Equal Employment Opportunity Commission v. Lawler Foods, Inc. et al
Filing
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MEMORANDUM AND ORDER granting in part and denying in part 14 Opposed MOTION to Bifurcate Discovery and Trial (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
E QUAL E MPLOYMENT O PPORTUNITY
C OMMISSION,
Plaintiff,
v.
L AWLER F OODS, INC., et al.,
Defendants.
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C IVIL A CTION N O. 4:14-CV-03588
MEMORANDUM AND ORDER
Before the Court in this Title VII employment discrimination case is the Equal
Employment Opportunity Commission’s motion to bifurcate discovery and trial. (Dkt. 14).
The case has been referred to this Court for pretrial management by United States District
Judge Lynn N. Hughes. (Dkt. 7). The motion is granted in part and denied in part.
The EEOC alleges in its complaint that Lawler Foods has engaged in racially
discriminatory hiring and recruiting practices. (Dkt. 1, at 3). The allegations include a pattern
or practice of intentionally refusing to hire black employees and non-Hispanic employees,
and using employment practices that have an adverse impact on prospective black and nonHispanic employees, such as word of mouth recruiting and advertising a preference for
Spanish speakers. (Dkt. 1, at 1-2). The EEOC asserts that Lawler Foods’ practices violate
Sections 703(a) and 703(k) of Title VII, and brings this lawsuit under Section 706 of the Act.
1.
Bifurcation of trial
As the EEOC correctly observes, the Supreme Court has approved the bifurcation of
trial into class-wide liability and individual damage phases in pattern or practice
discrimination cases brought by the federal government under Section 707 of Title VII.1 This
so-called Teamsters framework has routinely been employed in Title VII class actions over
the years, including private class actions brought under Section 706 and 42 U.S.C. §1981.2
Moreover, the Supreme Court has held that the EEOC may seek class-wide relief in a Section
706 action without satisfying the procedural hurdles of Rule 23.3 Given EEOC’s statutory
authority under Section 706 “to bring suit in its own name to secure relief for a group of
aggrieved individuals,”4 there is no legal or prudential reason why the Teamsters framework
should be available to private plaintiffs but not to the EEOC. Lawler Foods’ argument to the
contrary rests on a hyper-technical reading of the statute that is both tenuous and
unpersuasive.5
All that said, the fact remains that the parties have not consented to trial before this
magistrate judge; the case has been referred for pretrial management only. (Dkt. 7). Any
decision about the conduct of the trial remains with the district judge, and outside the scope
1
Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).
2
See e.g. Boykin v. Georgia-Pacific Corp., 706 F.2d 1384 (5th Cir. 1983). See also Franks
v. Bowman Transp. Co., 424 U.S. 747, 772 (1976).
3
General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 320 (1980).
4
Id. at 324.
5
See Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012) (EEOC may employ
Teamsters pattern-or-practice framework in case brought under Section 706). The EEOC also
requests that punitive damages be determined in the first stage of a bifurcated trial, a less
conventional procedure potentially raising some knotty Seventh Amendment concerns.
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of that referral. A decision to bifurcate a trial is committed to the sound discretion of the trial
court under Rule 42(b),6 so the district judge would be free to disregard any recommendation
about trial bifurcation that a magistrate judge might make. In any event, there is no reason
at this early stage of the litigation to make a final decision about the conduct of a trial that,
if it takes place at all, will not commence until 2017 at the earliest.
For these reasons, the EEOC’s motion to bifurcate the trial is denied without prejudice
at this time.
2.
Bifurcation of Discovery
While an order bifurcating trial may be premature at this point, an order to bifurcate
discovery is not. Rule 26 affords trial courts ample authority to control the sequence and
timing of discovery. So, for example, “when one issue may be determinative of a case, the
court has discretion to stay discovery on other issues until the critical issue has been
decided.”7 This principle of judicial parsimony is often invoked, for example, to justify
postponing discovery on damages until liability has been established.8
Such an approach seems especially fitting in a Title VII pattern-or-practice suit
involving a potentially large class of aggrieved persons. In this case the EEOC claims to have
identified over 200 such individuals, and expects that number to rise as the case moves on.
Unlimited discovery into the circumstances of each rejected applicant’s claim for damages
6
9A Wright and Miller, Federal Practice and Procedure § 2388 (3d ed. 2008).
7
8A Wright and Miller, Federal Practice and Procedure § 2040 (3d ed. 2010).
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Id.
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is certain to be very costly and time-consuming. It may also turn out to be entirely wasteful
and unnecessary should the EEOC’s pattern-or-practice evidence ultimately fall short,
whether on summary judgment or at trial.
The EEOC’s burden in a pattern-or-practice case is to prove that discrimination “was
the company’s standard operating procedure – the regular rather than the unusual practice.” 9
Statistical proof is almost always necessary to meet that burden, together with documents
from the employer’s files and testimony from employer representatives. In addition,
anecdotal testimony from selected class members is often presented “to bring the cold
numbers convincingly to life.”10 During the liability phase of the Teamsters trial, nearly 40
rejected applicants testified to bolster the government’s statistical case.
Similarly here, the EEOC’s proof of pattern-or-practice hiring discrimination is
expected to consist of documents from employer files, as well as testimony from company
officials and employees, expert witnesses, and a select number of affected class members
who applied for jobs but were not hired. At this stage of the litigation, the focus is properly
on the employer’s conduct, and in particular whether there is sufficient pattern-or-practice
evidence to warrant a trial on the merits. Until that issue is resolved, considerations of
economy and efficiency weigh heavily in favor of postponing discovery regarding second
stage issues, such as the eligibility of individual class members for monetary relief, and in
what amounts.
9
Teamsters, 431 U.S. at 336.
10
Id at 339.
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Lawler Foods vigorously opposes bifurcation of discovery in this manner, arguing that
it would “completely deprive Defendants from the discovery needed to defend this lawsuit.”
(Dkt. 23, at 3). When pressed at the hearing to describe exactly what needed discovery on
pattern-or-practice liability would be denied them, defendants’ counsel was far from specific.
According to the EEOC, the defendants intend to serve interrogatories, requests for
production, and depose every affected class member identified by the EEOC, whether or not
the EEOC intended to offer their testimony as part of its pattern-or-practice case.
Defendant’s First Request for Production of Documents seeks extensive and detailed
information on all individuals represented by the EEOC, including authorizations for
employment and wage records, medical and health information, social security earnings, tax
returns, and educational records. (Dkt. 19-2).The vast preponderance of the information
sought pertains only to damages, or perhaps whether a particular class member would be
eligible for monetary relief. While undeniably relevant at the remedy stage, such information
has almost nothing to do with deciding whether defendants have engaged in a pattern-orpractice of hiring discrimination based on race or national origin. Moreover, this discovery
would sweep in non-parties to this litigation, such as previous and subsequent employers,
healthcare providers, and educational institutions, imposing substantial and potentially
needless burdens on these unrelated entities.
3.
Conclusion
The Court finds that bifurcation of discovery in the manner sought by the EEOC is
the best means to secure the just, speedy, and efficient resolution of this action. The Court
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is unpersuaded that the proposed sequence and timing of discovery will unfairly prejudice
Lawler Foods in any way. Accordingly, it is ORDERED that:
1.
Beginning immediately, the parties are required to make initial disclosures
and authorized to conduct discovery, as provided under the Federal Rules of
Civil Procedure, on the following issues:
a.
Whether defendants engaged in a pattern or practice of hiring
discrimination on the basis of race or national origin. Discovery can
include statistical evidence, anecdotal evidence from selected class
members, and evidence of corporate policies and practices, including
record-keeping.
b.
Whether the defendants intentionally engaged in a pattern or practice
of employment discrimination “with malice or reckless indifference to
the federally protected rights” of the aggrieved individuals. 42 U.S.C.
§ 1981a(b).
c.
Whether the defendants actions were job-related and consistent with
business necessity.
d.
Whether the EEOC is entitled to injunctive relief.
e.
Whether the defendants unlawfully failed to hire the three named
intervenors, as well as other class member witnesses identified by the
EEOC, on the basis of their race or national origin.
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2.
At this stage, discovery regarding damages or other relief for individual class
members will not be allowed. Nor will defendants be permitted to depose or
direct written discovery to class members not designated as witnesses by the
EEOC.
3.
This Order will remain in effect until resolution of dispositive motions in this
case, unless otherwise ordered by the Court.
Signed at Houston, Texas, on September 10, 2015.
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