largely ignores discourse decision in the ellison case and the supreme court's decision in the wal mart case and it in dorset is an analytical framework that the e e o c candidly admitted to the district court is virtually certain to force any defendant in a lawsuit of this nature to settle the case before they ever learn of the identity of the individuals for whom the e e o c is seeking highly clear that the government had the power to bring a suit which is practically a we don't use them use the word pattern or practice but it can be nothing else because the question there and a large question  and so forth but it plainly contemplated and analysis that will not be focusing on that the individual single plaintiff defend that process practice process is no more than one a different way of proving individual discrimination that's so i got come down to that it seems to me you have to come up with something that so the congress context in which telephone general telephone was decided and what is the context in which this court's being asked to determine whether teamsters can be used by the e e o c under section seven zero six to recover compensatory and punitive damages at the government we see absolutely are in there and there is no question about that but in general telephone at the time looking at the context at the time the supreme court did not the spring addressed the very question that your honor raises and that is does rule twenty three apply any answered that question in the negative the supreme court in general telephone did not address the issue of whether or not teamsters applied in that case in fact if  you look carefully at the general telephone decision the word teamsters is not used in the decision at all you also have to look at it in the context of what the statute said at the time at that point in time there was no difference between the remedies that were available to either private point house or the e e o c under section seven zero six or seven zero seven and so at that point it really didn't there was no incentive on on litigants to be precise as to which and or on the e c to be precise as to which section they were traveling under because it really didn't matter there were no jury trials there was only otherwise we are in the teamsters process that the two step process stage one obviously addresses only the issue of the pattern of practice did you get to stage two where we're talking about the calculation of back pay and how do we calculate back pa back pay under under teamsters is calculated has to be end after wal mart has to be calculated based upon individual hearings in fact even to even if we apply the teamsters process in a seven to six case we ultimately always going to have to have a stage two perceiving that addresses individualized liability because stage one only a only establishes the practice liability stage two with respect individuals we have to have then an individualized determination with respect to every individual i don't disagree with that question though as it identity of the individual claimants until stage two so stage two is where pinotage damages have to be determined under under everybody's of application what if you found one of the founding and stage one was  not been in a clear way amended to change that ground of authority i rule agree rule twenty three is out of the question with respect to this the e e o c your honor certainly the seventh amendment is not  one individual to the other individual the second individual being in the middle of a stop at that point that's a very very good point and i think it's an important one but if the burden would be damage matters themselves if it's rooted in due process i believe that it would apply in many cases to the underlying back to back pay issues and in fact i think that's exactly what wal mart said when it said that you have a right the defendant has a right to present their their damages their defenses to damages with respect to every individual and that takes us to an another problem in this case if we step set aside the textual argument for a moment and whether or not you can even do this and you go to the manageability of these kind of cases and you look at the fact that in this case the e e o c has estimated that there may be as many as fifty thousand claimants that have a claim for some sort of damages in the case and you marry that up with wal mart's ruling that you have to have an individualized determination and it is an individualized determination with respect to both liability and damages in stage two and you you look at the district court being faced with how to manage a case that involves the thousand essentially many trials and we submit in this case those many trials have to be tried by the same jury that tried to stage one pattern or practice case because of the overlap in issues between the two  they've admitted during the course and that was a three and a half year investigation during the course of conciliation they did not identify any individual mock mining clearly says that with respect to conciliation mock mining doesn't address investigation but with conciliation you still have to look at the issue of whether or not any conciliation at all occur it is i think it is under speeded that with respect to the administrative correct was it's the courts have the authority and in fact the obligation to look at whether or not those obligations and those prerequisites were satisfied here we believe that the court should look at whether or not the there's any evidence that the e and c conducted any seven zero six investigation we don't dispute that they investigated we do dispute that the sufficiency of a bit of a seven zero seven but not a seven zero six they didn't investigate that at all and mock mining doesn't prohibit the court from looking at that provide the defendant with any individual the names of any individual claimants or the names of or information that would allow us to identify those individuals and yet they were honor there was there was a dispute at one point one of the e e o c lawyers represented during the hearing that they did not a dentist that the reason they weren't providing the information is that they didn't have the names of any of the grieved individuals because they didn't investigate them that's the basis for investigation failure investigate defense but that they did not have those names later another e e o c lawyer made a representation that they did have some names judge ellison looked at that that was competing and made of it and made a determination that he believed that there had been no individuals identified during the investigation or in the conciliation process no thank you c if i could very quickly and briefly come back to the issue we were just discussing regarding the notion of whether or not the commission identified any individuals doing investigations just to answer specifically what records evidence there is records identified approximately one hundred specific individuals who are alleged victims of discrimination following that you know i have a letter january fourteenth two thousand and eleven authored by steve counsel recognizing that the commission had cited quote one affected by this pattern of practice now the commission did not individually investigate the allegations as to each and every possible claimant because number one that creates an incredible burden on the agency as recognized by this court in sun well and number two every every denial job during the period of their practice was discriminatory but he says that inference but that was sufficient so again recognizing that there was no requirement to individually identify and investigate each individual possible think that  when congress an act of the night in ninety one amendments it did not affect section seven zero six and it did not provide any language that limited which parties more were not or were not able to take advantage of the damages provisions that were being added and most importantly your honor in the waffle house decision the supreme court right in this was a post ninety one act and its decision the supreme court specifically recognized that the ninety ninety one amendments for and acted against the backdrop of general telephone but your honor correctly characterized earlier as not being possible to be understood as anything other than a pattern or practice case in fact the supreme court while it did not say teamsters in that case what it did recognize in that decision was that in the district court the the commission of general telephone but in wall house the supreme court specifically stated that the compensatory and punitive damages that were provided by the nine hundred ninety one act were specifically available to the commission for its actions under section seven of six it specifically discussed that in the same breath as saying that this was something that was being and acted against the backdrop of sect of general talk about the two cannot be extracted but to get to the question of how to deal with p proceedings the notion of a liability is a separate question at the initial stage one at the stage one of the teamsters analysis this court recognized that allison supreme court recognized that in teachers in every case that discusses teamster's the question of liability is separate from the question of which individuals are entitled to recover damages they're two completely separate in court so if the court determines in state was a given six manageability is one aspect of it because of course for a seventh amendment concern the bottom line is to make sure that any subsequent jury does not really examine the factual issues that are determined by a prior drill prior petfinder which is why the distinction between a phase one phase two analysis other teams this is important understand because again is this court the supreme court to make clear they are completely different legal issues between a liability finding in phase one and the individual of the same jury term and my ability to comment on my simply it's a misunderstanding that the factual question regarding a liability for a pet of the practice of discrimination is a different legal question of the coal stat from whether or not the employer engaged in dog conduct knowing that it was contrary to federal law that's what caused it stands for the proposition that it is a different question altogether substantively whether or not you acted with a discriminatory motive which is the pattern or practice of the liability under section seven all three of the statute as opposed to whether you acted with the requisite malice or reckless indifference to the protected rights of the individual that is the difference between knowing that you're doing something that's discriminatory and knowing that you're doing made perfectly clear in waffle house those damages are available to the commission that and it's section seventy six actions and we can recover those damages that suggested in no way shape or form that there was something that we could not and again i believe that this there is an important distinction between this notion of what the legal questions are the replay and how the court will manage and make sure that no subsequent jury would revisit another part of the commission did state at one point earlier in the litigation that there would be a concern over overlap with kennedy damages if multiple juries in stage two were each addressing the question of liability for punitive damages of course you can have four different juries answering the same question about a singular pattern of practice you're going to but that's different from having a liability termination stage one and a determination as to remedial availability in stage two we even if you have a liability terminations stage to making sure that that is confined to  individual jury and again revisited if i could speak to one other particular issue of the art and science of this case you're on again the council's represented that there could be up to fifty thousand victims of discrimination fifty thousand victims in this case and and stayed there was in the unfairness present because there were only four thousand identified job openings but fifty thousand victims therefore forty six thousand individuals who could not have been discriminated against that's a fundamental misunderstanding of how discrimination works if i am an employer and i have one job opening and i get five black job africans who are qualified and  reject each of those applicants because of their race i discriminated five times and i have five potential victims of discrimination there may be solved kalki interesting calculations determinations that need to be made to see who would have received the other four are you going talking about compensatory damages if i haven't been subjected to that i have it worth a measure if if there were sufficient theft to support if there were sufficient facts and evidence to support such a conclusion yes you got out as a matter of law the not excluded from recovering those damages if there is evidence that the circumstances under which they were rejected were sufficiently egregious to cause them a compensable also they avail of the appeal of damages would still be there for those thoughts just the same as the commission could that's that's a matter of having been subjected to the scrim of your system as a car can be seen as adequate standing meaning that there is an injury so there is an article three but but i  our time thinned out in the world in the world of litigation of damages and measurement being open ended the point my point generally a lot of was upheld using a hypothetical so explain that just because there were only four thousand job openings does one with you then you're saying yeah you're right well that's right and there's a reason i'm saying that your daughter and that is there's a notion in this case the best was advancing that there is a critical mass at some point where the discrimination becomes so broad and so large that it cannot be reached by the statute or by the judiciary and least frankly disagree with that so i'm not going to shy away from the possibility that there could be a large number of claims there could also be a smaller number of claims which still very early in discovery in this case if there are any further questions about this issue or the investigation espec had congress intended to do so very easy for them to have written the statute to allow for compensatory and punitive damages in a pattern or practice case brought by the e e o c all they would have had to have done is say in an action by a complaining party under section seven zero six and then add a comma seven zero seven and then continue as they did in writing the statute they did not do that they violation under section seven zero six using the very same analytical framework the teamsters framework that it uses to prove a violation a pattern or practice claim under section seven zero seven  you've done is merge section seven zero seven and seven zero six into a hybrid claim that essentially creates a pattern or practice claim under section seven zero six and gives the e e o c the ability to a pattern a practice case in the very same case that they could have brought under section seven zero seven they will now be able to get compensatory and punitive damages and they can do it in a case where this case is a perfect example in which there are no prerequisites that addressed specifically the issues of compensatory and punitive damages they don't identify and with respect to both ways i mean it's so easily could hostile to it it makes it difficult the civil rights act there are only dealt the only dealt with remedies that didn't address the methods of proof and there's no indication in the legislative history that they intended do so with respect to the punitive damages issue first of all coal stat says that what you have to look at in determining whether an end at punitive damages is the individual you have to look at what was the behavior of the manager or the person alleging to have discriminated against that individual and then to determine whether or not the defendant can assert the good faith defense you look at what steps have been made by the employer to comply with the statute that second step is where the problem comes in with an overlap with the the finding of a pattern of practice of discrimination because you're looking at this at similar claims and similar evidence with respect to the pattern the practice issue in stage one and i when that determination be made with the guard intentional so that in other words the person who was injured by that practice has the same damages in other words may i answer the question you please stage one process then there are due process issues with that as well because at that point you can't determine punitive damages compensatory and punitive damages can't be presumed that's that's clear in stage one you're not making an individual a liability determination with respect to any particular individual it's the pattern of practice issue that's it's at stake in stage one so you can't start it you can't issue punitive damages to an individual and stage one without first having found liability and if you're finding that's not the purpose of stage one under teamsters and if you started trying to do that which the e e o c has suggested in one case let's find that liability with respect to the stage one anecdotal witnesses then you run up against the boot process problem of a witness to an anecdotal witness over here who work in one store determining liability but the jury is hearing evidence about what happened to a person in another store across the country and in i believe it was the mooney or scarlet case the court addressed that issue and said that there are there are due process issues there as well or i have no doubt both would have a lot more save give the chance your chance is over i'll see my three seconds here on it thank you we will take a