E.E.O.C. v. G-K-G, Inc.
| Decision Date | 04 November 1994 |
| Docket Number | B,G-K-,93-2386 and 93-3776,Nos. 93-2275,INCORPORATE,s. 93-2275 |
| Citation | 39 F.3d 740 |
| Parties | 66 Fair Empl.Prac.Cas. (BNA) 344, 63 USLW 2316 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.ernard Gassin, Hattori Corporation of America, et al., Defendants-Appellees. William BLUMENTHAL and Equal Employment Opportunity Commission, Plaintiffs-Appellees, v.ernard Gassin, Hattori Corporation of America, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gail S. Coleman (argued), E.E.O.C., Office of General Counsel, Washington, DC, Jean P. Kamp, Mary B. Manzo, E.E.O.C., Chicago, IL, for E.E.O.C.
Philip C. Stahl (argued), Lynn H. Murray, Nancy H. Wilder, Susan L. Goldfine, Grippo & Elden, Chicago, IL, for G-K-G, Inc., Bernard Gassin, Hattori Corp. of America, in Nos. 93-2275, 93-2386.
Philip C. Stahl, Lynn H. Murray, Nancy H. Wilder, Susan L. Goldfine, Grippo & Elden, Chicago, IL, for Seiko Time Corp., Seiko Corp. of America, in No. 93-2275.
Mark L. Shapiro (argued), Robert S. Letchinger, Rudnick & Wolfe, Chicago, IL, for William Blumenthal, in No. 93-2386.
Jay G. Swardenski, Matkov, Salzman, Madoff & Gunn, Philip C. Stahl, Lynn H. Murray, Nancy H. Wilder, Susan L. Goldfine, Grippo & Elden, Chicago, IL, for Seiko Time Corp., Seiko Corp. of America, in No. 93-2386.
Mark L. Shapiro (argued), Bruce C. Nelson, Rudnick & Wolfe, Chicago, IL, for William Blumenthal, in No. 93-3776.
Philip C. Stahl (argued), Lynn H. Murray, Carolyn F. McNiven, Grippo & Elden, Chicago, IL, for G-K-G, Inc., Bernard Gassin, Hattori Corp. of America, in No. 93-3776.
Jay G. Swardenski, Matkov, Salzman, Madoff & Gunn, Philip C. Stahl, Lynn H. Murray, Carolyn F. McNiven, Grippo & Elden, Chicago, IL, for Seiko Time Corp., in No. 93-3776.
Jay G. Swardenski, Bret A. Rappaport, Schwartz, Cooper, Greenberger & Krauss, Philip C. Stahl, Lynn H. Murray, Carolyn F. McNiven, Grippo & Elden, Chicago, IL, for Seiko Corp. of America in No. 93-3776.
Before POSNER, Chief Judge, and COFFEY and KANNE, Circuit Judges.
William Blumenthal was employed as a salesman by G-K-G, Inc., a wholesale distributor of Seiko watches. Fired one month before turning 70, he brought suit against G-K-G under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. While the suit was pending, G-K-G sold all its assets to Seiko, which was added as a defendant; and, before trial, the district judge ruled that Seiko was, as a matter of law, G-K-G's successor for purposes of liability under the age-discrimination law. A jury brought in a verdict for Blumenthal, awarding him $343,691 in back pay which the judge doubled because the jury had found that the defendants' violation of the law was willful. Later the judge awarded Blumenthal more than $370,000 in costs and attorney's fees, but the appeal from that award has been stayed to enable the judge to rule on a request for additional fees.
A month after Blumenthal filed his suit, the Equal Employment Opportunity Commission filed a largely identical suit against G-K-G but with one additional charge--that G-K-G's pension and profit-sharing plan discriminated against employees aged 70 or older. The suits were consolidated. After the Commission dropped its challenge to the pension and profit-sharing plan, and before the trial began, the district judge dismissed its suit as duplicative of Blumenthal's. The Commission appeals from this dismissal, and the defendants from the judgment against them in Blumenthal's suit. We begin with the Commission's appeal.
The Commission's brief is full of sonorous rhetoric about its supposedly dominant role in the enforcement of the age-discrimination law, its paramount responsibility to eradicate age discrimination, its superior perspective, its commitment to obtaining the most satisfactory overall relief, the danger that an individual plaintiff with his narrow interests may settle prematurely, and so on in that vein. There are many reasons not to take these claims seriously. To begin with, the Commission is a party to only a small percentage of the age-discrimination cases that are filed. The vast majority are brought by individuals with no participation by the Commission. At argument we asked the Commission's counsel for a memorandum on what percentage of cases is brought by the Commission. The memorandum reveals that the Commission does not keep such statistics and is not aware of any institution that does. It has no empirical basis for its claim of paramountcy and apparently no interest in creating one.
Most cases under the Age Discrimination in Employment Act, moreover, including the present one, are brought by well-paid management-level personnel or commissioned salesmen, who are quite capable of instituting and conducting litigation without the aid of the taxpayer. The broader relief that the Commission initially sought on behalf of Blumenthal concerned G-K-G's pension and profit-sharing plans, and the participants in such plans tend to be affluent rather than poor or otherwise marginalized employees. A further reason for wonderment that the Commission should want to elbow its way into a case in which the employee who is complaining of age discrimination has brought his own suit is that the chances of a plaintiff's obtaining a satisfactory settlement are likely to be reduced rather than increased by the presence of the Commission as a coplaintiff. The Commission can derail settlement negotiations by insisting on pressing on with its own duplicative suit, so that the employer will gain little or nothing by settling with the employee. EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir.1987). The effect when this happens is to subordinate the interests of the particular employee to the Commission's enforcement strategy. The supplemental memorandum includes a ten-year-old description of that strategy that is couched in meaningless generalities and contains no specific reference to age discrimination.
The Commission's insistence on remaining a plaintiff in a case such as this where it seeks the identical relief as the well-represented individual plaintiff seems especially pointless. It is not as if Blumenthal were attempting to "sell out" future age-discrimination plaintiffs by seeking a judgment that would give him what he wants without establishing any principle useful to future plaintiffs; for the Commission seeks no greater relief, and could adequately protect its interest in the development of legal doctrine by filing an amicus brief, as it has done in other cases, such as Zabielski v. Montgomery Ward & Co., 919 F.2d 1276, 1279-80 (7th Cir.1990). It is not as if Blumenthal's lawyer, feeling outgunned by mighty Seiko, invited the Commission to file suit; he did not, and is politely indifferent to the Commission's appeal from the dismissal. Of course it is not for judges to tell an administrative agency how to allocate its resources. But we are greatly surprised to find this particular agency, which has long complained of being understaffed and has long been criticized for delay, see, e.g., Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 364, 370, 97 S.Ct. 2447, 2453, 2456, 53 L.Ed.2d 402 (1977); Cannon v. University of Health Sciences, 710 F.2d 351, 359 (7th Cir.1983); Patrick Lee, "EEOC: The Mill Grinds Slowly: At Understaffed and Underbudgeted Agencies, the Backlog of Cases Continues to Grow," Los Angeles Times, May 16, 1994, Sec. 2, p. 5, acting as if it were bounteously endowed. How otherwise could duplicating the efforts of highly competent private counsel be thought an efficient use of the agency's appropriation? In response to our query whether the Commission has any published or publicly available criteria for determining whether to sue when a parallel suit has been brought by the employee alleged to have been discriminated against on grounds of age, the supplemental memorandum reports that the Commission has no such criteria.
All this said, we agree with the Commission, and with the only other appellate decision to address the issue, EEOC v. Wackenhut Corp., 939 F.2d 241 (5th Cir.1991), that the district judge erred in dismissing its suit. Not only has the Commission an unequivocal statutory right to sue to enforce the age-discrimination law, but the right of the individual employee to bring such a suit "shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee." 29 U.S.C. Sec. 626(c)(1); see EEOC v. Pan American World Airways, Inc., 897 F.2d 1499, 1505-06 (9th Cir.1990). Blumenthal's suit was not affected, as the district judge noted, 737 F.Supp. 493, 496 (N.D.Ill.1990), because it was brought before the Commission's suit. EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 640-41 (11th Cir.1984); Burns v. Equitable Life Assurance Soc'y, 696 F.2d 21 (2d Cir.1982). Nevertheless the provision we have quoted shows that the Commission was meant to have the whip hand in the enforcement of the age-discrimination law, just as it asserts. EEOC v. Pan American World Airways, Inc., supra, 897 F.2d at 1505-06; Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (3d Cir.1977). It is not clear why Congress gave the Commission the whip hand. The provision in question, along with most of the other remedial and procedural provisions of the age-discrimination law, was taken from the Fair Labor Standards Act. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978); Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 283 (7th Cir.1993); Burns v. Equitable Life Assurance Soc'y, supra. The small stakes in most minimum-wage and maximum-hour cases, coupled with the "victimless" nature of the offense (working for less than the minimum wage or waiving overtime pay is a voluntary undertaking), may make the individual worker an unreliable enforcer. Tony & Susan Alamo...
To continue reading
Request your trial
-
Hodgens v. General Dynamics Corp.
...be a good time "to get rid of some of the older mediocre managers" had a "direct bearing on age discrimination."); EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir.1994) (Comment by supervisor that the plaintiff's "accounts could use some younger blood" constituted sufficient direct evidence ......
-
Ninth Ave. Remedial Group v. Allis-Chalmers Corp.
...common law when considering successor liability under other federal statutes, see, e.g., Tasemkin, 59 F.3d at 49; EEOC v. G-K-G, Inc., 39 F.3d 740, 748 (7th Cir.1994), this Court will apply federal common law to the issue of successor liability in this Applying the traditional successorship......
-
Wichmann v. Bd. of Trustees of Southern Ill. Univ.
...however, where a jury could reasonably have found that the violation was "deliberate and indeed bare-faced." EEOC v. G-K-G, Inc., 39 F.3d 740, 749 (7th Cir.1994). The jury could have so found here, although the conclusion was not required. Lindberg knew that it was illegal to fire someone b......
-
E.E.O.C. v. Johnson & Higgins, Inc.
...Chairman Gilbert F. Casellas, Statement Before House Committee on Appropriations, 1996 WL 5511770 (Apr. 25, 1996); EEOC v. G-K-G, Inc., 39 F.3d 740, 744 (7th Cir.1994) (EEOC "has long complained of being understaffed and has long been criticized for delay"). As J & H observes, this case is ......
-
Successor liability issues in labor and employment cases.
...Treatment Co. of Pa., 181 F.3d 396 (3d Cir. 1999); Rojas v. TK Communications, Inc., 87 F.3d 745 (5th Cir. 1996); EEOC v. G-K-G, Inc., 39 F.3d 740 (7th Cir. 1994); Dominguez v. Hotel, Motel, Restaurant & Miscell. Bartenders Union, 674 F.2d 732 (8th Cir. 1982); Slack v. Havens, 522 F.2d ......