E.E.O.C. v. Mitsubishi Motor Mfg. of America, Inc.
| Decision Date | 16 December 1996 |
| Docket Number | No. 96-3957,96-3957 |
| Citation | 102 F.3d 869 |
| Parties | 72 Fair Empl.Prac.Cas. (BNA) 1130, 69 Empl. Prac. Dec. P 44,448 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MITSUBISHI MOTOR MANUFACTURING OF AMERICA, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jean P. Kamp, submitted, John C. Hendrickson, Steven J. Levine, Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff-Appellant.
Peter W. Brandt, Livingston, Barger, Brandt & Schoeder, Bloomington, IL, Walter B. Connolly, Jr., Peter W. Waldmeir, Miller, Canfield, Paddock & Stone, Detroit, MI, Alison B. Marshall, Miller, Canfield, Paddock & Stone, Washington, DC, Roy G. Davis, Keck, Mahin & Cate, Peoria, Il, for Defendant-Appellee.
Before BAUER, EASTERBROOK and KANNE, Circuit Judges.
The Equal Employment Opportunity Commission believes that sex discrimination and sexual harassment are rife at Mitsubishi's auto assembly plant in Normal, Illinois. Earlier this year the EEOC commenced a pattern-or-practice suit against Mitsubishi under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6, on behalf of women currently or formerly employed at the plant. Like a class action under Fed.R.Civ.P. 23(b)(3), the suit can produce monetary remedies for injured persons, but the EEOC is not their "representative," and the district court need not certify a class. For many purposes, however, a pattern-or-practice suit operates as a class action, and we follow the parties' convention in referring to the approximately 600 women potentially eligible for relief as the "class."
As is its right, each side sent a communication to the class members. Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). Mitsubishi's letter told them that they The EEOC replied in kind, telling the employees: "You should know that you are not required to discuss any issues relating to this lawsuit with Mitsubishi's Human Resources Department." Both statements are legally accurate; the employees can decide for themselves with whom they will talk, and about what subjects. Mitsubishi was concerned about the EEOC's advice, however, for communications are useful in locating and disciplining those who engage in harassment. In order to keep the workplace civil for the benefit of women, an employer must know what is going on there. Following the EEOC's advice, 29 C.F.R. § 1604.11(d), Mitsubishi adopted a formal policy that forbids sexual harassment and invites unhappy employees to complain as soon as possible to persons who have been specially trained to address these issues; yet the EEOC's letter could be read to undermine that policy. Mitsubishi also was concerned that it could be held liable for harassment that the EEOC had made it harder to prevent. Although an employer often is not liable for sexual harassment unless the affected employee has complained, see Zimmerman v. Cook County Sheriff's Department, 96 F.3d 1017 (7th Cir.1996), we have suggested that protest is unnecessary if the employer knows that harassment is pervasive, id. at 1018-19, a condition that the EEOC believes exists at Mitsubishi's plant. See also Ellerth v. Burlington Industries, Inc., 102 F.3d 848 (7th Cir.1996). Failure to complain might, however, deprive workers of their remedies under labor agreements. So the EEOC's advice to employees, if taken, could simultaneously make conditions worse for current workers and increase Mitsubishi's potential Title VII liability (while reducing its contractual exposure).
Persuaded by Mitsubishi's arguments, the district court ordered the EEOC to send a second letter, telling employees that the first letter
should not be read to suggest that you should not present any complaints you may have relating to sexual harassment, sex-based harassment, and retaliation to Mitsubishi's Human Resources Department pursuant to the company's sexual harassment policy. You should feel free to bring these matters to the company's Human Resources Department pursuant to the company's sexual harassment policy. Of course, you are also free to inform the EEOC of such matters at any time that you wish.
See Manual for Complex Litigation 234 (3d ed. 1995) ( that district judges order appropriate curative communications). The court added, when denying the EEOC's motion for a stay pending appeal, that "without a finding of liability, EEOC has no right to disrupt Mitsubishi's existing grievance procedures."
Taking a hint from Gulf Oil, 452 U.S. at 104 n. 20, 101 S.Ct. at 2202 n. 20, the district court also directed each side to give the other, and the court, 10 days' notice of any future non-privileged communications to the class members, so that misleading statements could be avoided. Finally, the district court directed the EEOC not to use information gathered from current and former employees "who are not themselves victims but have provided second-hand information to EEOC about other employees" to "seek out and persuade any employees to join the plaintiff class who have not already expressed their desire to do so." On November 25--two days before the corrective letter was to be sent--the EEOC filed a notice of appeal. On the morning of November 27 it asked us to issue a stay. We denied the motion that afternoon with a notation that an explanation was in the works. This is that explanation: we declined to issue a stay because this court lacks jurisdiction.
The district court's resolution of Mitsubishi's protest obviously is not a "final decision" under 28 U.S.C. § 1291 in the traditional sense. It does not end the litigation or afford (or deny) any relief on the merits. It is instead a managerial order, like dozens of others a court must enter in the course of complex litigation. The limitation on the use the EEOC may make of information it receives in response to its letter is no different from a limitation on discovery, not appealable because any error can be corrected at the end of the case. See Reise v. Board of Regents of University of Wisconsin, 957 F.2d 293 (7th Cir.1992); cf. Kerr v. United States District Court, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (...
To continue reading
Request your trial
-
E.E.O.C. v. Mitsubishi Motor Mfg. of America, Inc.
...issues and defenses predominate, are simply not considered in a pattern or practice action. See E.E.O.C. v. Mitsubishi Motor Mfg. of Am., Inc., 102 F.3d 869, 870 (7th Cir.1996). Mitsubishi's argument is also meritless because neither retaliation nor constructive discharge claims require pro......
-
Wingerter v. Chester Quarry Co.
...like dozens of others a court must enter in the course of complex litigation." See Equal Employment Opportunity Comm'n v. Mitsubishi Motor Mfg. of America, Inc., 102 F.3d 869, 871 (7th Cir. 1996). Accordingly, because such orders are reviewable at the end of the case, they are not immediate......
-
Reid v. Unilever United States, Inc.
...members. Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 759 (7th Cir.2000) (citing EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 102 F.3d 869, 870 (7th Cir.1996)). Nevertheless, the Supreme Court has held that under Federal Rule of Civil Procedure 23(d), a district court has the autho......
-
Anne Arundel v. Cambridge Commons, 2483, September Term, 2004.
...effort that will affect the litigation. Unlike an error in discovery, or a "managerial order," see EEOC v. Mitsubishi Motor Manufacturing of America, Inc., 102 F.3d 869, 871 (7th Cir.1996), the allocation of responsibilities and duties that are summoned by the Order sub judice is a matter t......
-
Sexual harassment & discrimination digest
...to send cor rect ive notice to Mitsubishi class Plainti൵s. Equal Employment Opportunity Comm’n. v. Mitsubishi Motor Mfg. of Am., Inc ., 102 F.3d 869 (7th Cir. 1996). See digital access for the full case summary. Seventh Circuit inds manager and subordinate not victims of sexual harassment ......