IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 03-10719
_______________________


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,
v.						
						
PEMCO AEROPLEX, INC.,
			
Defendant-Appellee.

_______________________________________________

On Appeal from the United States District Court
for the Northern District of Alabama
Southern Division
_______________________________________________

BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS APPELLANT
_______________________________________________

NICHOLAS M. INZEO
Acting Deputy General Counsel

PHILIP B. SKLOVER
Associate General Counsel

VINCENT J. BLACKWOOD
Assistant General Counsel

BARBARA L. SLOAN
Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of the General Counsel
1801 L Street, N.W.
Washington, D.C.  20507
(202) 663-4721
EEOC v. Pemco Aeroplex, Inc., No. 03-10719
CERTIFICATE OF INTERESTED PERSONS
In accordance with Eleventh Circuit Rules 26.1-1, I certify that 
the following persons or entities have an interest in the outcome of this case:
The Honorable William M. Acker, U.S. District Judge, N.D. Ala.
Mitchell G. Allen, Attorney for Defendant.
Naomi Hilton Archer, Senior Trial Attorney, EEOC.
Vincent J. Blackwood, Associate General Counsel, EEOC.
Stephen E. Brown, Attorney for Defendant.
Mildred Byrd, Supervisory Trial Attorney, EEOC.
Equal Employment Opportunity Commission, Plaintiff-Appellant.
Charles Guerrier, Regional Attorney, EEOC.
Nicholas M. Inzeo, Acting Deputy General Counsel, EEOC.
Jeffrey A. Lee, Attorney for Defendant.
Maynard, Cooper & Gale, P.C., Attorneys for Defendant.
Pemco Aeroplex, Inc., Defendant-Appellee.
Philip B. Sklover, Assistant General Counsel, EEOC.
Barbara L. Sloan, Attorney, EEOC.

Under FRAP Rule 26.1, the Equal Employment Opportunity Commission, an
 agency of the federal government, is not required to file a corporate 
disclosure statement.

_______________________________
Barbara L. Sloan
STATEMENT REGARDING ORAL ARGUMENT
The Commission believes that oral argument would assist the Court in 
reviewing the issues presented in this appeal.  The Commission is appealing
 from an order dismissing its Title VII enforcement action in light of the
 adverse judgment in a narrower private suit brought by some of the defendants 
employees under 42 U.S.C.  1981 (the Thomas action).  In dismissing the
 suit, the district court held that the Commission is (or should be) bound
 by that judgment even though the Commissions suit covers employees who 
were not part of the private suit and the district court twice denied the 
Commissions motion to consolidate its case with the Thomas action.  This 
ruling, if allowed  to stand, would seriously undermine the Commissions 
statutory authority to enforce Title VII and other federal anti-discrimination 
statutes.  

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS   i
STATEMENT REGARDING ORAL ARGUMENT   ii
TABLE OF CONTENTS   iii
TABLE OF AUTHORITIES    v
STATEMENT OF JURISDICTION   1
STATEMENT OF THE ISSUE   1
STATEMENT OF THE CASE
1.	Nature of the Case and Course of Proceedings 2
2.	Statement of Facts  2
3.	District Courts Decision   7
STANDARD OF REVIEW  10
SUMMARY OF ARGUMENT   11
ARGUMENT
THE EEOC IS NOT PRECLUDED FROM BRINGING A 
TITLE VII	ENFORCEMENT ACTION BY A PRIOR JUDGMENT IN
A PRIVATE ACTION IN WHICH THE EEOC WAS NOT A PARTY.  15

A.	There Is No Privity Between The EEOC
and The Thomas Plaintiffs.  16

B.	Even if The EEOC Were in Privity With
the Thomas Plaintiffs, This Action Would Not
Be Precluded Because of the Differences
in the Claims in the Two Cases.  34

C.	Logistical Problems Cannot Justify Dismissal
of the EEOCs Action.  37

CONCLUSION   40
CERTIFICATE OF COMPLIANCE   41
CERTIFICATE OF SERVICE   
TABLE OF AUTHORITIES 
CASES 
Aerojet-General Corp. v. Askew, 
	511 F.2d 710 (5th Cir. 1975)   30
Becherer v. Merrill Lynch, Pierce, Fenner & Smith, 
	193 F.3d 415 (6th Cir. 1999)   39
Benson & Ford v. Wanda Petroleum, 
	833 F.2d 1172 (5th Cir. 1987)   29
Bonner v. City of Prichard, 
	661 F.2d 1201 (11th Cir. 1981)   17
CSX Transport v. Brotherhood of Maintenance of Way Employees, 
	327 F.3d 1309 (11th Cir. 2003)   30
Citibank, N.A. v. Data Lease Finance Corp., 
	904 F.2d 1498 (11th Cir. 1990)   22
Cooper v. Federal Reserve Bank, 
	467 U.S. 867 (1984)   35
Dills v. City of Marietta, Ga., 
	674 F.2d 1377 (11th Cir. 1982)   28
EEOC v. Dial Corp., 
	156 F. Supp. 2d 926 (N.D. Ill. 2001)   38
EEOC v. Goodyear Aerospace Corp., 
	813 F.2d 1539 (9th Cir. 1987)   22
EEOC v. Harris Chernin, 
	10 F.3d 1286 (7th Cir. 1993)   22

EEOC v. Huttig Sash & Door Co., 
	511 F.2d 453 (5th Cir. 1975)   21, 23
EEOC v. Kimberly Clark Corp., 
	511 F.2d 1352 (6th Cir. 1975)   22
EEOC v. Waffle House, 
	534 U.S. 279 (2002)   20-21, 26
Empire Fire & Marine Insurance Co. v. J. Transport, 
	880 F.2d 1291 (11th Cir. 1989)  35
Falcon v. General Telephone Co. of the South West, 
	457 U.S. 147 (1982)   35
General Telephone Co. v. EEOC, 
	446 U.S. 318 (1980)   19, 27-28, 33
Hansberry v. Lee, 
	311 U.S. 32 (1940)   16
Herman v. South Carolina National Bank, 
	140 F.2d 1413 (11th Cir. 1998)   18
In re Bemis, 
	279 F.3d 419 (7th Cir. 2002)   19
Israel Discount Bank v. Entin, 
	951 F.2d 311 (11th Cir. 1991)   11
Jaffree v. Wallace, 
	837 F.2d 1461 (11th Cir. 1988)    27-28
Jones v. Preuit & Mauldin, 
	876 F.2d 1480 (11th Cir. 1989)   36

Lawlor v. National Screen Service Corp., 
	349 U.S. 322 (1955)   22
Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 
	750 F.2d 731 (9th Cir. 1984)   31
Mann v. City of Albany, Ga., 
	883 F.2d 999 (5th Cir. 1989)   28
Martin v. Wilks, 
	490 U.S. 755 (1989)   16
Mesa Petroleum Co. v. Coniglio, 
	787 F.2d 1484 (11th Cir. 1986)   27
Montana v. United States, 
	440 U.S. 147 (1979)   15, 23-24, 34, 36
Mullen v. Treasure Chest Casino, 
	186 F.3d 620 (5th Cir. 1999)   38
NAACP v. City of Evergreen, Ala., 
	693 F.2d 1367 (11th Cir. 1982)   38
NAACP v. Hunt, 
	891 F.2d 1555 (11th Cir. 1990)   29-31
National Railroad Passenger Corp. v. Morgan, 
	536 U.S. 101 (2002)  10, 34
New Orleans Steamship Assn v. EEOC, 
	680 F.2d 23 (5th Cir. 1982)   22
Perez v. Volvo Car Corp., 
	247 F.3d 303 (1st Cir. 2001)   25

Pollard v. Cockrell, 
	578 F.2d 1002 (5th Cir. 1978)  28, 30
Reeves v. Sanderson Plumbing Products, 
	530 U.S. 133 (2000)   11
Richards v. Jefferson County, Ala.,
	517 U.S. 793 (1996)   16-17, 31-32
Riddle v. Cerro Wire & Cable Group, 
	902 F.2d 918 (11th Cir. 1990)   27, 28
Schnell v. Peter Eckrich & Sons, 
	365 U.S. 260 (1961)   24
Secretary of Labor v. Fitzsimmons, 
	805 F.2d 682 (7th Cir. 1986)   18
Shield v. Fort James Corp., 
	305 F.3d 1280 (11th Cir. 2002)   36
South Central Bell Telephone Co. v. Alabama,
	526 U.S. 160 (1999)   31-32
Southwest Airlines v. Texas Intl Airlines,
	546 F.2d 84 (5th Cir. 1977)   17
Strickland v. Water Works & Sewer Board, 
	239 F.3d 1199 (11th Cir. 2001)   1
Teamsters v. United States, 
	431 U.S. 324 (1977)   39
Tice v. American Airlines, 
	162 F.3d 966 (7th Cir. 1999)   28, 33, 39

United States v. East Baton Rouge Parish School Board, 
	594 F.2d 56 (5th Cir. 1979)   19, 27
United States v. Mississippi Dept of Public Safety, 
	321 F.3d 495 (5th Cir. 2003)  20
Watson v. Blue Circle, 
	324 F.3d 1252 (11th Cir. 2003)   36

STATUTES 
28 U.S.C.  1291    1
28 U.S.C.  1331     1
28 U.S.C.  1345    1
42 U.S.C.  1981      2, 3, 9, 15
Title VII of the Civil Rights Act of 1964, 
	42 U.S.C.  2000e et seq.   passim
	42 U.S.C.  2000e-5(f)(3)    1
Fed. Rule of Civil Procedure 56    11

OTHER AUTHORITY
Restatement (Second) of Judgments  39    24
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________

No. 03-10719
_______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,
v.						
						
PEMCO AEROPLEX, INC.,
			
Defendant-Appellee.
_______________________________________________

On Appeal from the United States District Court
for the Northern District of Alabama
_______________________________________________
STATEMENT OF JURISDICTION
This is an enforcement action under Title VII of the Civil Rights Act of 1964,
 42 U.S.C.  2000e et seq. (Title VII).  The district court had jurisdiction 
under 28 U.S.C.  1331 and 1345 and 42 U.S.C.  2000e-5(f)(3).  Final judgment 
was entered in the district court on December 13, 2002.  Docket entry number 
(R.)61.  The Equal Employment Opportunity Commission filed a timely notice 
of appeal on February 10, 2003.  R.62.  This Court has jurisdiction over the 
appeal under 28 U.S.C.  1291.
STATEMENT OF THE ISSUE
Whether the EEOC may proceed with a Title VII enforcement action alleging 
company-wide racial harassment notwithstanding  adverse judgments in an action 
brought by a number of individuals alleging racial harassment by the same defendant.
STATEMENT OF THE CASE
1.	Nature of the Case and Course of Proceedings
This is an appeal from a judgment for defendant in a Title VII enforcement 
action brought by the Equal Employment Opportunity Commission alleging that 
defendant maintained a racially hostile work environment at its Birmingham,
 Alabama, location through 1998.  The EEOC filed suit on September 28, 2000,
in the Northern District of Alabama.  R.1.  On October 12, 2000, and February 
15, 2002, the EEOC moved to consolidate its case with a private action brought
 by 36 employees under 42 U.S.C.  1981.  R.2, 15.  Defendant opposed
 consolidation.  R.6, 16.  The district court denied the motions except for
 purposes of discovery.  R.60 (Memorandum Order (Mem.) 1); R.7 (1st 
Consolidation Order), R.17 (2d Consolidation Order).  After judgment was
entered in the private case, defendant moved for summary judgment in this
 case, arguing that it was barred by res judicata.  R.51.  On December 13,
 2002, the district court granted defendants motion.  R.60. The EEOC filed
 a timely notice of appeal on February 10, 2003.  R.62.
2.	Statement of Facts
While investigating multiple charges of race discrimination at Pemco Aeroplex,
 a facility specializing in the maintenance and repair of certain military 
airplanes, the EEOC uncovered evidence of nooses, persistent racial graffiti 
including the word nigger in rest rooms and other locations throughout the 
plant, repeated racial slurs by coworkers and even some supervisors, and other
 race-related conduct dating back to at least the late 1980s.  Cf. R.2 (EEOCs
 1st Consolidation Motion, Attachment).  Accordingly, after conciliation efforts 
failed, the EEOC brought this Title VII enforcement action in September 2000 
alleging that the company maintained a racially hostile work environment at 
its Birmingham location and seeking relief for all of the companys 200 or more
 African-American employees who were affected by the practice.  R.1 (Complaint).
  The case was assigned to Judge William Acker, Jr.  
Judge Acker was also presiding over a suit filed on December 9, 1999, by 36 
African-American employees alleging that Pemco violated 42 U.S.C.  1981 by
 subjecting them to racial harassment and other race discrimination at the
 Birmingham location.  See docket sheet in Thomas, et al. v. Pemco Aeroplex,
 No. 99-CV-3280-S (N.D. Ala.), available at http//pacer.alnd.uscourts.gov/dc/cgi-bin;
 see also Exhibit A to EEOCs Motion for Judicial Notice (filed June 30, 2003).
  Although Thomas was initially brought as a class action (R.2, Attachment 
(Thomas complaint)), the plaintiffs withdrew their class allegation after 
Pemco opposed certification (Thomas docket numbers (Thomas ##) 22-24), and 
the case proceeded as a suit by 36 individuals.  R.6 (Defs Response to 
EEOCs 1st Consolidation Motion at 4).
In October 2000, the EEOC moved to consolidate the two suits, noting that 
they would involve the same witnesses and issues, and raise common questions 
of law and fact. R.2 (EEOCs 1st Consolidation Motion at 1-2).  Pemco 
strenuously opposed the motion, arguing that the suits were actually 
substantially different and, so, consolidation would cause the company 
extreme prejudice.   R.6 (Defs Response to EEOCs 1st Consolidation
 Motion at 1-2).  In particular, the company stressed that, whereas EEOCs 
action involves only one (1) substantive claim  a hostile work environment
 claim under Title VII, in the Thomas suit, there were thirty-six (36)
 individual Plaintiffs, each of whose case must stand on its own.  Id.
at 3, 5.  The district court granted the EEOCs motion to the extent that 
discovery undertaken in either case shall be, to the extent relevant, admissible
 in the other case.  However, the court denied, without explanation, the 
request to consolidate the cases for trial.  R.7.
In February 2002, after discovery in the private suit was complete, the EEOC 
again moved to consolidate the suits for trial.1  In its motion, the EEOC 
stated that it was willing to forego the opportunity to conduct more discovery
 in order to try the two cases together.  R.15 (EEOCs 2d Consolidation Motion
 at 6).  Pemco, however, again adamantly opposed the motion.  Describing the
 private suit as 312 individual cases tried together, each of which must 
stand on its own merits, the company contrasted that with EEOCs obviously 
much broader suit which alleges class-wide discrimination and does not 
focus on any particular employee[s] being subjected to a hostile work 
environment.  Thus, the company argued, proof that others have experienced 
objectionable conduct is the heart of [EEOCs] case whereas it could be totally 
irrelevant (not to mention objectionable and prejudicial) in Thomas.  R.16
 (Response to EEOCs 2d Consolidation Motion at 3-4) (adding that evidence that 
a non-Thomas employee had a racial slur directed at him or her would be admissible
 [in EEOCs suit] but likely not . . . in [Thomas] unless a [Thomas] plaintiff
 . . . overheard the comment).  Again, the court denied EEOCs motion without 
explanation.  R.17.
In April 2002, nine plaintiffs including the original lead plaintiff, Thomas
 Burnes, accepted offers of judgment from Pemco.  See Thomas ## 157-64, 166. 
 The remaining 22 plaintiffs went to trial in June.  An EEOC attorney was 
present in the courtroom during approximately half of the trial but did not
 proffer evidence, examine witnesses or even sit at counsel table.  R.53 
(SJ Response, Ex.A (Archer Aff.  5-6)).
At the close of the evidence, the jury was instructed that, although the
 parties had been permitted to introduce evidence of events occurring up 
to ten years before the suit was filed on December 9, 1999, the applicable
 time frame for liability and damages extended only from December 9, 1997,
 until the last witness testified.  See June 26-28, 2002, Trial Transcript 
in Thomas, et al. v. Pemco Aeroplex, CV-99-AR-3280-S, at 19, Exhibit B to 
EEOCs Motion for Judicial Notice (filed June 30, 2003).  The jury was not 
asked to determine whether a racially hostile work environment existed at 
Pemco during that time frame.  Rather, as to each plaintiff, the jury was
 asked only whether that individual had been subjected to a hostile or abusive 
work environment because of his race; to that narrow question, in each case,
 the jury answered no.  Thomas ## 226-47; see also Trial Transcript at 19,
 39-43 (explaining special interrogatories); id. at 56-60 (reading 22 separate
 verdicts).  Judgment was then entered against the 22 plaintiffs who went to
 trial, and against Pemco for the plaintiffs who had accepted offers of judgment.
  Thomas ## 263, 264.  No appeal was taken.
Thereafter, Pemco moved for summary judgment in this suit, arguing that it was 
barred, as res judicata, in light of the adverse jury verdicts in the Thomas
 suit.  Contradicting the arguments it had made in opposing consolidation, the
 company now asserted that EEOCs suit and the Thomas suit presented the same 
issue -- that is, whether a racially hostile work environment pervaded the work
 atmosphere at Pemco.  R.51 (SJ Memorandum at 3-5).  The company asserted 
(without quoting or attaching the special interrogatories or verdict forms)
 that the jury specifically found that no such atmosphere existed.  See id. 
at 1.  The company argued that the EEOC was in privity with the 22 plaintiffs
 who went to trial because, according to the company, EEOC attorneys attended
the trial, participated in joint discovery and conferred with plaintiffs
 counsel during the pendency of the suit.  Id.  See also R.56 (Reply at 4)
(adding, without support, that the Courts [jury] charge . . . clearly informed
 the jury that liability could be determined and damages could be awarded based 
on any events that occurred after June 3, 1992").
3.	District Court Decision
The district court granted Pemcos motion.  Rather than engage in an academic 
discussion of the nice distinctions between issue preclusion and claim preclusion,
 the court proceeded from the broad assumption that questions of disputed fact 
that have been fully and fairly tried between the same parties or their privies in
 a case in which a final resolution has been reached by judgment cannot, in the 
name of good sense and judicial economy, be tried again.  Mem. 2-3.
According to the court, the issues and evidence in EEOCs suit were the same
 as those in the private suit.  Mem. 1.  Indeed, the core factual dispute, 
that is, whether a pervasively hostile racial environment existed at Pemco
 during the relevant time period was, in the courts view, tried to the hilt
 in Thomas.  Id. at 4.  According to the court, the Thomas jury found 
[in special interrogatories] that there had been no racially hostile environment
 at Pemco.  Id. at 2.
Thus, the court stated, the issue boils down to whether or not the EEOC and
 the Pemco employees and former employees it now undertakes to represent are
 in sufficient privity with the plaintiffs in Thomas to preclude further 
litigation of EEOCs suit.  Mem. 3.  Without expressly finding privity, the 
court noted that EEOC had the opportunity to participate in discovery in Thomas
 and that counsel for EEOC with some frequency sat in the courtroom during
 the Thomas trial as an alert and interested observer.  Id.  Further, the 
court noted that EEOC did not rule out the possibility that it could seek 
relief for the Thomas plaintiffs despite the indisputable fact that [they]
 are foreclosed by the final judgments entered against them or in their favor.  
Id. at 3-4.  The court then opined that the issue of preclusion would be only
 slightly less difficult if EEOC had conceded that it could not get relief for 
the Thomas plaintiffs, but when the EEOC insists that it represents all of
 Pemcos black employees, past and present, including the Thomas plaintiffs, 
the EEOC more loudly invites the application of a doctrine of preclusion.  Id. at 6.

The court focused heavily on the sheer size of the EEOCs suit, alleging 
discrimination against all of Pemcos African-American employees.  The court 
explained that it had refused to consolidate the two cases for trial because
 of what it viewed as the severe logistical problems in managing a trial of
 the anticipated size of the cases if tried together.  Mem. 1.  Although the 
EEOC had suggested bifurcating the trial into liability and relief stages, the
 court stated that it would need to try 200 times not only the amount of 
injury but also proximate causation.  Id. at 5 (second trial would mean the 
overwhelming over-exploitation of judicial resources).  Noting that Pemco 
could as easily have had 2,000 as 200 black employees, the court stated, After 
having recently tried 22 discrete claims to a jury, it boggles the courts mind 
to think of trying 200 individual claims, much less 2,000.  Id. at 6.  The court
 acknowledged that, had the Thomas plaintiffs prevailed, it would have had to 
deal with the question of fashioning appropriate relief for all the employees
 covered by EEOCs suit.  Id. at 7.  Since the jury found that no racially
 harassing environment existed at Pemco, however, EEOC is, or should be,
 bound by that finding.  Id.
The court rejected EEOCs contention that it has a special status, and that
 by virtue of its statutory mandate it cannot be precluded by an adjudication
 in another case in which it was not a formal party because it represents a 
larger public interest.  Mem. 6.  The court reasoned, Carrying this idea to
 its logical or illogical conclusion, the EEOCs case could proceed even if the
 named plaintiffs in Thomas had included every black employee and former black
 employee of Pemco.  Id.  The court could not find any public interest in such 
an outlandish expenditure of time and effort.  Id. at 6-7.
The court also rejected EEOCs argument that, in light of  National Railroad
 Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the applicable time frame 
for liability and damages for the alleged hostile work environment in EEOCs 
case would exceed the liability period in Thomas.  Due to the happy accident
that the decision came down during the Thomas trial, the court explained,
 Morgan was actually raised as a guide by th[e] court.  Mem. 4.  The jury 
hear[d] evidence of events that took place long before some of the 36 plaintiffs
 were even employed by Pemco, and earlier events were too remote for judicial 
inquiry.  Id. 
STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo, viewing all facts and 
reasonable inferences in the light most favorable to the nonmoving party.  
Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1203-04 (11th Cir. 2001). 
 Summary judgment is appropriate only when there is no genuine issue as to any 
material fact and the moving party is entitled to judgment as a matter of law.
  Fed. R. Civ. P. 56; Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 
(2000) (Rule 50).  Whether a suit is barred by res judicata is a legal determination, 
subject to de novo review.  Israel Discount Bank v. Entin, 951 F.2d 311, 314 
(11th Cir. 1991). 
SUMMARY OF ARGUMENT
The district court erroneously held that the EEOC is precluded from litigating 
this Title VII enforcement action alleging wide-spread racial harassment of
 African-American employees at Pemco because a jury rejected the individual 
harassment claims of 22 Pemco employees in Thomas v. Pemco, a private suit to 
which the EEOC was not a party.  As a nonparty to the Thomas suit, the EEOC 
can be precluded  whether by res judicata or collateral estoppel  only if 
it was in privity with the plaintiffs in that action.  There is no basis for 
finding that the EEOC was in privity with the Thomas plaintiffs here.
The relationship between the federal government and private plaintiffs suing 
under a federal statute is not sufficiently close to constitute privity since
 the government has an independent interest in law enforcement which private
 parties do not share.  The EEOC is authorized by Title VII to bring its own
 claim, which is separate from the claims of private individuals.  While it
 may seek victim-specific relief, the EEOCs primary role is to enforce the law.
  Therefore, absent special circumstances, the EEOC is not barred by res judicata
 from bringing suit to enforce Title VII merely because private litigants have
previously brought suit challenging the same conduct.
The government can be bound by the judgment in a prior action in which it was 
not a party if it effectively controlled the earlier action.  There is no basis
 for concluding that the EEOC controlled the Thomas litigation.  Although the
 cases were consolidated for discovery purposes, the EEOC did not control the
 filing of the private suit; the choice, preparation or presentation of witnesses
or evidence at trial; legal matters such as the jury instructions; or plaintiffs
 decision not to appeal.  Not only did the EEOC not attempt to direct the
litigation from behind the scenes, it unsuccessfully sought  over Pemcos 
strenuous objections  to have its suit consolidated with the private case 
for trial. 
Even if there were privity, res judicata and collateral estoppel still could 
not be applied to bar EEOCs suit because of the nature of the claims at issue 
in the two suits.  Res judicata precludes relitigation of the same claim, but 
the EEOCs claim is not only different but substantially broader than the 
individual claims in Thomas.  Where, as here, the allegations in an EEOC 
enforcement action are broader than those in a private suit based on the 
same charge, courts including this one have uniformly held that EEOCs suit
 is not precluded by resolution of the private suit.
Collateral estoppel precludes relitigation of issues actually and necessarily
 decided in an earlier action, but the central issue in EEOCs suit -- whether
 a racially hostile work environment existed at Pemco during the relevant time
 frame -- was neither actually nor necessarily decided in Thomas.  The special
 interrogatories, verdicts and even the docket sheet all confirm that the Thomas 
jury actually decided only the narrow question of whether each individual Thomas
 plaintiff was subjected to a hostile or abusive work environment because of 
race.  Since that finding is not necessarily inconsistent with a finding that 
other Pemco employees were exposed to a racially hostile work environment, the 
verdicts would not bar the EEOC from proceeding with this action.
In holding that the EEOCs suit is barred, the district court did not engage
 in an analysis of preclusion law, but instead simply stated that the EEOC is 
or should be bound by the Thomas verdicts because a second trial of the matter
 would be a waste of public resources.  However, the courts suggestion that 
EEOCs claim is somehow derivative of the private claims is simply wrong.  As 
the Supreme Court recently reaffirmed, EEOCs Title VII claims are not derivative
 of the claims of private plaintiffs.  Rather, the statute clearly makes the 
EEOC master of its own case, and it is [EEOCs] province  not that of the 
court  to determine whether public resources should be committed to a particular 
discrimination claim.
The district court made no secret of the fact that it was granting summary 
judgment in part because it did not want to try a second suit involving 200
 or more potential victims.  However, trial of the EEOCs suit need not mean 
trying 200 individual claims since the court could have bifurcated liability 
and relief proceedings, as is typically done in large EEOC suits as well as 
class actions.  In any event, administrative convenience is not an appropriate
 basis for barring the litigation of an EEOC enforcement action particularly
 where, as here, it covers many employees who were never parties to the private
 suit.  If the company and the court had wanted to avoid a second trial, EEOCs 
motions to consolidate the two cases should have been granted.  Having succeeded 
in having a smaller individual suit tried separately, neither Pemco, not the
 court, should be permitted to deny the EEOC (and the other claimants) a day 
in court.
ARGUMENT
THE EEOC IS NOT PRECLUDED FROM BRINGING A TITLE VII ENFORCEMENT ACTION BY 
A PRIOR JUDGMENT IN A PRIVATE ACTION IN WHICH THE EEOC WAS NOT A PARTY.
The district court was faced with two lawsuits alleging that African-American 
employees were subjected to racial harassment at Pemcos Birmingham 
facility  an EEOC enforcement action alleging a pervasive hostile work 
environment at the facility and seeking relief for all of the 200+ 
African-American employees who were affected by the harassment, and an 
action brought by individual African-American employees under 42 U.S.C. 
 1981 alleging that they were subjected to a hostile work environment 
based on race at the same Pemco facility.  Rather than consolidate the 
two actions for trial, as the EEOC urged the court to do, the court permitted 
the private action to go to trial first and then held that the EEOCs broader 
suit was precluded by the adverse judgments in the private action.  This was error.
Under res judicata, a final judgment on the merits bars further claims by 
parties or their privies based on the same cause of action.  Montana v. 
United States 440 U.S. 147, 153 (1979).  Under collateral estoppel, once 
an issue is actually and necessarily determined by a court of competent 
jurisdiction, that determination is conclusive in subsequent suits based 
on a different cause of action involving a party [or privy] to the prior 
litigation.  Id.  Neither of these doctrines is applicable here because 
the EEOC was neither a party nor a privy to a party in the Thomas action.  
Moreover, as Pemco itself acknowledged in opposing consolidation, the EEOCs
 claim in this action is materially different from, and broader than, the
 claims litigated in Thomas, and the core factual dispute in the EEOCs
 action  whether a racially hostile work environment existed at Pemco
 during the relevant time frame  was not decided by the Thomas jury.  
There is therefore no basis in law or fact to bind the EEOC to the judgments
 in the Thomas suit.
A.	There Is No Privity Between The EEOC and The Thomas Plaintiffs.
It is a fundamental principle of American jurisprudence that one cannot be 
bound by a judgment in a suit to which he was not either a party or in 
privity with a party.  Martin v. Wilks, 490 U.S. 755, 761-62 (1989); 
Hansberry v. Lee, 311 U.S. 32, 40 (1940).  Grounded in the due process 
guarantees of the Fifth and Fourteenth Amendments, this rule is part of 
our deep-rooted historic tradition that everyone should have his own 
day in court.  See Richards v. Jefferson County, Ala., 517 U.S. 793, 
798 (1996) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice 
& Procedure  4449 (1981)).  While a judgment or decree among parties to 
a lawsuit resolves issues as among them, therefore, it does not conclude
 the rights of strangers to those proceedings.  Martin, 490 U.S. at 762.
There is no question that the EEOC was not a party in the Thomas action. 
 Therefore, the Commission can be bound by the judgment in that action only 
if it was in privity with the Thomas plaintiffs.  The term privity is a 
flexible one used to describe a relationship between litigants which is 
deemed sufficiently close to justify preclusion.  See, e.g., Richards,
 517 U.S. at 798-99; Southwest Airlines v. Texas Intl Airlines, 546 F.2d
 84, 95 (5th Cir. 1977).3  Outside the context of formal legal relationships
 such as, for example, the relationship between a trustee and trust 
beneficiaries or between a class representative and members of a certified
 class, privity may be found in certain limited circumstances where a 
nonparty has his interests adequately represented by someone with the 
same interests who is a party.  Richards, 517 U.S. at 798-99.  In Richards,
 for example, the Supreme Court noted that non-parties who actually 
controlled earlier litigation can be found to be in privity with the 
parties to that litigation for purposes of preclusion.  Id.
The district court here recognized that whether the Thomas judgment 
precludes the EEOCs enforcement action here turns on the question of
 privity.  Ironically, however, after correctly identifying the question, 
the court never expressly determined whether privity, in fact, exists.
  It does not.
As a general rule, the relationship between the federal government and 
private plaintiffs suing under a federal statute is not sufficiently
 close to support privity since the government has an independent interest
 in law enforcement that private parties do not share.  Accordingly, absent
 special circumstances, the government is not barred by res judicata from 
bringing suit to enforce a federal statute merely because private litigants
 have previously brought suit challenging the same conduct.  See, e.g., 
Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692 (7th Cir. 1986). 
 Thus, in Herman v. South Carolina National Bank, 140 F.2d 1413, 1423-26 
(11th Cir. 1998), for example, this Court held that the Secretary of Labor 
could proceed with an ERISA action despite the resolution of a private
 action against the same defendants since the interests of the private
 parties were different from those of the Secretary.  The Court reasoned
 that, because the Secretary has national public interests separate and
 distinct from those of private litigants, ERISA cases are consistent 
with the well-established general principle that the government is not
 bound by private litigation when the governments action seeks to enforce 
a federal statute that implicates both public and private interests.  Id.
 at 1424-25.  Accord, e.g., Fitzsimmons, 805 F.2d  at 691-94 (applying
 principle even though, besides bringing a separate suit, Secretary had 
participated in joint discovery and had intervened to object to settlement
 in private action).  Similarly, the former Fifth Circuit held that the 
United States would not be barred from pursuing a Voting Rights Act suit
 despite an earlier unsuccessful suit by private plaintiffs.  United States 
v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 (5th Cir. 1979).  
Again, the court of appeals reasoned that the government has an interest 
in enforcing federal law that is independent of any claims of private
 citizens.  See id. at 58-59.
Likewise, here, this Court should hold that the Commission was not 
in privity with the Thomas plaintiffs and, therefore, the Thomas 
judgments do not preclude the Commission from maintaining this
 enforcement action.  When it amended Title VII in 1972 to authorize
 EEOC enforcement actions, Congress contemplated that the EEOC would 
bear the primary burden of litigation.  General Tel. Co. v. EEOC, 
446 U.S. 318, 326 (1980).  While the agency may also seek victim-specific
relief in its suits, the EEOCs primary role is that of a law enforcement
 agency.  In re Bemis, 279 F.3d 419, 421-22 (7th Cir. 2002).  Thus, even 
when it acts for the benefit of specific individuals, EEOC acts also to
 vindicate the public interest in preventing employment discrimination 
and is guided by the overriding public interest in equal employment
 opportunity.  See General Telephone, 446 U.S. at 326.  As the Supreme 
Court recently recognized, Title VII unambiguously authorizes the Commission
 to evaluate the strength of the public interest at stake and to determine 
when it is in the public interest to sue to vindicate federal law.  EEOC v.
 Waffle House, 534 U.S. 279, 291-92 (2002); accord United States v. 
Mississippi Dept. of Pub. Safety, 321 F.3d 495, 499 (5th Cir. 2003) 
(ADA) (quoting Waffle House).  This enforcement role is incompatible 
with a finding that the Commissions authority to bring and maintain 
an enforcement action can be extinguished by a judgment in a private 
suit to which it was not a party.  Holding that it can would undermine
 the EEOCs ability to enforce the law by allowing private parties, 
rather than the EEOC, to dictate when the public interest would be 
vindicated by a separate EEOC enforcement action.
The district court rejected this argument, opining that, after the 
court had spent nearly a month on the Thomas trial, it should not be
 expected to hold another, adding that it could not find any public
 interest in such an outlandish expenditure of time and effort. 
 Mem. 6-7.  Significantly, a second trial would not have been 
necessary had the court simply granted EEOCs motion to consolidate. 
 The court should not be permitted to override EEOCs enforcement 
authority, thereby preventing scores of potential victims from 
obtaining relief for alleged harassment, merely because it would
 be administratively more convenient to substitute trial of a smaller
 private case for trial in EEOCs broader enforcement action.  Addressing 
a similar argument, the Supreme Court recently stated, it is [EEOCs]
 province  not that of the court  to determine whether public resources 
should be committed to the recovery of relief for a particular claim of
 discrimination.  Waffle House, 534 U.S. at 291.
Furthermore, courts have uniformly held that an EEOC enforcement action
 may proceed even where the charging party has agreed to arbitrate or
 has privately resolved his individual claim, although an actual
 resolution may affect the relief that an individual may obtain in 
the EEOCs action.  In Waffle House, the Supreme Court held that, 
even though the charging party had agreed to arbitrate any private 
discrimination claims he had against his employer, that agreement 
did not limit the EEOCs authority to bring an enforcement action
 based on the allegations in his charge and to obtain a full range
of relief for any discrimination that it proved.  534 U.S. at 279 
(adding that it is an open question whether, e.g., settlement or
 arbitration judgment, may affect available relief in EEOC suit). 
 In addition, even before Waffle House, this Court held that where,
 as here, EEOCs allegations of discrimination are broader than the
 allegations in a private suit based on the same charge, EEOCs suit
 is not precluded by resolution of the private suit.  EEOC v. Huttig
 Sash & Door Co., 511 F.2d 453, 454-55 (5th Cir. 1975) (after termination 
of charging partys private suit, EEOC may bring its own suit predicated 
on, but not limited to, the same charge) .4  Accord EEOC v. Kimberly
 Clark Corp., 511 F.2d 1352, 1361-62 (6th Cir. 1975) (adding that EEOC 
is not a privy to private settlement to which it did not agree); see 
also New Orleans Steamship Assn v. EEOC, 680 F.2d 23, 25 (5th Cir. 1982)
 (EEOC may challenge a transaction which was the subject of prior judicial 
scrutiny in a private suit, if the subsequent challenge seeks different relief).
Courts have also held that, although the relief may be limited, the EEOC
 may maintain an enforcement action alleging discrimination against a single 
victim whose individual claim was previously resolved.  See EEOC v. Harris
 Chernin, 10 F.3d 1286, 1291-92 (7th Cir. 1993) (finding no privity
 between EEOC and individual who already lost his ADEA suit such that
 private suit would bar EEOC from seeking injunctive relief); EEOC v.
 Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987) 
(employees settlement rendered her personal claims moot but EEOC 
could proceed for injunctive relief).  Neither the district court
 nor Pemco cited any authority to the contrary.5
Accordingly, the EEOC is not in privity with the Thomas plaintiffs 
simply by virtue of the fact that private litigants have previously 
brought suit challenging the same conduct at issue in this case. 
 The EEOC could still be bound if it were attempting to relitigate 
in this action an issue actually determined in a private suit where
 the agency, though not a party, controlled the original litigation.
  See Montana v. United States, 440 U.S. 147 (1979).  From the Supreme
 Courts explanation of that exception, however, it is clear that it
 does not apply to this case.  In Montana, both the United States and 
an individual contractor disputed the constitutionality of a state 
receipts tax.  Initially opting to challenge the tax indirectly, the 
government had the contractor file suit in state court, reviewed and 
approved the complaint, paid the attorneys fees and costs, directed 
the appeal to the state supreme court, filed a brief as amicus curiae,
 directed the filing of a notice of appeal to the U.S. Supreme Court
 and then effectuated the abandonment of that appeal when the government 
filed its own suit in federal court.  Id. at 154-55 (noting that government
 conceded that it controlled state litigation).  Rejecting an argument that
 the government should not be barred from challenging issues adversely decided 
in the original suit, the Supreme Court reasoned that persons for whose benefit
 and at whose direction a cause of action is litigated cannot be said to be
 strangers to the cause.  See id. at 154-56.  Given its level of involvement,
 the Court concluded, the United States plainly had a sufficient laboring 
oar in the conduct of the state-court litigation to actuate principles of
 estoppel.  Id. at 155.6
In contrast, here, the EEOC plainly did not have a sufficient laboring
 oar in the Thomas litigation to actuate principles of estoppel.  Unlike 
the government in Montana, the EEOC did not control the filing of the private 
suit; the choice, preparation or presentation of witnesses or evidence at
 trial; legal matters such as the jury instructions; or plaintiffs decision 
not to appeal.  Furthermore, and significantly, not only did the EEOC not 
attempt to direct the litigation from behind the scenes, it actively sought
  over Pemcos strenuous objections  to have its suit consolidated with 
the private case for trial.  Cf. Perez v. Volvo Car Corp., 247 F.3d 303, 
312 (1st Cir. 2001) (no privity unless nonparty, at a minimum, had an 
opportunity to join the earlier suit).  That the EEOC participated in
 joint discovery and an EEOC attorney attended part of the Thomas trial 
fall far short of the level of control required to bind a nonparty to a 
judgment in a prior lawsuit.  There is, therefore, no reason here to depart
 from the general rule that the government is not bound by a judgment in a 
private suit to which it was not a party.
In reaching its contrary conclusion, the district court did not attempt to 
fit the case into any specific theory of preclusion or privity.  See, e.g.,
 Mem. 2-3 (eschewing nice distinctions between collateral estoppel and res
 judicata).  Rather, the court asserted in general terms that, in its view,
 there was one controversy, one core factual dispute  whether a racially
 hostile work environment existed at Pemco.  Since, the court remembered,
 that controversy had been litigated to the hilt and finally disposed
 of in the Thomas litigation, even though the denial of its motions to 
consolidate relegated the EEOC to the role of alert and interested 
observer of that litigation, the agency is or should be bound by the 
Thomas judgment.  See generally id. at 2-7.
Initially, we note that the Thomas litigation did not resolve the question
 of whether a racially hostile work environment existed at Pemco; the
 individual verdicts were in fact significantly more narrow.  See infra 
at 34-37.  More importantly, however, the courts suggestion that the 
EEOCs claim was somehow derivative of the private claims reflects a 
fundamental misunderstanding of the nature of Title VII.  As the Supreme
 Court recently reaffirmed, EEOCs claim is not merely derivative of 
claims brought by private plaintiffs, nor is EEOC . . . merely a proxy 
for the victims of discrimination.  Waffle House, 534 U.S. at 288, 297-98 
(citing General Telephone, 446 U.S. at 326); see also id. at 288 (EEOC 
does not function simply as a vehicle for conducting litigation on behalf
 of private parties).  Rather, as noted above, Title VII clearly makes
 the EEOC the master of its own case, authorizing the EEOC to bring its
 own suit and to allege its own claim, which is separate from and independent
 of private claims challenging similar conduct by an employer.  See id. at
 286, 291.  Just as private litigation does not resolve the separate claims 
of other federal agencies, therefore, the Thomas litigation did not resolve
 the EEOCs separate claim in this case.7
In its pleadings below, Pemco argued that the EEOC should be barred
 because its interests were so closely aligned with those of the 
Thomas plaintiffs that those plaintiffs were the EEOCs virtual
 representatives.  In fact, absent a familial relationship between
 the party and nonparty (see, e.g., Jaffree v. Wallace, 837 F.2d 1461,
 1467 (11th Cir. 1988) (familial relationship is important though 
not conclusive factor)), there are few cases where this Court has found
 virtual representation under federal law  in none, has a federal agency
 been held precluded.  Nor would a finding of virtual representation be
 appropriate here.  This Court has held that whether a party is a virtual
 representative of the interest of a non-party is a question of fact.  
Mesa Petroleum Co. v. Coniglio,  787 F.2d 1484, 1489-90 (11th Cir. 1986).
  Factors relevant to such a finding include participation in the first 
litigation, apparent consent to be bound, apparent tactical maneuvering, 
[and] close relationships between the parties and nonparties.  Jaffree, 
837 F.2d at 1467.  As for the requisite close relationship, it requires
 an express or implied legal relationship in which parties to the first
 suit are accountable to non-parties who file a suit raising identical 
issues.  See, e.g., Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir. 
1978), cited with approval in Mann v. City of Albany, Ga., 883 F.2d 999,
 1004 (5th Cir. 1989).  See also Dills v. City of Marietta, Ga., 674 F.2d 
1377, 1379-80 (11th Cir. 1982) (refusing to reconsider Pollard rule); cf. 
Tice v. American Airlines, 162 F.3d 966, 971 (7th Cir. 1999) (general 
question is whether the earlier parties were in some sense proper agents
 for the later parties).
None of these factors supports a finding of privity in this case.  As a 
law enforcement agency, the EEOC has interests which are different from 
those of the Thomas plaintiffs.  While private parties sue to secure 
specific personal relief, the EEOC exists to advance the public interest 
in preventing and remedying employment discrimination.  General Telephone, 
466 U.S. at 331; Riddle v. Cerro Wire & Cable Group, 902 F.2d 918, 922 (11th
 Cir. 1990).  Thus, here, the private suit focused on the harassment each 
individual plaintiff had experienced; it did not address the EEOCs concern 
with the alleged overall racially hostile work environment.  Moreover, the
 Thomas plaintiffs were in no way legally accountable to the EEOC or the
 165+ other Pemco employees covered by the EEOCs suit.  The EEOC, which 
sought to obtain relief for those employees, was denied  at Pemcos request
  the opportunity to actively participate in the trial.   The limited role
 permitted to the EEOC  merely participating in joint discovery, consulting
 with Thomas counsel and attending parts of the trial  is not enough to
 support a finding of privity.  See, e.g., Benson & Ford v. Wanda Petroleum, 
833 F.2d 1172, 1174 (5th Cir. 1987) (no privity even though nonparty testified
 in private suit, party and nonparty met to discuss their common interest and 
used the same attorney).  No one has suggested that EEOC consented to be bound
 by the private suit or engaged in apparent tactical maneuvering.
In urging the district court to find privity, Pemco relied on NAACP v. Hunt, 
891 F.2d 1555 (11th Cir. 1990).  See R.52 (SJ Memorandum at 2, 7-8); R.56 
(Reply at 8).  The Hunt Court, applying Alabama law, held that a legal 
challenge to the constitutionality of Alabamas practice of flying the Confederate 
flag atop the state capitol was barred by the adverse judgment in a suit brought 
13 years earlier challenging the same practice.  The Court concluded that, since
 the later plaintiffs as well as the original plaintiff were both state 
legislators and members of the NAACP  the NAACP was also a party in the second 
suit  the original plaintiff was so closely aligned to the NAACPs interests 
in the original suit that he was their virtual representative.  Id. at 1560-61. 
 By analogy to Hunt, Pemco argued that the interests of the Thomas plaintiffs 
were so closely aligned to those of EEOC that they were the EEOCs virtual
 representatives.  SJ Memorandum at 7-8. 
There are a number of reasons why Hunt does not support the district courts ruling 
in this case.  First, Hunt applied Alabama law of preclusion.  891 F.2d at 1560. 
 While the matter was previously in some doubt, this Court recently held unequivocally 
 that federal preclusion principles apply to prior federal decisions, whether 
previously decided in diversity or federal question jurisdiction.  CSX Transp., 
Inc. v. Brotherhood of Maint. of Way Employees, 327 F.3d 1309, 1316-17 (11th Cir.
 2003); see also Aerojet-General Corp. v. Askew, 511 F.2d 710, 715-16 (5th Cir.
 1975) ([f]ederal law clearly governs the question whether a prior federal court 
judgment based on federal question jurisdiction is res judicata in a case also 
brought . . . under federal question jurisdiction).  Federal privity principles 
 require a closer relationship between the party and nonparty than was apparent 
in the Hunt case.  See Pollard, 578 F.2d at 1008 (requiring some sort of express
 or implied legal relationship in which parties to the first suit are accountable 
to non-parties who file suit raising identical issues).
Hunt can also be distinguished on the ground that, unlike this case and the Thomas
 case, Hunt involved a public law issue  the constitutionality of flying the
 Confederate flag atop the state capitol  which impacted the plaintiffs private
 interests only indirectly.  The Supreme Court has suggested that fairness concerns 
may be lessened when a plaintiff challenges public action such as an alleged 
misuse of public funds (or flag flying) that has only an indirect impact on his 
interests.  Richards, 517 U.S. at 802-03.  See also Los Angeles Branch NAACP v.
 Los Angeles Unified Sch. Dist., 750 F.2d 731, 741 (9th Cir. 1984) (finding privity 
under virtual representation theory in school desegregation case, explaining that 
if parties were allowed continually to raise issues already decided, public law 
claims would assume immortality).
Finally, and significantly, Alabama preclusion law has changed materially since
 Hunt was decided.  Specifically, in two post-Hunt decisions, the Supreme Court 
narrowed Alabamas approach to privity.  See South Central Bell Tel. Co. v. 
Alabama, 526 U.S. 160, 167 (1999); Richards, 517 U.S. at 795.  Both South 
Central Bell and Richards involved challenges to state tax laws; in each, 
the Supreme Court held that Alabamas approach to privity was too extreme; 
parties that the Alabama Supreme Court had held were bound by prior judgments
 were in fact not bound.  Preclusion was inappropriate, the Court reasoned, 
because the original plaintiffs had neither sued on behalf of a class nor 
understood their suit to be on behalf of the second set of taxpayers; the 
judgment did not purport to bind any nonparty taxpayers; and the courts in 
the original cases had made no special efforts to protect the interests of 
the later plaintiffs.  See South Central Bell, 526 U.S. at 168 (adding that 
analysis did not change even though nonparties had agreed to stay their suit
 pending resolution of the original one); Richards, 517 U.S. at 801-02 (noting 
that to have binding effect on absent parties, a prior proceeding must be so 
devised and applied as to insure not only that the litigation is so conducted 
as to insure the full and fair consideration of the common issue but also that 
those present are of the same class as those absent).  The nonparties were, 
therefore, mere strangers to the earlier suits.
Applying similar standards here, the EEOC likewise was effectively a 
stranger to the Thomas suit.  Like the original plaintiffs in Richards 
and South Central Bell, the Thomas plaintiffs did not represent a class
 nor could they reasonably have understood their suit to be on behalf of
 other employees or the EEOC  they elected to proceed as individual 
plaintiffs after Pemco opposed class certification.  Thomas ## 22-24.  
In addition, the judgment they received  based on the 22 individual jury 
verdicts and the nine accepted offers of judgment  did not purport to bind 
anyone other than the parties.  Nor can it be said that the court took care
 to protect the interests of the nonparties or to ensure that those present 
were of the same class as those absent.  See Tice, 162 F.3d at 972 (under 
Richards, nonparties interests cannot be considered sufficiently aligned 
with those of earlier litigants unless earlier litigants would have been 
adequate class representatives for later litigants).  On the contrary, the 
courts reasons for denying EEOCs motion to consolidate the two suits did
 not include a finding that nonparties rights would be adequately protected 
by a trial in the narrower private suit; the court instead acknowledged that
 it was motivated by perceived logistical problems.  See Mem. 4-7.
Moreover, the EEOC is clearly not of the same class as the private plaintiffs.
  As a federal enforcement agency, EEOC does not sue as a Rule 23 class 
representative (see General Telephone, 446 U.S. at 327), and it could not
 reasonably be considered a member of any class represented by private
 plaintiffs.  As for the approximately 165 African-American employees who
 were never parties to the Thomas case, there is no evidence that the court 
gave any thought to whether the Thomas plaintiffs could adequately represent
 a class to which those other employees were members.  And since Pemco opposed
 class certification, it may be assumed that the company believed they could
 not properly represent the other employees.
In short, there is no basis for concluding that the EEOC was in privity with
 the Thomas plaintiffs.  Consistent with the dictates of fundamental fairness,
 therefore, we urge this Court to hold that the EEOC is not bound by the 
judgment in that case.
B.	Even if The EEOC Were in Privity With the Thomas Plaintiffs, This 
Action Would Not Be Precluded Because of the Differences in the Claims in 
the Two Cases.
Even if there were privity, res judicata and collateral estoppel still could
 not be applied to bar EEOCs suit because of the nature of the claims at 
issue in the two suits.  Res judicata precludes relitigation of claims 
based on the same cause of action.  Montana, 440 U.S. at 153.  As Pemco 
itself stressed in opposing consolidation, however, the EEOCs cause of
 action is materially different from those of the private plaintiffs.8 
 The private plaintiffs effectively litigated 22 individual harassment
 claims.  The EEOC, in contrast, would be litigating first the question
 of whether a hostile work environment existed generally and only 
secondarily whether any particular claimant is entitled to relief.  An 
adverse judgment in an individual case does not bar a subsequent 
pattern-or-practice claim any more than an adverse judgment in a 
pattern-or-practice claim precludes later litigation of individual 
claims.  See Cooper v. Federal Res. Bank, 467 U.S. 867, 157-58 (1984)
 (crucial difference between individual and class claims is that
focus at liability stage of pattern-or-practice trial is on pattern 
of discriminatory decisionmaking rather than on individual employment 
decisions); cf. Falcon v. General Tel. of the S.W., 457 U.S. 147, 157-58 
(1982) (validity of individual claim does not alone establish validity of
 class claim).
The scope of the EEOCs claim is also significantly broader than the 
claims in the private suit. EEOC has identified approximately 165 potential
 victims of the alleged racial harassment who were not parties to the Thomas 
suit at any time.  Under res judicata, however, when a plaintiff obtains a 
judgment in his favor, his claim merges in the judgment; he may seek no 
further relief on that cause of action in a separate action.  Empire Fire
 & Marine Ins. Co. v. J. Transport, 880 F.2d 1291, 1295 (11th Cir. 1989). 
 If the EEOCs claim were res judicata in light of the Thomas judgment,
therefore, it would merge into the judgment in the Thomas suit, and 
none of the other Pemco employees could have recovered any relief even 
if all 22 Thomas plaintiffs had won at trial.  Yet even the district court 
recognized that it could not have dismissed the EEOCs case if the jury had 
rendered favorable verdicts in Thomas.  Mem. 7.  It would thus be highly
inappropriate to hold that the EEOCs claim is precluded under res judicata
 principles by the judgment in the narrower Thomas suit.9
As for collateral estoppel, it precludes relitigation of any issue that was
 actually and necessarily determined in the earlier suit.  See Montana,
 440 U.S. at 153.  Here, however, the issue central to the EEOCs suit  
whether a racially hostile work environment existed at Pemco during the
relevant time frame  was neither actually nor necessarily determined in
 the earlier litigation.  On the contrary, the Thomas jury completed a 
separate verdict form for each of the 22 Thomas plaintiffs, finding as 
to each that he was not subjected to a hostile or abusive work environment
because of his race.  See Thomas ## 226-47;  Trial Transcript at 19, 39-43 
(explaining special interrogatories); id. at 56-60 (reading 22 separate 
verdicts).  This need not have been because the jury found no racially
 hostile work environment  the jury instead could have concluded, for 
example, that the specific plaintiff was not exposed to the worst
 harassment or did not subjectively find the incidents he was subjected
 to especially objectionable.  Compare R.16 (Response to EEOCs 2d 
Consolidation Motion at 3) (Proof that others have experienced objectionable 
conduct is the heart of [EEOCs] case whereas it could be totally irrelevant 
(not to mention objectionable and prejudicial) in [Thomas].).  Although the
 district court remembered the Thomas jury as having determined that no hostile 
work environment existed at Pemco (Mem. 2), the special interrogatories, verdicts
 and even the docket sheet (none of which Pemco quoted or attached to its motion)
 confirm that the jury made no such finding.  The verdicts in the Thomas case would 
therefore not collaterally estop the EEOC from attempting to prove the existence of
 a racially hostile work environment at Pemco during the relevant time period.
C.	Logistical Problems Cannot Justify Dismissal of the EEOCs Action.
The district court made no secret of the fact that it was granting summary judgment
 in large part because it did not want to try a suit involving 200 or more potential
 victims.  See Mem. 6 (mere idea boggles the courts mind).  However, that simply
 is not an appropriate basis for barring the litigation of an EEOC enforcement action.
In the first place, as the EEOC pointed out in its pleadings below (Mem. 5), trial 
of the EEOCs case need not mean trying 200 individual claims.  Rather, the issues 
of liability and relief could be bifurcated  along the lines approved in EEOC v.
 Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001), for example.  Courts have
 approved the use of bifurcation in large suits, even where damages are at 
issue.  See, e.g., Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir. 
1999) (permitting use of bifurcation in class tort action); cf. NAACP v. City 
of Evergreen, Ala., 693 F.2d 1367, 1370 n.2 (11th Cir. 1982) (explaining
 bifurcated proceedings in Title VII class suit).  At Stage 1, the jury 
would determine whether a hostile environment existed at Pemco and, if so,
 during what time frame; the jury could also make determinations concerning
 punitive damages.  Once those liability parameters were set, the jury in
 Stage 2 would determine only whether and to what degree each claimant was 
injured by the harassment; indeed, depending on the parameters, EEOC might
 itself decide that specific individuals should be excluded from the group
 covered by the suit.  Notwithstanding the availability of compensatory
 damages, the trial would not be materially different from earlier bifurcated
 proceedings where, once liability was established, the factfinder was required
to determine monetary relief for large numbers of claimants.  Teamsters v. 
United States, 431 U.S. 324 (1977), for example, involved hundreds of 
potential claimants  and individual backpay claims  nationwide. 
In any event, if Pemco had wanted to avoid retrying any of the issues
relating to the alleged racially hostile work environment, it should
 not have opposed consolidating EEOCs suit with the Thomas suit for 
trial (and/or certifying the plaintiff class, assuming the Rule 23(a)
 elements were met).  As it is, if the judgment stood, Pemco would achieve
 the benefits of trying and winning a broad EEOC enforcement action as
 well as a certified class action merely by defending against the claims 
of a fraction of the potential victims.  Cf. Becherer v. Merrill Lynch, 
Pierce, Fenner & Smith, 193 F.3d 415, 427 (6th Cir. 1999) (en banc) 
(noting that virtual representation doctrine is inapplicable in case where
 original class was never certified, because it would effect an end run
 around the limitations of Rule 23"); Tice, 162 F.3d at 973 (little point 
in having Rule 23 if courts could ignore its careful structure and create 
de facto class actions at will).  Having succeeded in having the smaller
 individual suit tried separately, neither Pemco  nor the court  should 
be permitted to deny the EEOC (and the remaining claimants) a day in court.
CONCLUSION
For the foregoing reasons, the Commission asks this Court to reverse the 
judgment and remand the case to the district court for further proceedings.
Respectfully submitted,

NICHOLAS M. INZEO
Acting Deputy General Counsel

PHILIP B. SKLOVER
Associate General Counsel

VINCENT J. BLACKWOOD
Assistant General Counsel

						

________________________________
BARBARA L. SLOAN
Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of the General Counsel
1801 L Street, N.W.
Washington, D.C.  20507
(202) 663-4721
CERTIFICATE OF COMPLIANCE
In accordance with Federal Rule of Appellate Procedure 32, I certify that 
this brief was prepared with Courier New (monospaced)  typeface, 12 point 
font, and contains 9469 words, from the Statement of Jurisdiction through 
the Conclusion, as determined by the Word Perfect 9 word counting program.




____________________________
Barbara L. Sloan

CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief of the Equal 
Employment Opportunity Commission as Appellant were mailed this 30th day 
of June, 2003, by express mail, postage prepaid, to:

Stephen E. Brown
Jeffrey A. Lee
MAYNARD, COOPER & GALE PC
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_____________________________
Barbara L. Sloan



As for collateral estoppel, it precludes relitigation of any issue that was
 "actually and necessarily determined" in the earlier suit. See Montana, 
440 U.S. at 153. Here, however, the issue central to the EEOC's suit - 
whether a racially hostile work environment existed at Pemco during the
 relevant time frame - was neither actually nor necessarily determined 
in the earlier litigation. On the contrary, the Thomas jury completed a
 separate verdict form for each of the 22 Thomas plaintiffs, finding as 
to each that he "was not subjected to a hostile or abusive work environment 
because of his race." See Thomas ## 226-47; Trial Transcript at 19, 39-43 
(explaining special interrogatories); id. at 56-60 (reading 22 separate 
verdicts). This need not have been because the jury found no racially hostile 
work environment - the jury instead could have concluded, for example, that 
the specific plaintiff was not exposed to the worst harassment or did not 
subjectively find the incidents he was subjected to especially objectionable. 
Compare R.16 (Response to EEOC's 2d Consolidation Motion at 3) ("Proof that
 others have experienced objectionable conduct is the heart of [EEOC's] case 
whereas it could be totally irrelevant (not to mention objectionable and
 prejudicial) in [Thomas]."). Although the district court remembered the 
Thomas jury as having determined that no hostile work environment existed 
at Pemco (Mem. 2), the special interrogatories, verdicts and even the docket
 sheet (none of which Pemco quoted or attached to its motion) confirm that 
the jury made no such finding. The verdicts in the Thomas case would therefore
not collaterally estop the EEOC from attempting to prove the existence of a
 racially hostile work environment at Pemco during the relevant time period.
C. Logistical Problems Cannot Justify Dismissal of the EEOC's Action.
The district court made no secret of the fact that it was granting summary 
judgment in large part because it did not want to try a suit involving 200 
or more potential victims. See Mem. 6 (mere idea "boggles the court's mind").
 However, that simply is not an appropriate basis for barring the litigation
 of an EEOC enforcement action.
In the first place, as the EEOC pointed out in its pleadings below (Mem. 5), 
trial of the EEOC's case need not mean "trying 200 individual claims." Rather,
 the issues of liability and relief could be bifurcated - along the lines 
approved in EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001), for 
example. Courts have approved the use of bifurcation in large suits, even 
where damages are at issue. See, e.g., Mullen v. Treasure Chest Casino, 
186 F.3d 620 (5th Cir. 1999) (permitting use of bifurcation in class tort 
action); cf. NAACP v. City of Evergreen, Ala., 693 F.2d 1367, 1370 n.2
 (11th Cir. 1982) (explaining bifurcated proceedings in Title VII class 
suit). At Stage 1, the jury would determine whether a hostile environment 
existed at Pemco and, if so, during what time frame; the jury could also
 make determinations concerning punitive damages. Once those liability
 parameters were set, the jury in Stage 2 would determine only whether 
and to what degree each claimant was injured by the harassment; indeed,
 depending on the parameters, EEOC might itself decide that specific 
individuals should be excluded from the group covered by the suit.
 Notwithstanding the availability of compensatory damages, the trial
 would not be materially different from earlier bifurcated proceedings
 where, once liability was established, the factfinder was required to 
determine monetary relief for large numbers of claimants. Teamsters v. 
United States, 431 U.S. 324 (1977), for example, involved hundreds of
 potential claimants - and individual backpay claims - nationwide. 
In any event, if Pemco had wanted to avoid retrying any of the issues 
relating to the alleged racially hostile work environment, it should
 not have opposed consolidating EEOC's suit with the Thomas suit for 
trial (and/or certifying the plaintiff class, assuming the Rule 23(a)
 elements were met). As it is, if the judgment stood, Pemco would achieve 
the benefits of trying and winning a broad EEOC enforcement action as well
 as a certified class action merely by defending against the claims of a
 fraction of the potential victims. Cf. Becherer v. Merrill Lynch, Pierce,
 Fenner & Smith, 193 F.3d 415, 427 (6th Cir. 1999) (en banc) (noting that 
virtual representation doctrine is inapplicable in case where original class
 was never certified, because it would "effect an end run around the limitations 
of Rule 23"); Tice, 162 F.3d at 973 ("little point in having Rule 23 if courts 
could ignore its careful structure and create de facto class actions at will"). 
Having succeeded in having the smaller individual suit tried separately, neither
 Pemco - nor the court - should be permitted to deny the EEOC (and the remaining
 claimants) a day in court.
CONCLUSION
For the foregoing reasons, the Commission asks this Court to reverse the judgment
 and remand the case to the district court for further proceedings.
Respectfully submitted,


NICHOLAS M. INZEO
Acting Deputy General Counsel


PHILIP B. SKLOVER
Associate General Counsel


VINCENT J. BLACKWOOD
Assistant General Counsel




________________________________
BARBARA L. SLOAN
Attorney


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of the General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4721
CERTIFICATE OF COMPLIANCE
In accordance with Federal Rule of Appellate Procedure 32, I certify that 
this brief was prepared with Courier New (monospaced) typeface, 12 point
 font, and contains 9469 words, from the Statement of Jurisdiction through
 the Conclusion, as determined by the Word Perfect 9 word counting program.

____________________________
Barbara L. Sloan


CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief of the Equal Employment 
Opportunity Commission as Appellant were mailed this 30th day of June, 2003, by
 express mail, postage prepaid, to:


Stephen E. Brown
Jeffrey A. Lee
MAYNARD, COOPER & GALE PC
AmSouth Harbert Plaza, Suite 2400
1901 Sixth Avenue, North
Birmingham, AL 35203-2618


_____________________________
Barbara L. Sloan 
1. The district court mistakenly stated that discovery was closed in the
EEOC's case as well. Mem. 2. In fact, discovery was still ongoing in this
 suit. See, e.g., R.102 (9/10/02 Order inter alia granting Pemco's motion 
seeking "extension of discovery"). 
2. In the interim between the two consolidation motions, several of the
 plaintiffs had been dismissed for procedural reasons. See, e.g., Thomas 
## 59-60 (dismissing Levi Billups). 
3. Decisions of the Fifth Circuit issued prior to October 1981 are binding 
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1201 
(11th Cir. 1981). 
4. Pemco attempted to distinguish Huttig Sash below on the ground that Huttig 
Sash was voluntarily dismissed (with prejudice) whereas Thomas was fully tried.
 That is a distinction without a difference. While res judicata requires "a 
final judgment on the merits," the requirement is satisfied by dismissal of
 a complaint with prejudice pursuant to a settlement and/or stipulated dismissal
 under Rule 41(a). Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 327 
(1955) (judgment dismissing suit "with prejudice" bars later suit on same
 cause of action); Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498,
 1501-02 (11th Cir. 1990) (same). 
5. There is dicta in Huttig Sash to the effect that, after the "termination 
of the aggrieved person's suit," the EEOC would be barred by res judicata
 from "filing suit on that particular charge and on behalf of that person 
who had his suit adjudicated." 511 F.2d at 456. It is not clear whether 
this statement can be reconciled with the later holdings in General Telephone 
and Waffle House that the EEOC's claims are not derivative of the claims of 
the charging party. However, this Court need not resolve the issue because the 
question of whether any of the Thomas plaintiffs can obtain relief has no 
relevance to this appeal; it would become relevant only in the relief stage 
of the case. As noted above, approximately 165 other employees were potentially 
affected by the alleged harassment. Under Huttig Sash, the Thomas judgments 
"do[] not cut off the EEOC's right to bring suit to end practices discovered
 through the investigation of the charge[s] filed by [the Thomas plaintiffs]."
 511 F.2d at 456. Since the complaint in this action alleges violations that go
 beyond the claims of the Thomas plaintiffs, there is no question that the action 
can proceed. 
6. See also Schnell v. Peter Eckrich & Sons, 365 U.S. 260, 262 & n.4 (1961) 
(nonparty acting as "puppeteer" of party would be bound by judgment); Restatement
 (Second) of Judgments  39, com. c (1982) (requiring that person "have effective
 choice as to the legal theories and proofs to be advanced" as well as control 
over the decision to appeal). 
7. Ironically, because individuals' private interests may conflict with 
the broader public interests of the EEOC, individuals who reject the 
relief to which they would be entitled from an EEOC suit are not bound
by that judgment or relief; EEOC's suit is not preclusive of their private 
rights. See, e.g., General Telephone, 446 U.S. at 333; Riddle v. Cerro Wire 
& Cable Group, 902 F.2d 918, 922 (11th Cir. 1990). The district court's approach
 in this case, however, would have the anomalous effect of binding the EEOC 
to the judgment in a private suit even though those private individuals would
not be bound by a judgment in EEOC's suit. Cf. East Baton Rouge Parish School 
Bd., 594 F.2d at 58 n.6 (although government suit may sometimes be preclusive 
of rights of individual citizens, doubting without deciding that converse is
 also true). 
8. "The [Thomas] case consists of thirty-one (31) individual cases filed
 together. Each of the thirty-one Plaintiff's cases . . . must stand on
 its own merits. The EEOC's case is obviously much broader in that it does 
not allege that any particular employee has been subjected to a hostile
 environment. Instead, it alleges class-wide discrimination and opens the 
door to evidence that would be potentially wholly inadmissible in [Thomas]
. . . ." R.30 (Defs' Response to EEOC's 2d Consolidation Motion at 3). 
9. A further difference between the two suits is the applicable time frame 
for liability and damages. The Supreme Court has held that as long as at
 least one act contributing to the hostile environment occurred within 
the charge-filing period, an employer may be liable, and damages may be 
assessed, based on the entire period during which a hostile work environment 
existed. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,2 S. Ct.
 2161, 2074-76 (2002). See also Watson v. Blue Circle, 324 F.3d 1252, 1258-59 
(11th Cir. 2003) ("hostile work environment, although comprised on a series 
of separate acts, constitutes one 'unlawful employment practice'"; liability 
may be based on entire period if at least one act occurred within charge-filing
 period); Shield v. Fort James Corp., 305 F.3d 1280 (11th Cir. 2002) (same standard
 for  1981 claims). Contrary to the district court's assertion (Mem. 4), however,
 the jury in Thomas was instructed that the applicable "time frame" for liability
 and damages extended only from "December 9, 1997, until the last witness
 testified," i.e., from two years before suit was filed. (Trial Transcript 
at 19). See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989)
 (two-year limitations period for  1981 claims in Alabama). Consistent with 
Morgan, a jury in EEOC's case, however, could consider incidents occurring 
before December 9, 1997, not only as background evidence but also for purposes 
of determining liability and damages.