EEOC v. Jefferson Dental Clinics (5th Cir.)
May 3, 2006
Brief as appellee

                           No. 06-10090

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                 
EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

               Plaintiff-Appellee,
v.

JEFFERSON DENTAL CLINICS, P.A.,

               Defendant-Appellant.
                  ______________________________

         On Appeal from the United States District Court 
               for the Northern District of Texas
                 District Court No. 3:04-cv-1892
                  ______________________________

                  BRIEF OF THE EQUAL EMPLOYMENT 
               OPPORTUNITY COMMISSION AS APPELLEE
                  ______________________________

JAMES L. LEE
Deputy General Counsel

LORRAINE C. DAVIS
Acting Associate General Counsel

CAROLYN L. WHEELER
Assistant General Counsel
                              
JENNIFER S. GOLDSTEIN         EQUAL EMPLOYMENT OPPORTUNITY
Attorney                        COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W.
                              Washington, DC  20507
                              (202) 663-4733

                STATEMENT REGARDING ORAL ARGUMENT

     The Commission believes oral argument would be helpful to explain  how the
Supreme Court's ruling in EEOC v. Waffle House, 534 U.S. 279 (2002), governs
questions about the relationship between the EEOC and private individuals when the
EEOC pursues a Title VII claim.  Oral argument would also be helpful to explain the
distinction  between the Title VII enforcement mechanism, at issue in Waffle House,
and the enforcement mechanism of the Age Discrimination in Employment Act
(ADEA).  While this distinction was already recognized and addressed by this Court
in Vines v. University of Louisiana at Monroe, 398 F.3d 700 (5th Cir. 2005), cert.
denied, 126 S.Ct. 1019 (2006), it appears from defendant's brief that the significance
of the distinctions between Title VII and the ADEA on the analysis of privity is not
well understood.

                        TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT  .............................................. i
TABLE OF AUTHORITIES .......................................................... iii
STATEMENT OF THE ISSUE .......................................................... 1
STATEMENT OF THE CASE ........................................................... 1
STATEMENT OF FACTS .............................................................. 1
SUMMARY OF ARGUMENT ............................................................. 7
STANDARD OF REVIEW  ............................................................ 10
ARGUMENT
     The Waffle House holding that, under Title VII, EEOC acts to vindicate
     the public interest means that the interests of the EEOC and the 
     charging parties are not "identical," as required to establish privity
     under Texas law...........................................................  11
     
CONCLUSION ..................................................................... 31

CERTIFICATE OF SERVICE  ........................................................ 32

CERTIFICATE OF COMPLIANCE ...................................................... 33
     

                      TABLE OF AUTHORITIES
                                
CASES  
Alcon Assocs. v. Odell Assocs., No. 04-22151, 2005 WL 3579057 
   (D.S.C. Dec. 29, 2005) .....................................................  23

Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996) ........ 12, 24, 26, 28, 29

Bauman v. Jacobs Suchard, 136 F.R.D. 460 (N.D. Ill. 1990) ...................... 22

Benson v. Wanda Petroleum, 468 S.W.2d 361 (Tex. 1971) ...................10, 13, 29

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997) ............. 11

Dennis v. First State Bank of Tex., 989 S.W.2d 22 (Tex.App.-Fort Worth 1998) ... 20

EEOC v. Bd. of Regents of the Univ. of Wisc. Sys., 288 F.3d 296
   (7th Cir. 2002) ............................................................. 17

EEOC v. Georgia Pac. Corp., No. 69-101, 1975 WL 267 (D.Or. Nov. 10, 1975) ...    22
 
EEOC v. Int'l Profit Assocs., 206 F.R.D. 215 (N.D. Ill. 2002) .................. 22

EEOC v. Johnson & Higgins, Inc.,  No. 93-5481, 1998 WL 778369 
   (S.D.N.Y. Nov. 6, 1998) ..................................................... 22

EEOC v. HBE Corp.,  No. 93-722, 1994 WL 376273 (E.D. Mo. May 19, 1994) ....      22

EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280 (11th Cir. 2004), 
   cert. denied, 126 S.Ct. 42 (2005) ....................................... 17, 26

EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir. 2006) ........................ 17

EEOC v. TIC - The Indus. Co., No. 01-1776, 2002 WL 31654977 
   (E.D. La. Nov. 21, 2002) .................................................... 22

EEOC v. U.S. Steel Corp., 921 F.2d 489 (3d Cir. 1990) .......................... 18

EEOC v. Waffle House, 534 U.S. 279 (2002) ....... i, 13, 14, 15, 16, 19, 20, 26, 27

General Telephone v. EEOC, 446 U.S. 316 (1980) ............................. 13, 19

Grimm v. Rizk, 640 S.W.2d 711 (Tex.App.-Hous. 1982) ........................ 13, 20

In re Bemis Co., 279 F.3d 419 (7th Cir. 2002) .................................. 20

In re Estate of Ayala, 986 S.W.2d 724 (Tex.App.-Corpus Christi 1999) ..........  20

Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605 (Tex. 2004) ......24

Jones v. Bell Helicopter, 614 F.2d 1389 (5th Cir. 1980) ........................ 18
                                                  
Kirby Lumber Corp. v. S. Lumber Co., 196 S.W.2d 387 (Tex. 1946) ................ 26

Matsushita Elec. Indus. v. Epstein, 516 U.S. 367 (1996) ........................ 11

Maxson v. Travis Cty. Rent Acc't, 21 S.W.3d 311 (Tex.App.-Austin 1999) ......... 25

McGowan v. Huang, 120 S.W.3d 452, 463 (Tex. App.  Texarkana 2003) ............. 7

Montana v. United States, 440 U.S. 147 (1979) ...................................25

Neill v. Owen, 3 Tex. 145 (Tex. 1848) .......................................... 24 

Parker v. Carnahan, 772 S.W.2d 151 (Tex.App.-Texarkana 1989) ................... 24

Phil Crowley Steel Corp. v. Sharon Steel Corp., 702 F.2d 719 (8th Cir. 1983) ... 23

Procter & Gamble Co. v. Amway Corp., 242 F.3d 539 (5th Cir. 2001) .............. 11

Richards v. Jefferson Cty., Ala., 517 U.S. 793 (1996) .......................... 30

Sysco Food Servs. v. Trapnell, 890 S.W.2d 796 (Tex. 1994) ...................... 29

Thomas v. Pryor, 847 S.W.2d 303 (Tex.App.-Dallas 1992), vacated 
   pursuant to settlement, 863 S.W.2d 462 (Tex. 1993) .......................... 24

United Paperworkers Int'l Union AFL-CIO v. Champion Int'l Corp., 908 F.2d 
   1252 (5th Cir.1990) ......................................................... 28
United States v. Pompa, 434 F.3d 800 (5th Cir. 2005) ........................... 28

United States  v. Miss. Dep't of Pub. Safety, 321 F.3d 495 (5th Cir. 2003) . 16, 17

Vaught v. Showa Denko, 107 F.3d 1137 (5th Cir. 1997) ........................... 30

Vines v. Univ. of La. at Monroe, 398 F.3d 700 (5th Cir. 2005), cert. denied, 
   126 S.Ct. 1019 (2006) ............................................. i, 8, 18, 19

STATUTES and RULES
28 U.S.C. 1292(b) .............................................................. 7

28 U.S.C.  1367 ................................................................ 5

28 U.S.C. 1738 ................................................................ 11

29 U.S.C.  621 et seq. ......................................................... 9

42 U.S.C.  1981 ............................................................... 17

Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq. ............ 4
     42 U.S.C.  2000e-5(a) .................................................... 26
     42 U.S.C.  2000e-5(f)(1) ..................................................26
     42 U.S.C.  2000e-5(g)(1) ................................................. 19

Tex.Civ.Prac. & Rem. Code Ann. 37.006(a) (Vernon 1997) ........................ 11

Fed. R. Civ. P. 8(c) ........................................................... 21

Fed. R. App. P. 28(a)(9)(A) .................................................... 28

Tex.R.App.P.114(a) ............................................................. 30

MISCELLANEOUS
Donald R. Livingston, EEOC Litigation & Charge Resolution 
   (BNA Books 2005) ......................................................... 22, 23 

EEOC Regional Attorney's Manual ............................................. 15, 16

                      STATEMENT OF THE ISSUE
     Whether there is privity under Texas law between the EEOC and the four
charging parties for whom it seeks relief where their interests are not identical.
                      STATEMENT OF THE CASE
     In this Title VII enforcement action, the Equal Employment Opportunity
Commission (EEOC) claims that Jefferson Dental Clinics (JDC) failed to remedy
sexual harassment by a supervisor against four of his subordinates, and that JDC
retaliated against the four by firing or constructively discharging them.  R.12.  JDC
moved for summary judgment, seeking to dismiss the EEOC's action on res judicata
grounds.  R.228.  The district court denied JDC's motion, R.678, but subsequently
certified the question for interlocutory review by this Court.  R.756.  This Court
granted the petition for interlocutory review.

                       STATEMENT OF FACTS
     Defendant Jefferson Dental Clinics operates a chain of dental clinics in the
Dallas area, and maintains a corporate office to oversee administrative functions. 
R.738.  On June 2, 2003, four individuals  all women who had worked in JDC's
corporate office  filed charges with the EEOC.  R.520-26.  Each of the women
alleged that she was subjected to sexual harassment by Kadri Cumur, the chief
financial officer for JDC, and the direct supervisor of all four women.  Id.  According
to Heather Sooter, one of the charging parties, Cumur constantly made inappropriate
comments about her appearance and about her personal life, including asking with
whom she had sex.  R.302.<1>  Cumur also touched her inappropriately.  On one
occasion he reached inside her blouse, touched her bra, and told her she should wear
a bra that pressed down on her "top part;" on another occasion he grabbed Sooter,
held her tightly, and kissed her.  R.302-03.  In March 2003, after Sooter refused to go
out to dinner with Cumur, he called her a "whore."  R.303.
     Cumur likewise subjected charging party Esmeralda Jimenez to suggestive
comments and touching.  Cumur asked Jimenez whether she and her husband
"coordinate well" during sex, and whether she "like[s] it big."  R.301.  Cumur played
with Jimenez's blouse, unbuttoning it, and on another he caressed her neck inside her
shirt collar and rubbed her shoulders.  Id.  There were several times that he
approached Jimenez while she was sitting, stood in front of her, and rocked back and
forth, with his groin in her face.  Id.  Cumur also asked a third female employee 
charging party Carol Cantu  intimate questions about her personal life, and
repeatedly asked her out to dinner, despite her many refusals.  R.299-300.  He
commented about Cantu's lips, her lipstick, her hair, and her smell.  R.300.  Cumur
touched Cantu inapproriately  he kissed her while she was sitting at her desk, he put
his arm around Cantu and pulled her close, he brushed against her breasts on several
occasions, and touched the back of her neck with his hands.  R.299-300.  The fourth
charging party, Linda Housholder, witnessed much of Cumur's conduct towards the
other three.  R.300, 304.
     The four women repeatedly complained to Cumur about his conduct, to no
avail.  R.299, 301, 304.  On March 13, 2003, the women complained to David
Alameel, JDC's president and owner.  R.304.  After listening to the complaints,
Alameel acknowledged that his wife and son previously had expressed concerns to
him about Cumur's behavior.  R.304.  Alameel initially fired Cumur, but almost
immediately changed his mind and rehired Cumur.   R.306.  A few days later, new
workplace rules were announced: female employees had to conform with a new dress
code that prohibited sleeveless shirts and dresses, and female employees were not
permitted to "talk out of turn."  R.307.  In fact, employees were not permitted to
speak to Cumur at all without a newly-hired Office Manager present.  R.305.  Three
days later, on April 4th, Alameel announced that JDC was his company, that Cantu,
Housholder, and Sooter were employees at will, and that they were fired.  R.308. 
Jimenez resigned after Alameel told her that JDC was an "at will" company and she
was welcome to leave if she did not like his decision to rehire Cumur.  R.523.  Each
of the four charges filed allege that Alameel's actions were taken in retaliation for the
women's complaints about Cumur.  R.520-26.
     Shortly after filing charges with the EEOC  and well before the EEOC had
concluded its investigation of the charges  the four terminated employees filed an
action in Texas state court against JDC, Cumur, and Alameel.  R.257.  The private
suit did not allege a violation of Title VII or the Texas statutory equivalent, the Texas
Commission on Human Rights Act (TCHRA), but instead alleged only Texas tort law
claims.  R.269-72.  The private suit sought no injunctive relief, but only monetary
damages.  R.274.  The EEOC played no role in the filing of this action  the EEOC
did not suggest or encourage the individuals to file the state action, nor did the EEOC
review the petition filed in state court.   R.569-71.
     The EEOC concluded its investigation in April 2004, determining that there
was reasonable cause to believe that the charging parties were subjected to a sexually
hostile work environment and were discharged in retaliation for complaining about
the discriminatory conduct.  R.546.  In August 2004, the EEOC filed suit against JDC
alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et
seq., and seeking both monetary relief and injunctive relief in the form of "policies,
practices, and programs ... [that will] eradicate the effects of [JDC's] past and present
unlawful employment practices."  R.13.  At the time the EEOC filed its suit, it was
aware that there was a state court action pending, and that the state court action
included no statutory employment discrimination claims.  Because the EEOC was not
coordinating its actions with the charging parties' attorneys, it did not know how the
state court action would proceed once the EEOC filed suit  in particular the EEOC
did not know whether the charging parties would seek to intervene in the EEOC's
federal court action and add the state claims under 28 U.S.C.  1367.  R.569-71.
     The four individuals did not seek to intervene at that time nor otherwise agree
to delay the state court litigation.  Shortly after the EEOC filed its complaint in
federal court, Cumur filed a plea in abatement in state court, arguing that the state
court litigation should be delayed due to the EEOC's lawsuit.  The state trial court
denied the plea.  At no time was the EEOC involved in the consideration of the issue. 
     The EEOC's only "involvement" in the state action came during a court-
ordered mediation.  An EEOC attorney attended the mediation "to afford the
Defendant an opportunity to resolve all of the outstanding disputes."  R.569.  As the
EEOC trial attorney explained, the EEOC was pursuing different claims and was
seeking different relief from that sought by the charging parties, and the attorney
believed the chance for settlement of the EEOC's separate claims would be enhanced
by her presence at the already-scheduled mediation.  Id.  The mediation proved
unsuccessful.
     Prior to the state court trial,  JDC successfully urged the court to dismiss the
wrongful discharge tort claim on the ground that the harassment and retaliation claims
were already covered by the TCHRA, and JDC emphasized that the EEOC was
already pursuing sexual harassment and retaliation claims.  R.667 n.2.  The state trial
 much of which the EEOC trial attorney attended as an interested observer 
involved two tort claims: intentional infliction of emotional distress and negligent
retention.  On the former claim, the jury was instructed that it had to find that Cumur
acted "intentionally or recklessly with extreme and outrageous conduct to cause the
plaintiff [severe] emotional distress."  R.54.  Extreme and outrageous conduct, the
jury was instructed, means conduct "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."  Id.  On the latter claim,
the jury was instructed that negligent retention occurs when "an employer retains an
employee knowing that the employee is incompetent or unfit, thereby creating an
unreasonable risk of harm to others...."  R.58.  The jury found for JDC on these two
claims.  R.54, 58.
     It was only after receiving their adverse state judgment that the charging parties
sought to intervene in the EEOC's action. R.35.  The district court denied the
intervention request on res judicata grounds.  R.687.
     In the EEOC's action in federal court, JDC moved for summary judgment,
arguing that the state tort action, to which the EEOC was not a party, nonetheless
should preclude the EEOC's Title VII action on res judicata grounds.  The district
court disagreed, holding that under Texas law the EEOC was not bound by the earlier
action because it was neither a party to that action nor in privity with the private
individuals who pursued the tort claims.  R.687-95.  Critical to the court's
determination was the decision of the U.S. Supreme Court in EEOC v. Waffle House,
534 U.S. 279 (2002), in which the Court held that the EEOC "does not function
simply as a vehicle for conducting litigation on behalf of private parties.'" R.690
(quoting Waffle House, 534 U.S. at 288).  Even when EEOC is pursuing entirely
victim-specific relief, it is "vindicat[ing] the public interest'" by, in the district
court's words, "identifying and confronting sexual harassment and other federally
prohibited forms of discrimination as such."  R.691 (quoting Waffle House, 534 U.S.
at 296).   The court concluded that the interests of the EEOC and charging parties
therefore are not "identical'" as required to establish privity under Texas law, and
that in no sense did the charging parties "represent the EEOC."  R.691 (quoting 
McGowan v. Huang, 120 S.W.3d 452, 463 (Tex. App.  Texarkana 2003)).
     JDC moved to amend the district court order to allow for interlocutory appeal. 
The district court granted the motion and, on November 10, 2005, amended its
opinion by adding a single paragraph containing the statement required under 28
U.S.C. 1292(b).  R.756.  This Court granted the petition for interlocutory appeal.


                       SUMMARY OF ARGUMENT
      The EEOC was not a party in the state court action involving the tort claims
of intentional infliction of emotional distress and negligent retention.   Whether the
EEOC nonetheless should be bound by the judgment in that state action, and barred
from pursuing its Title VII claims, turns on the question of privity.  Under well-
settled Texas law, privity denotes the relationship between two parties who have such
an "identity of interest" that the party to the judgment represented the "same legal
right."  EEOC is not in privity with the state court plaintiffs because the relationship
lacks the identity of interest required by Texas law.
     The U.S. Supreme Court, in EEOC v. Waffle House, 534 U.S. 279 (2002),
thoroughly analyzed the relationship between the EEOC and private individuals on
whose behalf the EEOC seeks relief.   The essence of the Waffle House decision is
that there is no privity between the EEOC and private individuals when the EEOC
chooses to pursue its "statutory prerogative" to enforce the anti-discrimination law. 
Waffle House, analyzing the language of Title VII, ruled that private individuals
simply cannot represent the EEOC's interest in eradicating workplace discrimination.
     Much of JDC's argument that the EEOC is in privity with the state court
plaintiffs hinges on cases that predate Waffle House or that arise under a wholly
different federal law.  In particular, JDC relies on this Court's decision in Vines v.
University of Louisiana at Monroe, 398 F.3d 700 (5th Cir. 2005), a case in which the
statute at issue was the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
 621 et seq.  Vines itself emphasized that the EEOC's role is different under the
ADEA than under Title VII, and that ADEA makes the EEOC the individuals'
representative, whereas  Title VII does not.  Thus Vines, which found privity in the
ADEA context, supports a finding that no privity exists in the Title VII context that
is at issue here.
     JDC suggests that this case is somehow different from the typical EEOC case
analyzed by the Waffle House Court.  In particular, JDC claims a privity finding is
warranted based on the EEOC's "unique" assertion of privileges, such as attorney-
client privileges, in the discovery process.  Nothing about this case is unique,
however.  The leading treatise on EEOC litigation, invoking numerous cases, explains
why the EEOC frequently needs to assert privileges, even though no attorney-client
relationship exists between the EEOC and charging parties.  The EEOC's invocation
of privileges is no ground to differentiate this case from the standard EEOC case
contemplated by the Waffle House Court.
     JDC places two other facts at issue: (1) an EEOC attorney participated in a
state court mediation in order to enhance the chances that the EEOC could settle its
own pending Title VII claim,  and (2) the EEOC attorney attended the state court trial. 
The district court found that these facts do not show that the EEOC controlled the
state court action.  Texas law makes control the critical inquiry; the EEOC's limited
participation plainly did not amount to control of state court proceedings.
     Finally, JDC invokes what it terms the "equities" of the case.   But Texas courts
have already determined when it is equitable to permit an exception to the general
rule that a judgment in one action does not prejudice the rights of a person not a party
to that proceeding.  That exception is encapsulated in the Texas courts' well-settled
privity standard, a standard that is not met here.  Moreover, any discussion of the
"equities" of this case must include the public's interest in seeing that sexual
harassment and, in the EEOC's view, blatant retaliation be remedied.  The EEOC has
not yet had an opportunity to vindicate that important public interest.

                        STANDARD OF REVIEW
     Under Texas law, privity is both a determination of law, connoting those so
connected as to have an identity of interest in the same legal right, and a
determination of fact, which requires "careful examination into the circumstances of
each case as it arises."  Benson v. Wanda Petroleum, 468 S.W.2d 361, 363 (Tex.
1971).  The district court, in denying JDC's motion for summary judgment on res
judicata grounds, held as a matter of law that charging parties, in pursuing their state
claims, did not have such an "identity of interest" with the EEOC that they
represented the same legal right as the EEOC.  The court also determined that the
circumstances of this case did not establish privity.  R.748-49 ("EEOC did not control
the state court action").
     In general, this Court reviews a district court decision denying summary
judgment de novo, applying the same standard as the district court.  See Coleman v.
Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997); see also Procter &
Gamble Co. v. Amway Corp., 242 F.3d 539, 546 (5th Cir. 2001) (res judicata effect
of judgment in state court litigation is question of law this Court reviews de novo). 
However, because the review of the privity issue comes to this Court on interlocutory
appeal, this Court does not delve into "disputed factual contentions," but instead
treats the facts assumed by the district court as undisputed facts in order to assess the
court's legal conclusion.  See Coleman 113 F.3d at 531, 532 n.4. 

                             ARGUMENT
The Waffle House holding that, under Title VII, EEOC acts to vindicate the
public interest means that the interests of the EEOC and the charging parties are
not "identical," as required to establish privity under Texas law.

     It is undisputed that the EEOC was not a party to the proceedings in Texas state
court.  Under Texas law, it is the general rule that a judgment in one action "does not
prejudice the rights of a person not a party to the proceeding."  Tex.Civ.Prac. & Rem.
Code Ann. 37.006(a) (Vernon 1997).<2> Under this general rule, then, the EEOC's
statutory right to bring a Title VII claim should not be prejudiced by a state court
judgment against different parties.  Of course, if the EEOC were in privity with the
private individuals, the result would be different, for the doctrine of res judicata,
incorporating the concept of privity, "creates an exception to this rule by forbidding
a second suit arising out of the same subject matter of an earlier suit by those in
privity with the parties to the original suit."  Amstadt v. U.S. Brass Corp., 919 S.W.2d
644, 652-53 (Tex. 1996).  The Texas courts have recognized three legal relationships
that create privity: people are in privity if (1) "they can control an action even if they
are not parties to it; (2) their interests can be represented by a party to the action; or
(3) they can be successors in interest, deriving their claims through a party to the prior
action."  Id. at 653.  The district court applied these standards and held  correctly 
that there was no privity between the EEOC and the private individuals.
     JDC argues the EEOC and the private individuals have "shared interests," and
that these shared interests establish privity.  That two parties share some interests
does not establish privity under Texas law, however.  According to the Texas
Supreme Court, to find privity both parties must "share an identity of interests in the
basic legal right."  Amstadt, 919 S.W.2d at 653 (citation omitted and emphasis
added).  But under Texas law, this privity exception does not swallow the general rule
that one party's actions will not prejudice another party.  "[P]rivity," the Texas
Supreme Court has stressed, "is not established by the mere fact that persons may
happen to be interested in the same question or in proving the same state of facts." 
Benson v. Wanda Petroleum, 468 S.W.2d 361, 363 (Tex. 1971). 
     JDC's "shared interests" rationale is an attempt to shoehorn this case into one
of the traditional grounds for establishing privity under Texas law, the ground that
requires that a non-party's "interests ... be represented by" the party in the first suit. 
Amstadt, 919 S.W.2d at 653.  The district court correctly held that this ground does
not apply to preclude EEOC actions under Title VII because, under the holding of the
U.S. Supreme Court in EEOC v. Waffle House, 534 U.S. 279 (2002), private
individuals cannot represent the EEOC's interest in eradicating workplace
discrimination.<3> The district court emphasized the critical determination of the
Supreme Court in Waffle House: the EEOC has "independent statutory authority to
bring enforcement actions for independent purposes" and, when it exercises that
authority, "the EEOC does not function simply as a vehicle for conducting litigation
on behalf of private parties.'"  R.750-51 (quoting Waffle House, 534 U.S. at 288,
296).
     Waffle House drew on principles first enunciated by the Supreme Court in
General Telephone v. EEOC, 446 U.S. 316, 326 (1980), in which the Court held that
"the EEOC is not merely a proxy for the victims of discrimination and ... the EEOC's
enforcement suits should not be considered representative actions subject to Rule 23." 
The Court held that it thus would be inconsistent with the statute "to bind all class'
members with discrimination grievances against an employer by the relief obtained
under an EEOC judgment or settlement," especially because of "the possible
differences between the public and private interest involved."  Id. at 333.
     Enlarging on its understanding of the differences between the public and
private interests involved in pursuing discrimination claims, in Waffle House the
Supreme Court held definitively that the EEOC could seek victim-specific relief for
an individual who himself was precluded from pursuing a discrimination claim in
court   in that case by virtue of an agreement he had signed to arbitrate his claims.<4> 
The Court rejected the distinction drawn by the court of appeals between injunctive
relief, which the court of appeals had permitted the EEOC to pursue, and victim-
specific relief, which it had barred the EEOC from pursuing.  According to the Court,
"whenever the EEOC chooses from among the many charges filed each year to bring
an enforcement action in a particular case, the agency may be seeking to vindicate a
public interest, not simply provide make-whole relief for the employee, even when
it pursues entirely victim-specific relief."  Waffle House, 534 U.S. at 296.  The  Court
explicitly rejected the argument that the EEOC simply stands in the employee's shoes
when it seeks victim-specific relief.  Id. at 291-96, 297 ("the EEOC does not stand in
the employee's shoes").<5> As the Court recognized, Title VII unambiguously
authorizes the EEOC 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."  Id. at
291-92.  This enforcement role is incompatible with a finding that the EEOC's
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.  Id. at 295-96 (holding it would
undermine the EEOC's 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); id. at 296 n.10 (individual agreement to arbitrate cannot
waive "the substantive statutory prerogative of the EEOC to enforce [discrimination]
claims for whatever relief and in whatever forum the EEOC sees fit").<6>
     JDC seeks to confine Waffle House to its narrow context, where an arbitration
agreement exists to bar an individual's court action.  Nothing in the language of the
Supreme Court's decision indicates the Court meant to limit its statutory analysis of
the EEOC's public enforcement role to one particular factual scenario.  In any event,
this Court has already rejected attempts to constrict the holding of Waffle House, and
instead applied Waffle House to a different factual context  in which the individual
was precluded from seeking monetary relief not by an arbitration agreement, but by
principles of sovereign immunity. United States v. Miss. Dep't of Pub. Safety, 321
F.3d 495 (5th Cir. 2003).  After quoting at length from Waffle House, this Court held
that the individual's inability to sue his state employer under the ADA "in no way
diminishes the United States' interest in the action or the authority of the United
States to bring suit against the [state employer] for the benefit of the public generally
and for [the individual's] benefit specifically."  Id. at 499; see also id. (quoting
Waffle House, 534 U.S. at 291-92).  Furthermore, this Court held, the individual's
inability to sue his employer does not "transform the United States into a mere proxy
for [the individual]."  Id. at 499.
     Other courts of appeals likewise have applied the Supreme Court's decision in
Waffle House and rejected the argument that the EEOC is in privity with individuals
when it seeks monetary, victim-specific relief.  The Seventh Circuit, in rejecting the
argument that the EEOC "is simply standing in the shoes of the individuals and is
acting in privity with them as their representative," observed that "[w]hatever wind
might originally have been in the sails of this argument has been knocked out" by
Waffle House.  EEOC v. Bd. of Regents of the Univ. of Wisc. Sys., 288 F.3d 296,
299-300 (7th Cir. 2002).  More recently, the Seventh Circuit reiterated that Waffle
House held that the EEOC's "enforcement authority is not derivative of the legal
rights of individuals even when it is seeking to make them whole."  EEOC v. Sidley
Austin LLP, 437 F.3d 695, 696 (7th Cir. 2006).  The court of appeals further observed
that the"doctrinal heart of Waffle House" is its ruling that "the EEOC is not in privity
with the victims for whom it seeks relief."  Id.  The Eleventh Circuit, in a
comprehensive analysis of the issue, rejected the privity argument in a case very
similar to this one  private individuals had sued under 42 U.S.C. 1981, gone to
trial, and lost.  See EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280 (11th Cir. 2004),
cert. denied, 126 S.Ct. 42 (2005).  The court held the EEOC was not in privity with
the private individuals and so not precluded by res judicata from pursuing its Title VII
claim.  Id.
     JDC cites to a number of court of appeals' cases that pre-date Waffle House,<7>
JDC Brf. at 24-27, and to one decision by this Court that, as JDC emphasizes, "came
more than three years later."  JDC Brf. at 23-24, 29.  That one decision is Vines v.
University of Louisiana at Monroe, 398 F.3d 700 (5th Cir. 2005), cert. denied, 126
S.Ct. 1019 (2006),<8> a case in which two individuals tried to litigate a private state age
discrimination claim after the conclusion of the EEOC's action under the Age
Discrimination in Employment Act (ADEA).  The difference in statutes underlying
the EEOC's action  the ADEA in Vines, Title VII here  makes JDC's reliance on
Vines wholly unavailing.
     The Vines Court took great pains to highlight the different enforcement
schemes of the ADEA and Title VII.   See Vines, 398 F.3d at 707 ("this is an ADEA
claim and not a Title VII case"); id.  (discussing "distinctive enforcement scheme" of
ADEA); see also EEOC v. U.S. Steel Corp., 921 F.2d 489, 495 (3d Cir. 1990) (ADEA
case focusing on "distinctive scheme" of ADEA).  The Vines Court went on to
delineate the differences between the two statutes.  In particular, the Vines Court
emphasized that the EEOC's decision to bring suit under Title VII does not cut off
any rights of individuals, but the EEOC's filing of an ADEA complaint "terminates
the right of an individual to pursue an action."  Vines, 398 F.3d at 707.  The Vines
Court relied on the differences between Title VII and the ADEA in reaching its result
and holding that, unlike its role under Title VII, the EEOC "takes on representative
responsibilities" when it sues under the ADEA.  Id.
     Finally, JDC attempts to minimize the significance of the Waffle House rule
to the disposition of this case by pointing to the Supreme Court's observation that an
individual's actions in failing to mitigate damages or accepting a monetary
settlement, for example, may limit the amount of monetary relief the EEOC may
obtain in court because "courts can and should preclude double recovery by an
individual.'" Waffle House, 534 U.S. at 297 (quoting General Tel., 446 U.S. at 333). 
The Supreme Court's double recovery statement is not addressed to privity or
preclusion, but to the Title VII remedies provision, which states: "Interim earnings
or amounts earnable with reasonable diligence by the person or persons discriminated
against shall operate to reduce the back pay otherwise allowable."  42 U.S.C. 
2000e-5(g)(1).<9> Indeed, the Supreme Court forcefully concluded, after its "double
recovery" discussion, that "it simply does not follow from the cases holding that the
employee's conduct may affect the EEOC's recovery that the EEOC's claim is merely
derivative."  Waffle House, 534 U.S. at 297.
     The distinct interests that the EEOC vindicates when it brings a Title VII action
place the EEOC and the four charging parties in a relationship very different from the
relationship between the parties in the Texas state court cases cited by JDC.  In those
cases, the relationship between the different parties led the courts to determine that
they shared an identity of interest in the basic legal right.  See, e.g., Grimm v. Rizk,
640 S.W.2d 711, 715-16 (Tex.App.-Hous. 1982) (identity of interest found where first
litigant was the trustee for the subsequent litigants, where first litigant and subsequent
litigants were partners in a partnership, and where first litigant was "acting at all
times in a representative capacity"); Dennis v. First State Bank of Tex., 989 S.W.2d
22 (Tex.App.-Fort Worth 1998) (res judicata barred son's claims where first litigant
was his father and co-owner of a closely-held corporation); In re Estate of Ayala, 986
S.W.2d 724, 727 (Tex.App.-Corpus Christi 1999) (res judicata barred claims where
subsequent litigants had "the same interest" as their brother, the first litigant, in
voiding their father's holographic will).  By contrast, even when the EEOC seeks
monetary relief, "the EEOC does not sue as the representative of the discriminated-
against employees who may benefit from the relief it obtains."  In re Bemis Co., 279
F.3d 419, 422 (7th Cir. 2002) (citing Waffle House).
     Perhaps recognizing, implicitly, the force of Waffle House and its progeny,
JDC repeatedly urges this Court to look to the "unique facts" of this case to find
privity.  JDC Brf. at 2, 12, 15, 16, 17, 19, 35.  There is nothing unique about the
EEOC's actions in this case, however, that places the EEOC into a role different from
that described by the Supreme Court in Waffle House.  First, JDC asserts that the
EEOC "agreed" with the charging parties' motion to intervene in this action, a motion
in which, JDC further asserts, the charging parties "essentially concede they are in
privity with the EEOC."  JDC Brf. at 22; see also JDC Brf. at 9-10 ("the EEOC
agreed with the motion to intervene").  JDC misstates the record, for the page cited
by JDC from the charging parties' motion to intervene reads: "Plaintiff [the EEOC]
does not oppose."  R.35.  Of course, because res judicata is an affirmative defense
(see Fed. R. Civ. P. 8(c)), it was for JDC  and not the EEOC  to oppose intervention
on that basis.  That the EEOC did not oppose intervention is, therefore, of no
consequence. 
     JDC emphasizes that the EEOC has asserted an attorney-client privilege and
a privacy privilege during discovery in this case.  There is nothing about the EEOC's
assertion of these privileges that makes this case so "unique" as to remove it from the
realm of the Waffle House rule that the EEOC is not merely a proxy for victims of
discrimination.  As the leading treatise on EEOC litigation explains, the EEOC
frequently asserts an attorney-client privilege, and other privileges, even though "[n]o
attorney-client relationship exists between the EEOC and charging parties."  Donald
R. Livingston, EEOC Litigation and Charge Resolution 701 (BNA Books 2005).  The
rationale for extending the privilege where no attorney-client relationship exists
includes the fact that "employers in these types of cases have available the protection
of the attorney-client privilege whereas there is no sound reason why employees
would not."  EEOC v. Int'l Profit Assocs., 206 F.R.D. 215, 219 (N.D. Ill. 2002)
(citing Bauman v. Jacobs Suchard, 136 F.R.D. 460, 462 (N.D. Ill. 1990)); see also 
EEOC v. TIC - The Indus. Co., No. 01-1776, 2002 WL 31654977, *2-5 (E.D. La.
Nov. 21, 2002); EEOC v. Johnson & Higgins, Inc., No. 93-5481, 1998 WL 778369,
at *3-4 (S.D.N.Y. Nov. 6, 1998); EEOC v. HBE Corp., No. 93-722, 1994 WL
376273, *2 (E.D. Mo. May 19, 1994); EEOC v. Georgia Pac. Corp., No. 69-101, 1975
WL 267, *2 (D.Or. Nov. 10, 1975).  Further, the EEOC has argued that it should not
be hampered in pursuing its discrimination claim by the fear that its communications
with the charging party will be subject to discovery.  See Int'l Profit Assocs., 206
F.R.D. at 219.  Thus the EEOC's assertion of privileges is more the norm in its
litigation than a "unique" fact that takes it outside of the Waffle House ruling.  
     JDC states that, under Texas law, a party may not successfully assert an
attorney-client privilege without an attorney-client relationship.  JDC Brf. at 18. 
There are several problems with JDC's argument on this point.  First, because the
EEOC does not pursue claims under Texas state law, it is unclear how that Texas rule
of evidence could ever apply to the EEOC.  Second, it is the EEOC's assertion of
privileges that JDC highlights here, not whether the privilege actually exists, and the
EEOC's assertion of  privileges here is in no way unique to this case.  It may well be
that a court will not allow the EEOC to assert an attorney-client privilege (or other
privileges) in the absence of an attorney-client relationship.  The critical point,
though, is that "[n]o attorney-client relationship exists between the EEOC and
charging parties."  Livingston, EEOC Litigation 701.  
     The final problem with JDC's argument is that even if the EEOC were in a kind
of attorney-client relationship with charging parties, that relationship would not
preclude the EEOC from pursuing its distinct interest in eradicating discrimination. 
As Waffle House makes clear, the EEOC's interest is simply not "identical" to that
of the charging parties.  Moreover, in arguing that the existence of an attorney-client
relationship establishes privity, JDC is confusing privity for res judicata purposes
with privity of contract.  Cf. Phil Crowley Steel Corp. v. Sharon Steel Corp., 702 F.2d
719, 722 (8th Cir. 1983) ("Privity' is a term with different meanings in different
contexts; for example, the concept of privity of parties' for res judicata purposes is
not the same as the concept of privity of contract.'"); Alcon Assocs. v. Odell
Assocs., No. 04-22151, 2005 WL 3579057, *3 (D.S.C. May 19, 2005) ("Contractual
privity does not necessarily equate to privity for purposes of res judicata.") (holding
parties in contractual privity not in privity for res judicata purposes).
     Under longstanding Texas law, parties must be in privity of contract in order
to sue for breach of contract or other analogous claims.  See Interstate Contracting
Corp. v. City of Dallas, 135 S.W.3d 605, 607 (Tex. 2004) ("Privity of contract [is] .
. . a necessary predicate to suit on a contract."); Neill v. Owen, 3 Tex. 145 (Tex.
1848) (discussing privity of contract)  The attorney-client relationship is, in essence,
a contractual relationship, thus permitting a client to sue an attorney for breach of the
attorney's contractual duty.  See, e.g., Thomas v. Pryor, 847 S.W.2d 303, 305 (Tex.
App. 1992) (privity of contract required to bring attorney malpractice suit), vacated
pursuant to settlement, 863 S.W.2d 462 (Tex. 1993) ; Parker v. Carnahan, 772 S.W.2d
151, 156 (Tex.App.-Texarkana 1989) (same).  The cases JDC cites on the attorney-
client relationship are referring to this privity of contract.  JDC Brf. at 18 (citing, e.g.,
Thomas).  
     Privity for res judicata purposes, by contrast, refers to a relationship in which
the parties are so connected that they "share an identity of interests in the basic legal
right that is the subject of litigation."  Amstadt, 919 S.W.2d at 653.  As discussed
above, privity for res judicata purposes simply does not exist between the EEOC and
charging parties. 
     JDC argues that the EEOC's "participation" in the state court litigation is
another unique fact that justifies a finding of privity.  Although parties may be in
privity under Texas law if one controls the other's litigation, Amstadt, 919 S.W.2d
at 653, the district court properly held that the EEOC did not control the private
individuals' state court action.  Because the EEOC has no authority to bring or pursue
tort actions it is particularly inappropriate to suggest that it exercised any "control"
over the private individuals' tort claims.  As one Texas court put it, "privity exists
through control over a prior action ... [where] an individual actively and openly
participated in the prior proceedings to such an extent that it was clear that the
individual had the right to direct them."  Maxson v. Travis Cty. Rent Acc't, 21
S.W.3d 311, 316  (Tex.App.-Austin 1999); cf. Montana v. United States, 440 U.S.
147, 155 (1979) (though United States was not party to first litigation, it was
precluded from bringing subsequent suit where it required first lawsuit to be filed,
reviewed and approved complaint, paid attorneys' fees and costs, and directed appeal
from the trial court).  
     JDC points to the EEOC's attendance at the state court mediation and at the
state trial, but neither of these facts is evidence that the EEOC controlled the state
court action.  The EEOC attorney decided to attend the state court mediation "to
afford the Defendant an opportunity to resolve all of the outstanding disputes," and
to give the EEOC an opportunity to resolve its claims against JDC, which were
different from those brought by the private individuals and for which the EEOC was
seeking broader relief.  R.569.  The EEOC did not involve itself at all with the
charging parties' state tort claims against JDC.  R.569-71.  The EEOC trial attorney
also attended portions of the state court trial, but her attendance was as an interested
observer only.  R.570.  She did not advise the charging parties' attorneys or otherwise
participate in the trial.  Id.  This limited involvement in the state court proceedings
does not amount to "control," as the district court correctly held.  R.748-49; see also
Pemco Aeroplex, 383 F.3d at 1287-88 (fact that EEOC attorney participated in
mediation of charging parties' claim, attended the charging parties' trial, and
conferred with charging parties' counsel did not mean EEOC was in privity with
charging parties).
     The remaining traditional ground for establishing privity under Texas law is
not at issue here because the EEOC is not a successor in interest to the private
individuals, for it did not acquire any property or other interest from them.  Amstadt,
919 S.W.2d at 653 (privity exists when non-parties are "successors in interest,
deriving their claims through a party to the prior action"); Kirby Lumber Corp. v. S.
Lumber Co., 196 S.W.2d 387, 388 (Tex. 1946) ("Privity, in this connection, means
the mutual or successive relationship to the same rights of property'").  Further, the
EEOC's ability to bring a Title VII action does not require any transfer of interest by
charging parties to the agency but instead is independent, derived from the
enforcement provisions of Title VII itself. Waffle House, 534 U.S. at 291 ("The
statute clearly makes the EEOC the master of its own case...."); 42 U.S.C.  2000e-
5(a) & 2000e-5(f)(1).  JDC asserts, briefly, that the EEOC "derives it claims through
the charging parties," JDC Brf. at 22, but JDC does not explain how it reconciles this
assertion with the Supreme Court's definitive statement that "it simply does not
follow from the cases holding that the employee's conduct may affect the EEOC's
recovery that the EEOC's claim is merely derivative."  Waffle House, 534 U.S. at
297.  Accordingly, as the district court correctly held, the private individuals were not
in privity with the EEOC solely because their "personal circumstances" provided the
basis for the EEOC's suit.  R.752.
     JDC suggests an additional ground for establishing privity, one based on the
"unique . . . equities of this case."  JDC Brf. at 15.  There is nothing about this case
that warrants expanding Texas law on privity, however.  To the contrary, the
"equities" in this case compel the conclusion that the EEOC's Title VII claim should
go forward.  The EEOC has not had an opportunity to vindicate the public interest in
preventing unlawful sexual harassment and retaliation in the workplace.  The EEOC
has, as yet, had no bite at the apple.  If, as the Supreme Court has said, the EEOC is
the "master of its own case," Waffle House, 534 U.S. at 291, it should have the
opportunity to pursue its case.
     Furthermore, this case does not involve the same factual allegations that were
made in the state court trial.  The two tort claims that were presented to the jury both
involved Cumur and his treatment of the female employees.  Not at issue in the state
trial were Alameel's decision to fire the employees, a decision the Commission
alleges was blatantly retaliatory.   In fact, JDC successfully invoked the pendency of
the EEOC's Title VII action as a reason the state court should dismiss the state
plaintiffs' wrongful discharge claim.  R.667 n.2.  The EEOC therefore should not be
barred from pursuing its Title VII claim.    
     After correctly concluding that this case satisfies none of the three traditional
grounds for establishing privity, the district court granted JDC's motion to certify this
case for interlocutory appeal because it believed the Texas Supreme Court had
suggested there is an additional privity category.  This additional category, which the
district court derived from language in Amstadt, would place a party in a second
action in privity with a party in the first action whenever the second action involved
the "same subject matter" as the first.  See R.753 n.7 (citing Amstadt, 919 S.W.2d at
653).  JDC does not urge this Court to recognize this novel category of privity in its
brief on appeal.  JDC therefore has waived this argument as a ground for reversal of
the district court judgment.  See United States v. Pompa, 434 F.3d 800, 806 n.4 (5th
Cir. 2005) ("Any issue not raised in an appellant's opening brief is deemed waived.")
(citing Fed. R. App. P. 28(a)(9)(A); United Paperworkers Int'l Union AFL-CIO v.
Champion Int'l Corp., 908 F.2d 1252, 1255 (5th Cir.1990)).
     In any event, the district court misread Amstadt, confusing the criteria for
applying res judicata with the criteria for establishing privity.  As Amstadt explains,
privity (or identity of parties) is one of three elements necessary to apply  res judicata.
Amstadt, 919 S.W.2d at 652 (res judicata requires (1) prior final judgment on the
merits; (2) identity of parties or privity; and (3) a second action based on same claims
or claims that "arise out of the same subject matter and ... could have been litigated
in the prior action"); see also id. at 653 (res judicata applied both because second
plaintiffs were in privity as successors in interest to first plaintiffs "and because they
brought virtually identical claims concerning the same subject matter") (emphasis
added).
     Nothing in Amstadt suggests the Texas Supreme Court intended to broaden 
privity to encompass parties who lacked the requisite "identity of interests in the basic
legal right."  Amstadt, 919 S.W.2d at 653.  Moreover, to read Amstadt as shattering
the well-settled meaning of privity in this context would run afoul not only of Waffle
House, but also of principles of due process, long established as applying to privity
under Texas law.  As the Texas Supreme Court has emphasized, "[d]ue process
requires that the rule of collateral estoppel operate only against persons who have had
their day in court either as a party in the prior suit or as a privy, and, where not so,
that, at the least, the presently asserted interest was actually and adequately
represented in the prior trial."  Benson, 468 S.W.2d at 363; see also Sysco Food
Servs. v. Trapnell, 890 S.W.2d 796, 803 (Tex. 1994) ("Some litigants  those who
never appeared in a prior action  may not be collaterally estopped without litigating
the issue.  They have never had a chance to present their evidence and arguments on
the claim.  Due process prohibits estopping them....'") (citation omitted).
     The U.S. Supreme Court likewise has held that "there are clearly constitutional
limits on the privity' exception," limits that are grounded in "the general consensus
in Anglo-American jurisprudence that one is not bound by a judgment in personam
in litigation in which he is not designated as a party.'" Richards v. Jefferson Cty.,
Ala., 517 U.S. 793, 798 (1996); see also id. at 797 n.4 (state courts "cannot, without
disregarding the requirement of due process, give a conclusive effect to a prior
judgment against one who is neither a party nor in privity with a party therein").  The
EEOC was not a party in the state action, it did not share an identity of interest with
the private individuals, and the EEOC's public interest in deterring harassment and
retaliation was not represented in the prior trial of two tort claims.
     Finally, JDC suggests in cursory fashion that this Court could decline to
resolve the privity issue and instead could certify the privity question for resolution
by the Texas Supreme Court.  JDC Brf. at 13, 35.  JDC's suggestion is unwarranted. 
Certification to the Texas Supreme Court "is appropriate only if it appears to the
certifying court that there is no controlling precedent in the decisions of the Supreme
Court of Texas.'" Vaught v. Showa Denko, 107 F.3d 1137, 1143 (5th Cir. 1997)
(quoting Tex.R.App.P.114(a)).  This Court stressed that the certification procedure
"is not a panacea for resolution of ... complex or difficult state law questions.'" 
Vaught, 107 F.3d at 1143 (citation omitted).  There is considerable controlling
precedent on the subject of privity in the decisions of the Texas Supreme Court. 
Certification to the Texas Supreme Court therefore is not appropriate.

                            CONCLUSION
     This Court should affirm the judgment of the district court.
Respectfully submitted,
JAMES L. LEE                       
Deputy General Counsel
                    
LORRAINE C. DAVIS
Acting Associate General Counsel
                              
CAROLYN L. WHEELER            
Assistant General Counsel          
                                    
________________________
JENNIFER S. GOLDSTEIN
Attorney

EQUAL EMPLOYMENT OPPORTUNITY  COMMISSION

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Robert E. Sheeder
Peggy L. Facklis                                                 
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JENNIFER S. GOLDSTEIN
Attorney

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May 3, 2006

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*********************************************************************
<<FOOTNOTES>>

<1> The EEOCs investigatory file is not part of the district court record, and 
the factual record was not yet developed in the district court because JDC filed 
its motion asserting the res judicata defense early in the proceedings.  The EEOC, 
in its response in district court, therefore cited to the state court materials 
JDC attached to its motion and it does so in this brief as well.  The factual 
allegations contained in these materials are consistent with the information 
uncovered during the EEOC investigation.

<2> Texas res judicata principles apply because under the Full Faith and Credit 
Act, 28 U.S.C. 1738, a state court judgment must be accorded the same respect 
it would receive in the courts of the rendering state.  Matsushita Elec. Indus. 
v. Epstein, 516 U.S. 367, 373 (1996). 

<3> While Texas res judicata law applies to this case, the relationship between 
the EEOC and charging parties is a creature of a federal statute  Title VII.  
The interpretation of the EEOCs role under that statute by the U.S. Supreme 
Court thus is critical to this case.  Cf. Grimm v. Rizk, 640 S.W.2d 711, 716 
(Tex.App.-Hous. 1982) (examining relationship of partners under Texas Partnership 
Act to determine whether privity exists).

<4> Waffle House arose under the Americans with Disabilities Act (ADA), which 
uses the same enforcement powers, remedies, and procedures as Title VII, and so 
Title VII provisions on the EEOCs authority provide the basis for the Courts 
analysis.  See Waffle House, 534 U.S. at 285-86.

<5> In light of the Supreme Courts holding in Waffle House, which forcefully 
rejected the distinction many courts had drawn between the EEOCs pursuit of 
injunctive relief versus monetary relief, JDCs fallback suggestion in its 
formulation of Issue No. 2 (JDC Brf. at 2), that this Court could permit the 
EEOC to pursue injunctive relief   while barring it from pursuing monetary 
relief  has no legal merit.

<6> Precisely because of the potential divergence of public and private interests 
in Title VII litigation, it is the EEOCs policy to notify charging parties, by 
letter, of their right to intervene under Title VII whenever the Commission files 
a lawsuit.  This letter informs the individual that the EEOC will seek individual 
relief for that person, but that the EEOCs primary purpose in filing suit is to 
further the public interest in preventing employment discrimination.  Regional 
Attorneys Manual, Part 2,  II(E). App.  This portion of the Manual is available 
at: http://www.eeoc.gov/litigation/manual/2-2-e_notice_to_cps.html. The letter 
points out that, as the litigation progresses, the individual may find he or she 
disagrees with the relief the EEOC is seeking or with some other aspect of the 
litigation.  The letter explains: Because EEOCs first obligation is to the 
public interest, the agency may decide to act in a manner that you believe is 
against your individual interests.  Id.  Such a manner may include settling the 
case for less money than the individual believes is warranted, or deciding that
continued prosecution of the case is not in the public interest.  Id. at Part 
3,  IV(A)(2)(f).  This portion of the manual is available at: 
http://www.eeoc.gov/litigation/manual/3-4-a_settlement_standards. html#section2f.  
The letter points out that Title VII permits an individual to intervene in order 
to pursue your individual interests.  Id. at Part 2,  II(E) App.

<7> One of those cited decisions, Jones v. Bell Helicopter, 614 F.2d 1389 
(5th Cir. 1980), pre-dates even General Telephone.  This Court has recognized that 
Jones is no longer good law in light of its inconsistency with subsequent Supreme 
Court precedent.  See Vines, 398 F.3d at 707 (Jones preceded the Supreme Courts 
decision in [General Telephone] which discussed how the interests of the EEOC and 
of the individual may be divergent).

<8> JDC states, erroneously, that the EEOC filed an amicus brief with the Supreme 
Court urging the Court to grant certiorari in Vines.   JDC Brf. at 30.  In fact, 
the EEOC urged the Court to deny the petition for a writ of certiorari.  See  
Brief of United States, 2005 WL 3438364, *19.

<9> There is no danger of double recovery here because the individuals have 
not yet recovered anything.