and in the district court the court agreed with the commission that we had satisfied all the necessary prerequisite to the suit and the court also agreed with the commission's argument that we had a proper cause of action for this claim or section seven  eyes so that's why why is this case not moot now well to go specifically the point of why there's still a lot of action here i'll come back to this court standard for assessing that is but specifically the key facts here are the fact that there are there re and changing the repression agreement twenty fifteen first and foremost there are still individuals we presume are present who are affected by this agreement from twenty thirteen to twenty fifteen who were presumably again precluded from being able to file a charge discrimination with equal employment opportunity commission if they understood this agreement by as we've as we've argued the agreement would have precluded charge filing and therefore these folks haven't had a chance to present their claims of the deal with it then our problem again your honor is based on our standing in the room and i think that the facts support at least a reasonable fact finder concluding that disagreement did constitute an interference with charge filing reisa did inform individuals that they were unable to file charges if someone is following that agreement they won't appear by definition because they believe that they can't file a charge so there is no one to there is no one to appear there's no basis for them if they've understood the agreement as we believe it honor we would think that if this case was to go back to the district court and we had a ruling in our favor on the pattern of practice the commission would then be able to get information on applicants as well as employees and as we do in larger cases typically and find try to find some way to contact them and inform them that they would have a right to file a charge if they believe that they should have been able to one of the twenty thirteen twenty fifteen period but were put through to because of his agreement anyway in other words you don't need a decision from the eleventh circuit you just send some information on ploys in the companies admitted they could file charges employees did file charges is right if your if your concern is information problem who needs a lawsuit just give them the information it's not only information from your arm but but specifically to your as unless they already has agreed to waive the defense of timeliness to such charges those folks right to look because even if they do come forward now they're out of time so our request is part of our job to part of the relief we've sought from door in this case is to have a waiver of the time for it so these folks would actually have a meaningful opportunity to present their claim otherwise is that what we can wait for them to show up and then there's an easy defense and that case  resolution of that is its interpretations of the term resolved and the way it looked at determined in the agreement to four to simply refer only to ultimate adjudicatory type resolutions of claims as we've argued our brief of the supreme court and this court have long recognized that the primary function of the e e o c under congress's intent behind title seven administrative process is to resolve charges of discrimination would would we be the first court in the interfered with or reached individuals exercise of their time seven rights that's not the only specific prohibitions in title seven are against the unlawful employment practices of discrimination and retaliation that's cruel how do you get from there to other rights that title seven guarantees all the courts have recognized that there is a right to file a charge under title seven and if i the fifth circuit suspicion isn't that just a procedural mechanism the filing of a charge well it is but it's nevertheless a right and most importantly your honor it's a critical right to the proper function of title seven because the statute cannot function properly as congress intended with the u s c receiving charges of discrimination processing those administratively attempting to resolve them informally without there being a charges f and agency is similar to a due process no one would think an agreement between an individual in the company would be waiving the right of an agency to bring a charge so you agree that it it obviously isn't waiving the right of the o c to bring something if and when a charges which shall be submitted and it's from exclusively by binding arbitration acquires determination exclusively and submission exclusively and we have witness testimony that not only was this what was understood into the agreement but this is what dor told individuals if i could read from mr puerto rico's statement he said quote we were told that all claims had to be filed through dorothy and that is the only option we were also told we were not allowed to file any claims outside of agreement we're all required to sign and thirteen i did not complain elsewhere including at the u s c because i was told that all claims had to be filed through and with doherty your honor but what if the what if the best reading of this is it doesn't apply to charges i mean we have an interpretation of the contract and we say just doesn't apply to charges that that takes care of that problem respectfully your honor i'm not sure i'm not sure if i understand the point you're making  district court interpreted it yes we say it's not mode we give this interpretation what's the problem problem is that this isn't the way that we believe that they for a reason fact try to conclude this agreement reads and this isn't the this isn't the intent that we believe case where doesn't matter what the best reading of it is it matters what's possible reading of it well i think that's correct on summary judgment your honor because that is what we're talking about a summary judgment and if the if it is ambiguous as to which way this argument which way this out it doesn't apply to a charge that's a win in a sense if it so in other words are trying to zero no no no no i'm just making the point i am what's funny about this case is from my perspective the best reading of it is not to apply to charges or that's the best reading you get and that's what the district court said you get that reading and that's good for you well you haven't been waving rights that they sorry asking them to waive and that's why i say why can't you take yes for an answer if that it was in fact the correct reading and if that was in fact the best reading of that in fact this wasn't having the effect that we're concerned there was having that would be a win for everyone our concern is that that's not the best not the only reading and a reasonable reading is susceptible to interpretation we're providing and again it's not just our reading of it we've actually provided a witness a general matter from a restaurant authorities from twenty thirty and who said this is exactly what they were told under seven zero seven and under seven zero seven the e e o c must do more than point to as they have done in the argument one isolated incident this is not about one isolated incident it is also about a claim of resistance that has never been before been found by any court to be a claim it must be about discrimination or retaliation and you and you just  say you get a judgement in your favor in favor of dorothy and you in a few months just reinstate for our mandatory arbitration agreement we have indicated in the course of litigation that we would not do so it was four and a half years that the new arbitration agreement has been in place the intent of the organization through deposition testimony the executives have stated through depositions that their intent was always to allow individuals to file e e o c charges at every store location is the required poster which gives the information for the e c this agreement was never directed toward the e e o c we never dorothy never defended any charge by saying here's the arbitration agreement no employee can file any charge and so there's been no evidence in bring a charge would you wave toll the statue of limitations for those individuals at this point so the problem with doing that and i want to go back to when we received when dorothy received the reasonable cause finding  no pre suit procedures had been filed so dirty was surprised at that time and in order to resolving and conciliate the matter e e o c demanded that we do it publicly and so back in two thousand and fourteen when we first received this reasonable cause assertion without investigation without a charge without conciliation that would have been the time in a restaurant organization that has one hundred percent turnover where evidence now six years later may be gone in but just cut to the chase if you're not willing to told us on that show that this is a moot we don't believe so because now six years later your honour's we have provided all the information to these individuals who in fact have never been resisted from anything so if they have never been prevented from going to the e c see from the beginning and frankly could have gone to arbitration if they believe that they had suffered any sort of discrimination or retaliation they had many places to go the more the more unlikely it is anybody is out there who has a charge complain the more reasonable it is for you to say well of course we're told because they don't exist so you can have to pick one side of that of the other i suppose but at this point they're looking for an end jumped of relief to resolve discrimination that's only hypothetical so to say that we'll go back six years and tallest actually the limitations that we'd never that doherty never prevented anybody from reserving their rights i mean this arbitration agreement does not take any rights away from any individual so if the individuals had the opportunity to go to arbitration to go to the e e o c to go to any form they wish to resolve their rights and now they are saying to us hey you know we had to at that time and at this time now six years later tolan ordered it to development as we still don't think that the issue is right with regard to the agreement  itself the agreement is clear and unambiguous it does not address the e e o c or charge filing in any respect clearly the right to there can be no doubt that title seven claims are title seven it cannot issue any final resolution it cannot come to any determinations it cannot grant relief and so all conciliation but conciliation is voluntary so the process and voluntarily decide whether they want to settle a dispute when conciliation fails at that point the case goes to a court and then starts fresh the law and we're lawyers and judges issue is whether or not the layman whether or not reasonable in a way would construe this agreement as prohibiting them from buying a georgia discrimination issues with regard to that judge wilson the first is that the reasonable person standard is an inappropriate standard to use when you're looking at title seven claims title seven requires intent and there's no case that's been cited under title seven that allows a reasonable person standard especially in a pattern and practice case so under seven zero seven pattern and practice cases the e e o c must establish that dougherty had the intent to put out this arbitration agreement and to discriminate or retaliate i mean we're talking here about this term resistance that the use of this agreement to resist title seven and we're assuming that resistance is in fact an independent cause of action with regard to what im here saying i just make sure i'm clear on this you're saying that we don't look at how a reasonable person would understand this agreement the dorothy put in front of them that's not the standard i would agree with that i believe that the standard of pursuant to the case law is that and pursuant to the statute itself is that we have to look at the intent of the parties of doherty when it put out this agreement and whether it intended to violate the law and doing so in a pattern of practice case here when you look at what dorothy's intent was we can look at what the information it put out about arbitration and about its arbitration agreement it told the training it gave to managers was that arbitration was a substitute for court and at each of its locations it put out information about the e e o c if you believe you're suffering from discrimination or retaliation here is information about the e e o c that's required by title seven those posters are at the location that their employees see those posters every single day so that is what doherty intended  through the agreement was just to require that if an individual has a dispute employment dispute that that employment dispute be resolved binding resolution through arbitration then it you respond mr tucker's argument that the agreement s that all claims basically into clued in title seven claims shall be submitted to exclusively arbitration sure the ultimately submitted to arbitration certainly means that that's what the expectation is that if they're going to be resolved or submitted to any forum that that that will give them a remedy that will give them a determination that that will be an arbitrary will form will go to arbitration c cannot do that and frankly the choice is up to the employee the employee has when it enters into this agreement it has the choice to go to the e e o c or to go to arbitration if it wishes to do so that's the agreement that the employee made with the employer before an employee goes to federal court for example it must go through the administrative remedies right but it does not have to do so before it example you cannot communicate with any of our employees it has never said intended to limit an employee's communication with any with the e e o c in any way and in fact employee the the way that the currently the attorney general only has the right to bring claims against public entities so when the right was transferred to the e e o c it was transferred under seven zero seven c and what seven zero seven c e says specifically pattern and practice right it does pursuant to all of the investigation charge and other prerequisites set forth in seven o six those did not happen in this case so those procedural failings  of discrimination it was brought by the government by the attorney general and thus it allegheny ludlum falls under seven zero seven which is the case was transferred to the e but it had started with the attorney general number one number two it was an intervention case so the analysis in allegheny was looking at whether the national association national organization of women could in fact intervene in a seven zero seven pattern and practice case and whether all the attendant prerequisites were required alternately what the court was looking at was whether in a seven o seven pattern and practice case intervention was required it said no and in the language of allegheny ludlum the court specifically held that in fact the prerequisite the prerequisites in seven o s seven o seven cases alternately shell oil specifically sets forth what gives the e e o c authority to sue shell oil says that a charge must be filed before any authority is given to the e e o c it cannot act it has no plenary authority what do you think the word resistance means in a seven zero seven with what's going on there what's the point of that word so pattern and practice cases are those where you have either a group of entities who are you who are resisting their rights under title seven discrimination and retaliation or you have one entity who  is discriminating against a broad group of people resisting title seven as a whole so that's what if i read and the analysis i've seen on the case  why did they use that word and because it is just transferring the authority to the e e o c and basically stating that the e e o c once it gets that authority alternately here is what happened so i want to back up for a minute so before the transfer of authority the attorney general did not have to file charges it had no investigative authority the way the e e o c does it could just go into court and file suit e r c could not go in and file suit right it had no authority in that way so when the transfer of authority happened what congress did is it gave the e e o c the authority to in fact investigate pattern and practice charges it had to do that it had no authority to do that in any of the other provisions of the law and so he transfers that authority to them and it says look you are going to have the right now to investigate pattern and practice charges when you get that authority you have to do it pursu to seven o six you have the you must charge investigate give notice conciliate and once you do all those things pursuant to shallow aisle you then have the right to file suit and it's clear and explicit and where the commission finds that in fact so let's take this case in this case mr there was a charge pending the e e o c learns of the arbitration agreement through the investigator the investigator sends it to the e legal office if they determine that in fact that has a violation of title seven the commission on its own could have and should have in this case filed a charge that could have been investigated as that investigation is happening they come to  have and said hey we believe this is a violation of the law let's conciliated or give you notice what's the investigation going to look like and then we could have conciliated what i'm getting at is  if congress is making it illegal for a company to require its employees this on an agreement waiving all of their title seven misinterpreting rights necessarily it's directed to the pattern and practice of discrimination and the pattern in practice of resisting any right under the statute which is discrimination or retaliation you can have a contract that potentially waves rights if you give consideration for that contract you can give a contract that's an arbitration agreement or at least you can waive rights the congress is saying you can waive all rights that you have as an employee with your employer as long as you don't waive your right to be protected from discrimination in the workplace if i'm understanding actual science question i thought what he's trying to get at is what happens if you win the words you're right here what happens next because i think everyone agrees that you can't have waivers of the right to talk to the agency or your hand these days the company and the individual can't waive the e e o c is right to investigates what i understood it to be asking is if you win what happens next and i thought the answer would be yes people can still go to to the see still can say what is happening at the company is wrong or they really are trying to get us to waive our rights to file charges they would investigate if it don't is never prevented anybody from going to the sea and never intends to prevent anybody from going to the even if they can still go of course they can still as long as they find retaliation of titles of discrimination the o c could bring claims charges whenever has i mean there has not been a situation and we don't believe there would be a situation where anyone has been prevented from going to the e e o c or communicating with the see if that's the route the employee chose to take  and if you read the remainder of that decision i will leave that decision specifically says that seven o seven remember that was so early on seven zero seven a and the attorney general's right did not have to bring a charge so were alleghany led them specifically set out in a seven to seven a you don't have to bring a charge well the attorney general didn't have to charge as you move to see an easy in fact those procedural requirements are explicit there in the statu and if if we believe the alleghany love them stands for the proposition that a charge needed to be filed i believe that that was cleared up by the supreme court and shallow oil thank you very much for your time today or honors very quickly to the point about allegations of them in general telephone specifically general telephone the supreme court so for years after allegheny all of them reaffirmed exactly what alleghany of them said which is that the e e o c inherited exactly the same authority that the attorney general had prior to an action to need to act amendments tell seven exactly the same authority supreme court said that part of that is that he must follow the conciliation procedures and seven  or seven a seven c says that if i may or our commission shall carry out functions in accordance with subjects and d and he of this section referring to passing over thirty from the attorney general subsection eat says the commission sh authority to investigate and act on a charge of a pattern or practice of discrimination also actions all such actions shall be conducted in accordance with the procedures set forth in section seven zero six that's a reference specifically to situations where it charges been filed and the yossi may pursue a pattern of practice and process that charge as it would under seven to six it does not say that you have to do conciliation it does not abrogate the requirement or seven o seven a that there not be termination if you investigate it must endeavor to resolve through conference conciliation or persuasion it is not a free standing requirement that can be inserted into the statute wherever it seen fit the supreme court is recognized in nasser recently and in other contexts the title seven is an extremely complicated and intentionally devised statutory scheme and that interpretations should be given to the plain meanings of the terms to talk a little bit more about key is that when they court did discuss briefly conciliation or seven o seven it discussed again something in context of seven seventy when a charge had been filed and alleghany of other was clear that it was basing it interpretation of the question at issue regarding intervention on its interpretation of section seven zero seven section seven zero six and the legislative history between behind each of them and the distinctions between each of them it wasn't simply a passing comment in one be followed it said specifically iran or again what it i don't have the case with me right here but what he did say again was when i was just discussing that when you're talking about it was responding to an argument by the  that the o c had failed to conciliate the charges at issue in that case and the court's context then is whether or not under section seven zero seven there was a consolation requirement it wasn't dealing with that question in the context of w charge was filed it was not making the broader statement that seven to seven eight required a charge translation i had a number of other points i'd love to respond to but if i could reach back to you i guess again your hon when you were asked to pryor about whether or not the language of submitted arbitration whether or not it required all claims to be submitted up trisha in the agreement you didn't get an answer dory i think it's because the text of the language is clear  require all claims under title seven to be submitted exclusively to arbitration that's the crux of the problem with the agreement and as i read to you from the witness testimony there's also evidence that this is exactly how this was communicated to individuals in the field