e a la b le under this section, shall be of the opinion that such order involves a c o n tro llin g question of law as to which there is substantial ground for difference of
Plaintiff filed a motion seeking permission (Dkt. No. 85) on February 12, 2 0 1 0 and asserted that the "EEOC and Sterling seek bifurcation of discovery and tria l into a Stage I liability phase and a Stage II individual relief phase." (Id. at 7.) The Court makes no comment about the propriety of granting the motion, but n o te s that an assessment of liability can precede a calculation of d a m a g e s -- d u rin g dispositive motions or at trial--with or without bifurcation. 3
opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order." 28 U.S.C. § 1292(b). Under the first criterion for interlocutory appeals, the C o u rt's concern is whether the two legal issues that defendant has raised qualify a s "controlling." "Although the resolution of an issue need not necessarily te rm in a te an action in order to be `controlling,' it is clear that a question of law is `c o n tro llin g ' if reversal of the district court's order would terminate the action." Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in A m m in is tra zio n e Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990) (citation omitted). Here, with or without bifurcation, the Court can arrange for an assessment of in d ivid u a l claims to occur after a determination that defendant is liable generally fo r discriminatory conduct. The issues that defendant has raised, therefore, will n o t "control" the issue of liability or any depositions, interrogatories, document re q u e s ts , or other discovery proceedings that may help develop it. Additionally, p la in tiff asserted in the complaint that the alleged discriminatory conduct occurred s in c e at least January 1, 2003. Plaintiff's wording indicates that it believes that th e discriminatory conduct is continuing through the present time. As a result, n o n e of plaintiff's claims will disappear from this case even if the Second Circuit a g re e d with defendant. Defendant's appeal, at most, would cut approximately 18 m o n th s ' worth of potential claims from this case but leave in place over six years' w o rth of identical claims. Cf. In re Buspirone Patent Litig., 210 F.R.D. 43, 51 4
(S.D.N.Y. 2002) (denying certification of an interlocutory appeal where at least s o m e claims would proceed regardless of the outcome of that appeal). If d e fe n d a n t's concern about the timeliness of some of the individual claims relates o n ly to the size of a damages award then it can seek a stay of payment on those c la im s pending appeal of an adverse final judgment. W ith o u t a controlling question of law, the Court need not address the other c rite ria that defendant would have to meet for an interlocutory appeal. C O N C L U S IO N F o r all of the foregoing reasons, defendant's motion (Dkt. No. 69) is denied. This case is referred back to Magistrate Judge McCarthy for further proceedings. SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: February 26, 2010
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