Case 2:00-cv-02762-WMA

Document 1

Filed 09/28/2000

Page 1 of 4

FILED
2005 Nov-01 PM 03:41 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

"Q FOR THE NORTHERN DISTRICT OF ALABAft,dA ~D

SOUTHERN DIVISION

CJ S_i C U FII L;: 26

EQUAL EMPLOYMENT OPPORTUNITY]

COMMISSION,

]

]

Plaintiff,

]

]

vs.

]

]

PEMCO AEROPLEX, INC,

]

]

Defendant.

]

1

CIVIL ACTION # COMPLAINT JURY TRIAL DEMAND
C'J-OO-AR-2762"·5

NATURE OF THE ACTION This is an action brought under Title VII of the Civil Rights Act of 1964, as

amended, to correct unlawful employment practices on the basis of race, and to make

whole a class of individuals, comprised of Blacks, who were aggrieved by the unlawful

practices. The Defendant discriminated against a class of Black individuals, by

subjecting them to a hostile work environment.

JURISDICTION AND VENUE
1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 451,1331,
1337,1343 and 1345. This action is authorized and instituted pursuant to 703(a)(1),
706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and § 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A.
2. The employment practices alleged to be unlawful herein were

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committed within the jurisdiction of the United States District Court for the Northern District of Alabama, Southern Division.
PARTIES 3. The Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is an agency of the United Sates of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1). 4. At all relevant times, the Defendant, Pemco Aeroplex, Inc. (the "Employer"), has continuously been a corporation doing business in the State of Alabama, and has continuously had at least fifteen employees. 5. At all relevant times, the Defendant Employer have continuously been and is now an employer engaged in an industry affecting commerce within the meaning of § 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e{b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, charges were filed with the Commission by thirty-six individuals alleging violations of Title VII by the Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. On a continuing basis, the Defendant Employer has engaged in unlawful employment practices at its Birmingham, Alabama, facility in violation of §42 U.S.C. § 2000e-2(a){1) and 3{a), by subjecting its Black employees to a hostile work environment. .

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8. The effect of the practices complained of in paragraph seven above has been to deprive the class of Black employees of equal employment opportunities and otherwise adversely affect their status as employees because of their race.
9. The unlawful employment practices complained of above were intentional.
10. The unlawful employment practices complained of above were done with malice or reckless indifference to the federally protected rights of the class of Black employees.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant employer, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practices which discriminate on the basis of race.
B. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for all employees, and which eradicate the effects of its past and present unlawful employment practices.
c. Order the Defendant Employer to make any affirmative relief necessary to eradicate the effects of its unlawful employment practices.
D. Order Defendant Employer to make whole the class of Black employees by providing compensation for past and future pecuniary losses, in amounts to be determined at trial.
E. Order Defendant Employer to make whole the class of Black employees,

Case 2:00-cv-02762-WMA Document 1 Filed 09/28/2000 Page 4 of 4

by providing compensation for non-pecuniary losses, including emotional pain, suffering, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
C. Grant such further relief as the Court deems necessary and proper. D. Award the Commission its costs in this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised in

this complaint involving intentional violations of Title VII.

Respectfully submitted,

C. GREGORY STEWART General Counsel

GWENDOLYN YOUNG REAMS Deputy General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 ilL" Street, Northwest Washington, DC 20507

c~~ij1

MDDBYRD

l~

Regional Attorney (Acting)

~. J~ dJt

NAOMI HILTON ARCHER Senior Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1900 Third Avenue, North Birmingham, AL 35203-2397 Telephone Number: 205/731-1381

 
 Case 2:00-cv-02762-WMA Document 60 Filed 12/13/2002 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

}

COMMISSION,

}

}

Plaintiff,

}

CIVIL ACTION NO.

}

v.

}

OO-AR-2762-S

}

PEMCO AEROPLEX, INC. ,

}

}

Defendant.

}

MEMORANDUM OPINION The court has for consideration the motion of defendant, Pemco Aeroplex, Inc. ("Pemco"), for summary judgment. Pemco seeks a dismissal of the above-entitled action which was brought by the Equal Employment Opportunity Commission ("EEOC") on behalf of all of Pemco's black employees and former employees. The complaint alleges that Pemco subjected its black employees to a racially hostile work environment. The EEOC attempts to accomplish what 36 black plaintiffs in Thomas, et al. v. Pemco Aeroplex, Inc., CV-99-AR-3280-S ("Thomas"), an action recently concluded in this court, failed to accomplish. After the EEOC filed its above-entitled action, it sought to have it cqnsolidated with Thomas on the ground that the two cases involved the same issues and evidence. Although this court agreed that the issues were the same and that the evidence would be the same in both cases, it denied full consolidation because of the severe logistical problems in managing a trial of the anticipated size of the cases if tried together. Individual verdicts and judgments would have been necessary to address the unavoidably discrete claims of a large number of individuals. The court did order consolidation of the two cases for the purposes of discovery,

Case 2:00-cv-02762-WMA Document 60 Filed 12/13/2002 Page 2 of 7
and thereafter the EEOC was allowed to participate fully in the joint discovery. After discovery had been closed in both cases, the EEOC again moved for a consolidation for trial. The court again denied the motion for the same reasons that it had earlier denied it.
By the time of the Thomas trial, the number of plaintiffs had been reduced from 36 to 22. The complaints of 14 plaintiffs had been disposed of either by plaintiffs' acceptances of Rule 68 offers by Pemco or by dismissals for failure to list claims as assets in individual bankruptcy proceedings. The 22 black employees who actually went to trial claimed that they had been constantly subj ected to a racially hostile work environment from June 3, 1992, until the date of trial. They were represented by competent and dedicated counsel, who had diligently engaged in the extensive and expensive discovery in which the EEOC had also participated. After a month long trial, a nine person jury, which included three black jurors, in response to special interrogatories found that there had been no racially hostile environment at Pemco during the period under examination. Accordingly, this court entered a final judgment in favor of Pemco on July 1, 2002. Concluding that it was bound by the jury's finding that there had been no racially hostile environment at Pemco, the court denied plaintiffs' requests for equitable relief and entered a final, appealable judgment in favor of Pemco. No appeal was taken.
The only question presented by Pemco's pending Rule 56 motion is whether or not the final judgment in Thomas has preclusive effect and is dispositive of the issues in the EEOC's parallel case. The court will not engage in an academic discussion of the nice distinctions between
2

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issue preclusion and claim preclusion, or the distinctions between res judicata and collateral estoppel. Rather, the court proceeds on the broad assumption that questions of disputed fact that have been fully and fairly tried between the same parties or their privies in a case in which a final resolution has been reached by judgment, cannot, in the name of good sense and judicial economy, be tried again. In the case at bar, the applicability of this universally recognized and accepted principle boils down to whether or not the EEOC, and the Pemco employees and former employees it now undertakes to represent, are in sufficient privity with the plaintiffs in Thomas to apply this principle.
In Thomas, not only did the EEOC have the right to participate in discovery, but it availed itself of that right. The fact that it did not engage in the examination of every deponent and often deferred to counsel for the Thomas plaintiffs, is not a controlling fact. Al though the EEOC's counsel did not sit at the counsel table while Thomas was being tried, she did, with some frequency, sit in the audience as an alert and interested observer.
Very revealing is footnote 5 in the EEOC's brief filed in opposition to Pemco's motion for summary judgment. There, the EEOC says:
The individuals whose claims were resolved in the Burnes [Thomas] case (both those who received favorable judgments and those who received unfavorable judgments) were and remain technically members of the group for which the Commission seeks relief . (emphasis supplied). These words can have only one meaning, namely, that the EEOC contends that through its efforts in this case it is still possible for the 36 original Thomas plaintiffs to obtain relief against Pemco in this case,
3

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despite the indisputable fact that the 36 are foreclosed by the final judgments entered against them or in their favor. The said judgments were either unsuccessfully appealed or were not appealed.
The court finds it impossible to conceive of the existence of witnesses who realistically could add anything to a trial in the EEOC's case, and who were not called in Thomas, and few, if any, incidents or events that were not thoroughly, even agonizingly, explored in Thomas. The core factual dispute, i.e., whether or not a pervasively hostile racial environment existed at Pemco during the relevant time period, was tried to the hilt in Thomas.
The EEOC's secondary argument that National Railroad Passenger v. Morgan, ____ U.S. ____ , 122 S.Ct. 2061 (2002), has materially altered the scope of the inquiry, and distinguishes Thomas from this case, was obviated by the happy accident that the Supreme Court's decision in National Railroad came down while Thomas was being tried. National Railroad was actually raised as a guide by this court in that case. The jury in Thomas was allowed to hear evidence of events that took place long before some of the 36 plaintiffs were even employed by Pemco. Whatever environment existed when Pemco's predecessor operated the business operated by Pemco, at the same location, with many of the same employees, was and still is too remote for judicial inquiry. There has been no suggestion by the EEOC that Pemco assumed the liability for possible ancient violations of Title VII committed by the former employer of these or other black employees.
During oral argument on Pemco's motion for summary judgment, the court asked counsel for the EEOC how many of Pemco's black employees and
4

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former employees are in the class it represents in this case. Counsel answered that the number is approximately 200. This ostensibly includes the 36 plaintiffs in Thomas. The court then asked counsel how the court should go about compensating each individual Pemco employee and former employee for the effects of a hostile work environment if a hostile work environment existed. Counsel answered that the trial should proceed in two stages; the first should consist of a trial and submission to the jury of the single question of whether or not a hostile environment ever existed (the very question decided in Thomas); the second (if the jury should decide that a hostile environment existed) should consist of a series of mini-trials in which the jury would decide each employee's separate claim of damages. This court spent a month presiding over the Thomas trial in which 22 employees jointly claimed that Title VII had been violated by Pemco, but claimed separately for their alleged individual injuries proximately caused by that violation. The EEOC now wants to have the issue of Title VII liability re-adjudicated, and if successful, then to try to the same jury 200 individual discrete claims for damages. This idea overlooks several important considerations besides the overwhelming over-exploitation of judicial resources. The first is that individual compensable injury does not automatically flow from the existence of a hostile racial environment. A pervasively hostile environment must proximately cause injury to a single person in order to provide a basis for an award of damages to that person. Thus, not only is the EEOC asking that the amount of injury be tried 200 times, but the issue of the proximate causation of alleged injuries would be tried 200 times. Different employees would not only have differing
5

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degrees of hurt, if hurt at all, but there would be different time periods of exposure to the obnoxious employer conduct. For instance, some of the EEOC's large class may have retired years ago, while others may have been promoted to supervisory positions at Pemco and be very happy employees. Second, Pemco, in theory, could have had 2,000 black employees and former employees instead of the EEOC's anticipated 200. After having recently tried 22 discrete claims to a jury, it boggles the court's mind to think of trying 200 individual claims, much less 2,000. What the EEOC suggests as the procedure for providing monetary relief for an unlimited number of quasi-class members, boggles the court's mind into incomprehension.
If the EEOC's description of the class it purports to represent had expressly excluded the 36 plaintiffs in Thomas, the issue of preclusive effect would be only slightly less difficult than it is. But, when the EEOC insists that it represents all of Pemco's black employees, past and present, including the Thomas plaintiffs, the EEOC more loudly invites the application of a doctrine of preclusion.
The EEOC contends that it has a special status, and that by virtue of its statutory mandate it cannot be precluded by an adjudication in another case in which it was not a formal party. Carrying this idea to its logical or illogical conclusion, the EEOC's case could proceed even if the named plaintiffs in Thomas had included every black employee and former black employee of Pemco. If the EEOC is correct, it matters not whether all of its present clients, in their separate private actions, had already won or lost, because, according to the EEOC, it represents a larger public interest. This court cannot find any public interest in
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such an outlandish expenditure of time and effort.

If the jury in Thomas had found that an environment hostile to

blacks existed at Pemco, this court would have granted summary judgment

in favor of the EEOC on the issue of hostile environment. If this had

occurred, the court of course could not have avoided having to deal with

the question of fashioning appropriate relief for 200 individuals. Pemco

may not have agreed with the court's ruling in such a case, but the EEOC,

on the other hand, probably would have been delighted. However, the

question is academic. The court is now operating under known procedural

circumstances and not in a vacuum. A qualified jury has actually found

that no racially harassing environment existed at Pemco. The EEOC is,

or should be, bound by that finding.

There simply must be an end to litigation. After a sufficient

number of battles, even the Hatfields and the McCoys put down their guns.

Although the EEOC wants to continue the fight on behalf of black

employees and former employees, and, though the EEOC has the resources

to do so, this court believes that the controversy has been fully and

fairly tried and has been finally disposed of. The court, therefore,

will enter an order granting Pemco's motion f~r summary judgment.

DONE this

172~·· day of December, 2002.

7

 
 Case 2:00-cv-02762-WMA Document 61 Filed 12/13/2002 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
PEMCO AEROPLEX, INC.,
Defendant.

CV 00-AR-2762-S
~NTERED
\O£CI32OO'l

In accordance with the accompanying memorandum opinion, the court finds that there are no disputes of material fact and defendant Pemco Aeroplex, Inc., is entitled to judgment as a matter of law. Accordingly, defendant's motions for summary judgment is GRANTED, and the above entitled action by plaintiff, the Equal Employment Opportunity Commission is DISMISSED WITH PREJUDICE. Costs are taxed against plaintiff.
t> DONE this ~ day of December, 2002.
WILLIAM M. ACKER, JR. UNITED STATES DISTRICT JUDGE

lo\

 
 Case 2:00-cv-02762-WMA

Document 77

Filed 12/02/2005

Page 1 of 10

FILED

2005 Dec-02 PM 04:41 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

}

PEMCO AEROPLEX, INC.,

}

}

Defendant.

}

CIVIL ACTION NO. 00-AR-2762-S

MEMORANDUM OPINION AND CASE MANAGEMENT ORDER The original complaint in this hoary case was filed on September 28, 2000. In it, the Equal Employment Opportunity Commission (“the EEOC”) charged that defendant, Pemco Aeroplex, Inc. (“Pemco”), “discriminated against a class of Black individuals by subjecting them to a hostile work environment”. The complaint, which has never been amended, alleged the jurisdictional prerequisite of EEOC administrative exhaustion by 36 black employees who were individual plaintiffs in a separate case entitled Burnes, et al. v. Pemco Aeroplex, et al., CV-99-AR-3280-S (“Burnes”). After Pemco answered the complaint, the parties on March 8, 2001, filed a report of their planning meeting. Before entering a scheduling order, the court on March 19, 2001, held a status and scheduling conference, and on March 20, 2001, entered an order declining to issue a definitive scheduling order because the court had contemporaneously consolidated Burnes with this case for

Case 2:00-cv-02762-WMA Document 77 Filed 12/02/2005 Page 2 of 10
discovery purposes only. It was this court’s understanding that the EEOC would fully participate in the discovery conducted in Burnes as well as in this case, and that the anticipated joint discovery would suffice in this case. Discovery did, in fact, proceed in Burnes, as well as in this case, and the EEOC participated in discovery efforts to the extent it cared to. No order was ever entered precluding or limiting discovery in this case as distinguished from that in Burnes. Such an order would have been inconsistent with joint discovery.
On February 15, 2002, the EEOC filed a motion to consolidate this case with Burnes for trial as well as for discovery, alleging, inter alia, that the same witnesses would be called in both cases. That motion was denied. On May 31, 2002, the court learned that discovery was being undertaken in this case separate from that in Burnes. It was on that date that Pemco filed a motion to compel against the EEOC. The court referred the said motion to Magistrate Judge Armstrong on June 4, 2002. On June 26, 2002, the EEOC filed a motion for an extension of time within which to respond to Pemco’s motion to compel. Magistrate Judge Armstrong granted that motion on July 2, 2002. The basis for the EEOC’s motion for an extension was its alleged need to incorporate the formal assertion of the EEOC’s “deliberative process” privilege, which could only be claimed by the EEOC chairwoman, Ms. Domingues. On July 1, 2002, the EEOC filed a paper reciting that Ms. Domingues’s declaration
2

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was attached, but the paper does not contain any such attachment. On July 9, 2002, as a result of a status and scheduling
conference held on that date, the EEOC was ordered to furnish Pemco a list of all of the EEOC’s witnesses by July 20, 2002, and Pemco was ordered to do likewise within a week after it received the EEOC’s list. In the order of July 9, 2002, the discovery schedule was amended to allow discovery until December 27, 2002, but only by deposition. It was obvious that the court thought that there had been sufficient discovery so as to expect it to be completed by December 27, 2002.
On July 19, 2002, the EEOC filed a list of 126 witnesses plus generic references to members of the aggrieved class and to all witnesses in Burnes. On July 29, 2002, Pemco filed a list of 175 witnesses. On August 1, 2002, Pemco filed a motion to strike the EEOC’s witnesses other than those listed by name. The said motion was granted on August 16, 2002, and no request for reconsideration has been filed.
On August 21, 2002, Pemco moved for an extension of discovery until December 31, 2002. On August 26, 2002, the EEOC moved for an extension of discovery until the court ruled on Pemco’s Rule 56 assertion of “issue preclusion” as an absolute defense by virtue of the outcome in Burnes that had been favorable to Pemco. In its said motion for an extension of discovery, the EEOC suggested that a motion to compel would be forthcoming from it. Also on August
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26, 2002, the EEOC moved to quash 30 deposition notices. On August 26, 2002, Pemco responded to the EEOC’s motion for
an extension and moved for a protective order, alleging, inter alia, that its responses to the EEOC’s requests for production had been delivered to the EEOC over a year previously and that there had been no timely or valid objection to Pemco’s responses.
On September 5, 2002, the EEOC moved for an extension of the time within which to respond to a motion to quash allegedly filed by Pemco (copy of which does not appear in the court file). On the same date the EEOC filed the motion to compel anticipated in earlier filings by both parties.
After a hearing conducted on September 6, 2002, the court on September 10, 2002, granted Pemco’s motion of August 21, 2002, for an extension of discovery until December 31, 2002, and recognized that the said extension rendered moot the EEOC’s motion of August 26, 2002, for an extension. Again, it was obvious that the court expected discovery to end on December 31, 2002. The pending discovery motions were expressly deferred pending a ruling on Pemco’s pending Rule 56 motion based on “issue preclusion”.
The court then granted summary judgment in favor of Pemco, whereupon the EEOC appealed and obtained a reversal of that ruling. Understandably, discovery activity halted pending the appeal. After Pemco’s petition to the Supreme Court for writ of certiorari was denied, the case came back to this court.
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After the return of the case to this court, the court set it for pretrial conference on November 1, 2005, only to learn that both parties insist that they need more discovery and need the aid of the court in obtaining full responses to outstanding discovery requests. The court, expressing some surprise, required the parties to state in writing their positions on their discovery needs and on other unresolved pretrial issues by simultaneous submissions to chambers on November 18, 2005. The parties complied. By order entered on November 29, 2005, the parties’ submissions were made part of the record.
Based on the court’s review of the entire 5-year record, including the submissions of November 18, 2005, it is ORDERED as follows:
1. Although there is no indication in the record that the reference to Magistrate Judge Armstrong has been withdrawn, it has obviously been ignored. It is therefore DEEMED WITHDRAWN.
2. By 4:30 p.m., December 16, 2005, the EEOC shall file a copy of Ms. Domingues’s declaration and submit to the court for in camera review all material requested by Pemco and claimed by the EEOC to be privileged, after which the court will promptly rule upon Pemco’s motion to compel.
3. The EEOC’s motion to compel is DENIED1, except to the
1The EEOC’s discovery requests were overly broad, unduly burdensome, duplicative of evidence readily available from other sources, or seeking items not calculated to produce or lead to evidence relevant to the limited issue to be tried. This renders moot the unexplained year that elapsed between Pemco’s
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extent the said motion seeks the names of black employees (and their dates of employment) who worked for Pemco between January 1, 1995, and the present. This limitation is not meant as an indication that all such persons are within the class represented by the EEOC. Pemco shall furnish this information to the EEOC by 4:30 p.m., December 30, 2005. Consistent with this ruling, Pemco’s motion for protective order is PARTIALLY GRANTED AND PARTIALLY DENIED.
4. No witness shall be offered at trial who has not either been a witness at the trial of Burnes or who has been subject to being deposed by the party against whom the witness is offered. The list of witnesses filed by the EEOC on July 19, 2002, and the list of witnesses filed by Pemco on July 29, 2002, shall constitute all witnesses, unless by motion filed by 4:30 p.m., March 31, 2006, and granted for good cause, additional witnesses are allowed. Further depositions of thus far undeposed witnesses shall not exceed one hour each during the deposing party’s interrogation of the witness. All depositions shall be completed by March 31, 2006, unless additional witnesses are allowed. No further written discovery shall be allowed unless upon motion granted for good cause, or in response to Pemco’s outstanding motion to compel, that is, to the extent it may hereinafter be granted.
5. Evidence of events that occurred prior to January 1,
responses and the EEOC’s motion to compel.
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1995, shall not be admitted into evidence, even as background material. Any doubt or equivocation by a witness as to whether or not a particular event occurred before of after January 1, 1995, shall be resolved against admissibility.
6. Testimony given by any witness in the Burnes trial shall be just as admissible as if it had been in a deposition taken in this case.
7. The group of persons on whose behalf the EEOC can seek monetary damages shall not include black persons who after January 1, 1995, had a pending action against Pemco in which the plaintiff invoked Title VII and/or 42 U.S.C. § 1981, made a claim of race discrimination and whose case has been concluded, no matter what the outcome of the case or the reason assigned for that outcome (except a dismissal without prejudice). Furthermore, the class represented by the EEOC shall not include any person who was not employed by Pemco at some time after August 28, 1997 (the date that is 180 days before the first EEOC complaint was filed by a charging party on January 28, 1998).2
2The Eleventh Circuit has squarely held that stale claims of a former employee cannot be revived by reference to a continuing violation against another employee. Hipp v. Liberty National Life Ins. Co., 252 F. 3d 1208, 1221-22 (11th Cir. 2001) (holding that plaintiff who retired more than a year before another filed the representative charge “may not rely on continuing violation doctrine to revive his stale claim” and finding “no authority, however, for allowing one plaintiff to revive a stale claim simply because the allegedly discriminatory policy still exists and is being enforced against others.”)
Other courts have rejected attempts by the EEOC to resurrect time-barred claims of former employees:
Lower courts “are compelled by the text of the statute” and should
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not alter the timely filing requirements of Title VII. When taken to its logical conclusion, the EEOC’s argument would eviscerate any limitations period in Title VII cases, so long as the plaintiff alleges a continuing violation. Any employer accused of a continuing violation or pattern or practice hostile environment allegations faces exposure to unlimited claims from long-departed employees. This Court cannot nullify the statutory provisions of 42 U.S.C. § 2000e-5(e)(1) in this manner.
EEOC v. Custom Companies, Inc., 93 FEP Cases 1450 (N.D. Ill. 2004) (citations omitted) (distinguishing the cases relied upon by the EEOC for its position).
[C]ontinuing violations based on a system of discrimination do not permit challenges to presently maintained employment practices by employees who left a defendant’s employ prior to commencement of the charge filing period. Moreover, the continuing violations theory is properly applicable only to include earlier claims for individuals, not to add new parties.
EEOC v. United Ins. Co. of America, 666 F. Supp. 915, (S.D. Miss. 1986) (citations omitted; emphasis added).
It seems obvious that if the continuing violation doctrine is applied, those members of the class must have suffered an adverse employment action within the given time period or else the limitation would be meaningless.
EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539, 549-50 (W.D. Va. 2001).
That the EEOC may properly bring a claim based upon discrimination against a class of individuals where such a claim arises out of the investigation of an individual charge, does not permit the EEOC to resurrect untimely claims . . . . Such a result would improperly expand the substantive rights of the individuals which the EEOC represents and would render the [180-day] filing period effectively meaningless.
EEOC v. Harvey L. Walner & Assoc., 1995 WL 470233 *4 (N.D. Ill. 1995) (citations omitted), aff’d on other grounds 91 F. 3d 963, 969 (7th Cir. 1996) (expressing “no wonder” that the EEOC abandoned the argument on appeal).
In surveying this consistent body of law, another court found not only that the continuing violation doctrine could not revive stale claims, but that the claims of anyone whose employment ended more than 180 days prior to the representative charge are necessarily time-barred:
While the continuing violation doctrine has been applied in the class action context, courts that have considered the issue have concluded not only that all class members must have suffered an adverse employment action within the given time-period, but have held, more pertinently, that irrespective of a continuing pattern or practice of discrimination by an employer, those individuals who terminated their employment with the defendant prior to the [180-day] cutoff under title VII may not join the class challenging such discrimination.”
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8. Inasmuch as this court in Burnes overruled Pemco’s motion
filed at trial pursuant to Rule 50 for judgment as a matter of law,
Pemco should not be sanguine over any expectation it may have that
the court will grant its promised Rule 56 motion based loosely on
the rationale employed by Judge Smith of this court in Evans v.
Pemco, CV-96-S-2801-S, 1998 WL 1040470 (N.D. Ala.). Nevertheless,
the dispositive motion deadline is 4:30 p.m., April 14, 2006.
Assuming, arguendo, that any Rule 56 motion will be overruled, the
case is SET for final pretrial conference at 9:30 a.m., April 28,
2006.
9. All motions in limine, including Daubert motions, shall
Lumpkin v. Coca-Cola Bottling Co. United, Inc., 216 F.R.D. 380, 385 (S.D. Miss. 2003) (citations omitted; emphasis added). See, e.g., Hipp, 252 F. 3d at 1221-22; Domingo v. New England Fish Co., 727 F. 2d 1429, 1444 (9th Cir. 1984) (“as a prerequisite to obtaining relief, each class member must demonstrate, by fact of employment or otherwise, that he or she had been discriminated against during the limitation period or was a member of a group exposed to discrimination during that time.”); Laffey v. Northwest Airlines, Inc., 567 F. 2d 429, 472 (D.C. Cir. 1976) (“the timely filing of an EEOC Charge by one member of a class could not revive claims which were no longer viable at the time of filing”).
Although the Supreme Court in National RR Passenger Corp. V. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002), allows a hostile race environment plaintiff to recover damages for some portion of a hostile environment that preceded the 180 days prior to the necessary EEOC complaint during which some discrete incident manifesting the hostile environment occurred, it nevertheless recognizes that the holding “does not leave employers defenseless against employees who bring hostile work environment claims that extended over long periods of time”. 122 S. Ct. 2076. This defense is provided by ordinary principles of equity jurisprudence. It would neither be fair nor equitable in the instant case to allow monetary damages to be recovered for a hostile environment that Pemco inherited when it was formed in 1987. Exercising its discretion, this court will allow recovery of damages by an individual member of the class represented by the EEOC only if it was sustained on or after January 1, 1995.
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be filed before 4:30 p.m., April 28, 2006. 10. The trial of the case will be bifurcated so that the jury
will first be called upon to determine whether a hostile racial environment existed at Pemco at any time after August 28, 1997, and if so, the date on or after January 1, 1995, when it began. The jury will be instructed that if a hostile environment pre-dated January 1, 1995, the starting date would be January 1, 1995. Only if the jury answers so as to establish liability will the same jury hear evidence bearing on the amount of damages for mental anguish, if any, suffered by individual members of the represented group, who are precluded from recovering monetary damages.
11. To the extent this order is inconsistent with prior orders of the order, this order supersedes those orders and controls future proceedings.
12. The parties are admonished to GET BUSY. DONE this 2nd day of December, 2005.
_____________________________ WILLIAM M. ACKER, JR. UNITED STATES DISTRICT JUDGE
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 Case 2:00-cv-02762-WMA

Document 100

Filed 04/16/2007

Page 1 of 20

FILED

2007 Apr-16 AM 11:28 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, V. PEMCO AEROPLEX, INC., Defendant.

] ] ] ] CV: 00-AR-2762-S ] ] ] ] ] ]

CONSENT DECREE 1. This Consent Decree (the “Decree”) has been entered by the Court and has been made and agreed to by and between Plaintiff United States Equal Employment Commission (hereinafter “EEOC”) and Defendant Pemco Aeroplex, Inc. (hereinafter “Pemco”). 2. On September 28, 2000, EEOC initiated this action by filing its Complaint against Pemco. EEOC’s Complaint alleged that Pemco violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section2000e et seq. (“Title VII”), at its Birmingham, Alabama, facility by subjecting Black employees to a hostile work environment based upon their race. The EEOC alleged that these violations have taken place since at least January 1995 and that a class of Black employees were harmed by these violations. The Court has determined that the class for which the Commission may seek monetary damages (the “Class Members”) shall consist of all African-American individuals employed by Pemco at its Birmingham, Alabama, facility at some point between August of 1997 until the date of the entry of the Decree, excluding any individual who, after January 1, 1995, had a pending action against Pemco in which that individual made a claim of race discrimination of
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any type and whose case has been concluded on the merits. Pemco specifically denies any liability and is entering into this Consent Decree for the purpose of resolving this matter in an amicable fashion.
3. In the interest of resolving this matter and as a result of having engaged in comprehensive settlement negotiations, the Parties have agreed that this action should be finally resolved by entry of this Decree.
4. This Decree is entered in full and complete settlement of: any and all claims arising out of or contained in EEOC Charge Numbers 130-98-2212 through 130-98-2247, as well as any amendments to those charges to the extent that such claims have not already been resolved by private settlement and/or litigation; any and all claims asserted by the Commission in Civil Case No. CV-00AR-2762-S. The Parties further agree that this Decree does not, however, resolve any Charges that may be pending with the EEOC other than the Charges specifically referred to in this paragraph or those that may be released by “Class Members” (as that term is defined herein) pursuant to this Decree.
5. This Decree constitutes the complete agreement between the EEOC and Pemco with respect to the matters referred to herein. No waiver, modification or amendment of any provision of this Decree shall be effective unless made in writing, approved by all parties to this Decree and approved or ordered by the Court. This Decree is final and binding upon the Parties, their agents, successors and assigns.
6. Having carefully examined the terms and provisions of this Decree, and based on the pleadings, record, and stipulations of the parties, the Court finds the following:
a. This Court has jurisdiction of the subject matter of this action and of the parties.
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b. The terms of this Decree are adequate, fair, reasonable, equitable and just. The rights of the EEOC, Defendants, Class Members and the public interest are adequately protected by this Decree.
c. This Decree conforms with the Federal Rules of Civil Procedure and Title VII and is not in derogation of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII and will be in the best interests of the parties, the Class Members and the public.
NOW, THEREFORE, the Court having carefully examined the terms and provisions of this Consent Decree, and based on the pleadings, record and stipulations of the Parties, it is ORDERED, ADJUDGED, AND DECREED that:
GENERAL INJUNCTIVE PROVISION 7. Racial Discrimination: a. Pemco and its officers, agents, management (including supervisory employees), successors and assigns, and all those in active concert or participation with them, are enjoined from: (i) engaging in or being party to any action, policy or practice that is intended to or is known to them to have the effect of harassing or intimidating any African-American employee on the basis of his or her race; and/or (ii) creating, facilitating or tolerating the existence of a work environment that is racially hostile to African-American employees. b. The relief granted by Title VII runs against the employer, not individual employees. While individual employees, acting as agents of the employer, may cause violations of the Act, this paragraph is not intended to create individual liability for such violations. This provision does not, however, limit the scope of the Court’s contempt authority.
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8. Retaliation: a. Pemco and its officers, agents, management (including supervisory employees), successors and assigns, and all those in active concert or participation with them, or any of them, are enjoined from: engaging in, implementing or tolerating any action, policy or practice with the purpose of retaliating against any current or former employee of Pemco because he or she opposed any practice made unlawful under Title VII, filed a Charge of Discrimination alleging any such practice, testified or participated in any manner in any investigation (including, without limitation, any internal investigation undertaken by Pemco), proceeding, or hearing in connection with this case and/or relating to any claim of discrimination under Title VII, was identified as a possible witness in this action, asserted any rights under this Decree, or sought and/or received any monetary and/or non-monetary relief in accordance with this Decree. b. The relief granted by Title VII runs against the employer, not individual employees. While individual employees, acting as agents of the employer, may cause violations of the Act, this paragraph is not intended to create individual liability for such violations. This provision does not, however, limit the scope of the Court’s contempt authority. 9. Internal Complaint Procedure: Pemco shall establish and maintain an internal complaint procedure (independent from that established by collective bargaining) that is designed to encourage employees to come forward with complaints regarding race discrimination (including racial or race harassment) regardless of the position held by the person alleged to be engaging in the discriminatory conduct. Pemco’s complaint procedure shall provide for the following: a. a simple, convenient, confidential and reliable mechanism for reporting incidents of race discrimination;
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b. the prompt investigation of complaints of race discrimination; c. written findings of the results of any investigation of a discrimination complaint and the remedial actions proposed, if any; d. an effective means of promptly communicating to the complaining party, in writing, the results of the investigation and the remedial actions taken or proposed, or not take; and e. assurances that complainants shall not be subjected to intimidation, harassment and/or retaliation. 10. Investigations of Complaints: For each incident and/or complaint of racial discrimination or harassment which is reported to Pemco management, Pemco shall conduct an investigation into each such incident and/or complaint. This investigation shall be conducted in accordance with the guidelines set forth in Paragraph 11 and shall be completed as soon as possible following each such complaint. Within thirty days of the entry of this decree Pemco shall adopt a policy regarding the procedures to be followed for the investigation of each such complaint, as well as the documentation of each such investigation, which policy complies with the requirements set out in Paragraph 11. 11. Guidelines for Investigative Procedures: The investigations of complaints shall include interview(s) with the individual(s) making the complaint and/or reporting the incident, as well as interviews with all witnesses identified as individuals having knowledge of the events surrounding the allegations made in the complaint(s). Each such witness shall have the right to provide a separate written statement if he or she so chooses. If any witness does not want to provide a written statement, the individual investigating the allegations shall prepare detailed notes regarding his/her interview of each witness. All interviews shall take place in a private location. Each witness
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shall be allowed to have representation if he/she so desires. A management witness shall be allowed to have any other management employee or an attorney present during such interview if he/she so desires. A non-management employee shall be allowed to have his/her steward or an attorney present during such interview if he/she so desires. If the allegation concerns physical evidence, e.g. graffiti, signs, nooses, Pemco shall preserve such physical evidence as part of the investigative file. Should this not be possible, Pemco shall photograph said evidence (using either digital or film media) and preserve said photographs as part of the investigative file. Said photographs shall identify the date, time, and location of the item or items photographed and shall be a reasonably accurate depiction of said item or items. Where necessary for accuracy, a description of the size and location of said item or items shall be included with the photograph.
A report shall be prepared as soon as is reasonably possible after the completion of the investigation. Each such report shall include:
a. a copy of the initial complaint(s) and/or report(s); b. copies of the statements and/or memoranda for each person interviewed during the course of the investigation; c. a detailed description of any and all evidence reviewed or considered during the investigation; d. any and all findings of fact made as a result of the investigation; e. any and all remedial actions taken as a result of the investigation; f. any and all disciplinary action taken as a result of the investigation; and g. the name and position of each individual who took part in the investigation and the subsequent action(s) taken as a result of the investigation.
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At the completion of the investigation, a summary of each such report (containing a short statement describing the substance of the initial complaint, the steps taken during the investigation, the evidence gathered and considered, and the findings made, including proposed remedial action) shall be issued to each individual who complained or reported the incident. Any individual disciplined as a result of the investigation shall be entitled to a copy of this summary if he/she requests same. Copies shall also be delivered to each management employee involved in the incident or the investigation, the Director of Human Resources, the in-house Counsel, and the President.
12. Notification of Investigations: Pemco shall submit copies of each summary to the EEOC as part of the bi-annual reports required under Paragraph 29.
RACIAL HARASSMENT POLICY 13. Harassment Policy: Within ninety (90) days from the entry of this Decree, Pemco shall adopt a new race harassment policy that meets the following criteria: a. prohibits discrimination against any employee on the basis of race; b. prohibits any act, policy or practice that has the effect of harassing or intimidating any employee on the basis of race; c. prohibits any act, policy or practice that has the effect of creating, facilitating or permitting the existence of a work environment that is hostile to any employee through acts such as physical and/or verbal abuse and derogatory comments based on race; d. defines and provides examples of race harassment; e. provides for prompt investigation of race harassment complaints which will be conducted consistent with the guidelines of Paragraph 11; f. imposes a duty on all Pemco officers, manager, and supervisory personnel actively
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to monitor all work areas to ensure compliance with Pemco’s race harassment policy; g. encourages all Pemco employees to report any incident and/or complaint of race
harassment of which they become aware to the person(s) responsible for handling such complaints; h. provides that upon the conclusion of Pemco’s investigation, the results of the
investigation and the remedial actions taken or proposed will be promptly communicated in writing to the complaining party; and
i. provides for substantial and progressive discipline for violating Pemco’s race harassment policy up to and including discharge.
14. Employee Survey: Pemco shall conduct periodic surveys within its workforce regarding the implementation of the contents of this Decree. Each survey will use the questionnaire attached as Exhibit A to this Decree. The first such survey shall be conducted within the six month period following the enactment of this Decree, and shall be conducted annually during the remainder of the three year period covered by this Decree. Employees shall have the right to remain anonymous on their surveys, if they so desire. Copies of the surveys received by Pemco shall be provided to the Commission along with the reports specified in Paragraph 29 of this Decree.
MONETARY RELIEF 15. Relief To Class Member: Within two (2) days of the entry of this Decree, Pemco shall pay the gross sum of three hundred and ninety thousand dollars ($ 390,000.00) to the EEOC to be deposited with an independent fiduciary. Said sum shall be referred to herein as the “Settlement Fund”. The Settlement Fund shall be distributed among the Class Members in accordance with the provisions of this Decree. 16. Distribution of Settlement Fund: Acting in its discretion, subject to the approval of
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the Court, EEOC shall determine the portion of the settlement allocated and payable to each class member pursuant to this Consent Decree. The Settlement Fund shall be used solely to make payments to individuals identified as class members and in the dollar amounts determined by the EEOC. The EEOC will not distribute any of the Settlement Fund until it has obtained at least 130 executed releases from Class Members. The EEOC will use its best efforts to obtain executed releases from each of the Class Members it has deemed to be core class members.
17. Provisions for Release of Class Member Claims: Each Class Member shall be required to sign the Release Agreement attached as Exhibit B as a condition of receiving benefits from the Settlement Fund. Within two (2) months of the entry of this Decree, the EEOC shall submit to Pemco each of the releases that have been executed by the Class Members.
18. Remainder of Fund: In the event that any amount of the payment designated for the Class Members has not been distributed as required by this Decree after a period of ten (10) months from entry of this Decree, the EEOC shall donate the unclaimed portion of the Settlement Fund to a non-profit organization, selected by the EEOC, that serves to benefit minority workplace interests.
POSTING 19. Posting of Rights: Within fifteen (15) business days after the entry of this Decree, Pemco shall post copies of the Notice attached as Exhibit C to this Decree on each bulletin board used by Pemco for communicating with employees. The Notice shall be open and obvious and shall remain posted for three (3) years from the date of entry of this Decree and shall not be smaller than 12 by 18 inches. Pemco shall take such steps as are necessary to ensure that the posting is not altered, defaced or covered by any other material. 20. Posting of Complaint Procedure: Within ninety (90) days after the entry of this Decree,
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Pemco shall post a notice setting out its complaint procedure on each bulletin board used to post communications to employees. Said Notice shall be open and obvious and will be no smaller than 12 by 18 inches.
TRAINING 21. Training of Management Employees: For a period of five (5) years following the entry of this Decree, all managers (including supervisors) who work or have management responsibilities with Pemco shall participate in an annual training session geared toward management, conducted live by an individual specializing in employment law, paid for by Pemco and approved by the EEOC. Such training shall cover racial discrimination laws, including coverage of harassment issues. This training shall last a minimum of one hour and shall include sections on: management’s responsibilities to maintain a workplace free of harassment and discrimination; the appropriate way to handle any incidents of harassment or discrimination; and information for resources geared to helping management employees effectively deal with such conduct. The training shall allow for a question and answer period. The first training shall take place within ninety (90) days of entry of this Decree. 22. Training of Non-Management Employees: For a period of five years from the entry of this Consent Decree, Pemco shall require all of its non-management employees to attend annual training of not less than one hour’s duration regarding harassment and discrimination in the workplace. Such training should include sections on: what actions constitute harassment and/or discrimination; employee rights and obligations under federal law, including the statute of limitations for asserting claims; what conduct is not acceptable in the workplace; and how an employee can make a complaint about harassment and/or discrimination, both under Pemco’s policy and to the
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EEOC. The training shall allow for a question and answer period. The first training shall take place within ninety (90) days of entry of this Decree.
23. Team Building and Sensitivity Training: In addition to the above training on discrimination issues, Pemco shall provide team building and diversity training on an annual basis to all members of its workforce, which shall deal with such issues as the importance of teamwork and how different members of the workforce can more effectively interact with each other. The first training shall take place within ninety (90) days of entry of this Decree.
24. Training in Investigative Techniques: Pemco shall provide additional annual training to all of its employees with responsibility for the conduct or oversight of investigations into complaints of discrimination and/or harassment with regard to the appropriate manner in which to conduct such investigations. This training shall cover the following areas: what information should be sought; who should be interviewed; how to conduct such interviews; and how to properly document and report the actions taken in the investigation as well as any findings that were reached. The first training shall take place within ninety (90) days of entry of this Decree.
25. Make-Up Training Sessions: Any new or absent employee who would otherwise have been present at any of the training set forth above, must be provided the same training within thirty days of when such training should have been attended, or within thirty days of hire. Such make up training may be done by video rather than live presentation.
26. Approval of Training: a. The parties agree that C. Michael Quinn or his designee, is an acceptable trainer. Pemco shall obtain the EEOC’s approval of any other proposed trainer(s) prior to the training sessions. Pemco shall submit the name, address, telephone number, resume and training proposal
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of the proposed trainer(s) to the EEOC at least sixty (60) business days prior to the proposed date(s) of the training. The EEOC shall have ten (10) business days from the receipt of the information described above to accept or reject the proposed trainer(s). In the event that the EEOC does not approve Pemco’s designated trainer(s), Pemco shall have ten (10) business days to identify an alternative trainer(s). The EEOC shall have ten (10) days from the date of receipt of the information described above to accept or reject the alternative trainer(s). Any dispute concerning the final selection of a trainer shall be resolved in accordance with the Dispute Resolution Procedure set forth below.
b. The EEOC shall have ten (10) business days from the receipt of the training propose to suggest any changes to the contents of the proposed training program. The failure of the EEOC to object to the proposed training shall not be construed as approval of the substance of said training. Any dispute concerning whether the substance of the training complies with the terms Consent Decree shall be resolved in accordance with the Dispute Resolution Procedure set forth below.
27. Evaluations. For the period covered by this Consent Decree Pemco shall modify its evaluations for non-union employees to include a section evaluating the manner in which each such individual performed under Pemco’s discrimination and harassment policy relevant to his/her position, including matters such the treatment of employees under his/her supervision; how complaints of discrimination were handled; and attendance and participation in EEO and related training. During this period, these factors shall be responsible for at least one-sixth of the employee’s evaluation assessment.
RECORD KEEPING 28. Record of Complaints and Investigations: For a period of three (3) years following
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entry of this Decree, Pemco shall maintain records of each complaint of discrimination made by its employees. Such records shall include the entire investigative file prepared in response to the complaint. Pemco shall make all such documents or records available for inspection and copying within ten (10) business days after the EEOC so requests.
REPORTING 29. Written Reports: Pemco shall furnish to the EEOC the following written reports during the term of this Consent Decree. The first report shall be due December 31, 2007. The second report will be due December 31, 2008. The final report shall be due two (2) months prior to the expiration of this decree. Each such report shall contain: a. The summaries of the investigations conducted by Pemco pursuant to Paragraphs 10 and 11; b. A summary of the activities covered by Paragraphs 24 through 31 regarding training and evaluations. c. A certification by Pemco that the Notices required to be posted in Paragraphs 22 and 23 were posted as required for the entire period preceding the report. d. Copies of all surveys received by Pemco employees pursuant to Paragraph 14; e. A certification signed by the Director of Human Resources, In-House Counsel, and the President, acknowledging that each has received and reviewed all investigative reports conducted pursuant to Paragraph 11. All reports and certifications shall be retained for a period of three (3) years.
DISPUTE RESOLUTION 30. Notification of non-compliance: In the event that either party to this Decree believes
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that the other party has failed to comply with any provision(s) of the Decree, the complaining party shall notify the other party of the alleged non-compliance and shall afford the alleged non-complying party twenty (20) business days to remedy the non-compliance or to satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within twenty (20) business days, the complaining party may apply to the Court for appropriate relief.
DURATION OF THE DECREE AND RETENTION OF JURISDICTION 31. Except as otherwise specifically provided in this Decree, all provisions of this Decree shall be in effect (and the Court will retain jurisdiction of this matter to enforce this Decree) for a period of three (3) years immediately following entry of the Decree, provided, however, that if, at the end of the three (3) year period, any disputes under the Decree remained unresolved, the term of the Decree shall be automatically extended (and the Court will retain jurisdiction of this matter to enforce the Decree) until such time as all such disputes have been resolved.
MISCELLANEOUS PROVISIONS 32. Expenses: Except as otherwise provided, each party to this Decree shall bear its own expenses, attorney’s fees and costs. 33. Parties Bound by the Decree: The terms of this decree are and shall be binding upon the present and future directors, officers, managers, agents, successors and assigns of Pemco. Pemco will provide a copy of this Decree to any person(s) or organization(s) which proposes to acquire or merge with Pemco, prior to the effectiveness of any such acquisition or merger. 34. Submission of Reports: When this Decree requires the submission by Pemco of reports, certifications, notices or other materials to the EEOC, they shall be mailed to: Pemco
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Consent Decree Compliance, Charles Guerrier, Equal Employment Opportunity Commission, Ridge Park Place, Suite 2000, 1130 22nd Street, South, Birmingham AL 35205. When this Decree requires submission by the EEOC of materials to Pemco, they shall be mailed to Jeffrey A. Lee, Maynard Cooper & Gale, 1901 6th Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203.
SO ORDERED, ADJUDGED AND DECREED this 16th day of April, 2007.
_____________________________ WILLIAM M. ACKER, JR. UNITED STATES DISTRICT JUDGE For the Commission: Ronald Cooper General Counsel James L. Lee Deputy General Counsel Gwendolyn Young Reams Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 “L” Street NW Washington, D.C. 20507 /s/ C. Emanuel Smith C. Emanuel Smith Regional Attorney /s/ Julie Lee Julie Lee Supervisory Trial Attorney /s/ Charles E. Guerrier Charles E. Guerrier Senior Trial Attorney
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1130 22nd Street, South Ridge Park Place, Suite 2000 Birmingham, AL 35205
For Pemco Aeroplex, Inc.:
/s/ Jeffrey A. Lee Jeffrey A. Lee
/s/ Steve Brown Steve Brown MAYNARD COOPER & GALE 1901 6th Avenue North 2400 AmSouth/Harbert Plaza Birmingham, AL 35203
/s/ Doris Sewell Doris Sewell In-House Counsel Pemco Aeroplex, Inc. 1543 50th Street N Birmingham, AL 35212
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Exhibit A
Pemco Aeroplex, Inc. Employee Survey
Pemco Aeroplex is committed to providing a workplace that is free of discrimination and harassment. To help us achieve that goal we are asking you to take a few minutes to complete this survey. You have the right to remain anonymous if you choose.
1. How long have you worked at Pemco? _________________________________
2. Within the last six months [one year] have you seen racial graffiti anywhere within the Pemco Birmingham facility? If so, where? _________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
Did you report this graffiti to anyone? ____________ Who? _______________________ If you did not report this graffiti, why did you choose not to report it? ________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
If you reported this graffiti, what was done about it? ______________________________ ______________________________________________________________________________ ______________________________________________________________________________
Were you satisfied with Pemco’s response to your complaint? __________ If your answer is “no”, what more could Pemco have done in response to your complaint? __________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________________________________________
3. Within the last six months [one year] have you experienced racial discrimination in the terms or conditions of employment? ____________ If your answer is “yes”, describe the racial discrimination you have experienced. ________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
Did you report this discrimination to anyone? _________ Who? _______________________ If you did not report this conduct, why did you choose not to report it? ________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
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If you reported this conduct, what was done about it? ______________________________ ______________________________________________________________________________ ______________________________________________________________________________
Were you satisfied with Pemco’s response to your complaint? __________ If your answer is “no”, what more could Pemco have done in response to your complaint? __________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________________________________________
4. Do you believe that Pemco managers and supervisors treat all employees equally without regard to race? ________ If your answer is “no”, explain how you believe employees are treated differently. _____________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________________________________________
Have you reported this unequal treatment to Pemco?________ Who __________________ If you did not report this treatmenti, why did you choose not to report it? ________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
If you reported this treatment, what was done about it? ______________________________ ______________________________________________________________________________ ______________________________________________________________________________
Were you satisfied with Pemco’s response to your complaint? __________ If your answer is “no”, what more could Pemco have done in response to your complaint? __________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________________________________________
5. What should Pemco do to remove racism from the workplace? _____________________ ______________________________________________________________________________ _______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________________________________________
Name (voluntary): _______________________________
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In exchange for valuable consideration paid to me in connection with the resolution of EEOC v. Pemco Aeroplex, Inc., Civil Action No. 2:00-cv-02762-WMA (N.D. Ala.), I waive my right to recover for any claim that I was subjected to a racially hostile environment during my employment with Pemco Aeroplex, Inc., arising under Title VII of the Civil Rights Act of 1964, as amended, that I had against Pemco Aeroplex, Inc., prior to the date of this release and that was included in the claims alleged in EEOC’s complaint in EEOC v. Pemco Aeroplex, Inc., Civil Action No. 2:00-cv02762-WMA (N.D. Ala.).

Date:

Signature:

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Exhibit C NOTICE TO ALL EMPLOYEES OF PEMCO AEROPLEX, INC.
BIRMINGHAM, ALABAMA, FACILITY
This Notice is being posted as part of the remedy agreed to pursuant to a Consent Decree between Pemco Aeroplex, Inc., and the Equal Employment Opportunity Commission (EEOC). Copies of the entire Consent Decree are available for review and copying through the Human Resource Office.
Unlawful Discrimination: Under federal law, it is unlawful for an employer to discriminate based on race. Among other things, this means that the work environment should be free from harassment or ridicule based on race or color. Under the Consent Decree, Pemco Aeroplex, Inc., will not discriminate on the basis of race or permit a racially hostile environment to exist at its Birmingham facility.
Unlawful Retaliation: Under federal law, it is also unlawful to discriminate or retaliate against any individual who reports or complains about what he or she reasonably believes to be unlawful discrimination based on race or color. Under the Consent Decree, Pemco Aeroplex, Inc., will not retaliate against any person who opposes discrimination, files a complaint concerning discrimination, or participates in any formal proceeding or internal investigation conducted concerning discrimination in the workplace.
Reporting Improper Conduct: If you are aware of any events, conduct, or information, which you believe may indicate some improper discrimination or harassment, it is very important that you report the information so the necessary steps may be taken to investigate, identify, and promptly remedy any problems. You may report such improper conduct to any of the following:
Reporting to Pemco Aeroplex, Inc.: Within the Pemco organization, you may make such a report to [your human resource representative, or to any supervisor or manager.] WE NEED TO INCLUDE THE PROPER ROUTES FOR REPORTING IN HERE. OBVIOUSLY, THE MORE ROUTES FOR REPORTING THE BETTER. IF THERE IS AN 800 NUMBER OF SUCH, WE SHOULD ALSO INCLUDE IT
Under the Consent Decree, the EEOC is responsible for monitoring Pemco’s compliance with the provisions of the Decree. Copies of the entire Consent Decree are available for review and copying through the Human Resource Office. If you believe that you have been discriminated against or that rights guaranteed to you by the Consent Decree have been violated, you may contact the EEOC at U.S. Equal Employment Opportunity Commission, Ridge Park Place, 1130 22nd Street South, Suite 2000, Birmingham, Alabama, 35242. The EEOC charges no fees and has employees who speak languages other than English.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED
This Notice must remain posted for one year from the date below and must not be altered, defaced or covered by any other material. Any questions about this Notice or compliance with its terms may be directed to the EEOC at the above address.

_________ Date

________________________ For EEOC

_____________________________ For Pemco Aeroplex, Inc.

20

 
 IN THE UNITED STATES DISTRICT COURT

r- ;. f .... ! I :_rr.f~ L_" l ' ,

FOR THE NORTHERN DISTRICT OF ALABAMA 02 FEB '5 pi>.f o,

SOUTHERN DIVISION

22 - • II ..1.·

Ii <: , _·v. U "

' '.: i ,~JURT

EQUAL EMPLOYMENT OPPORTUNITY ]

N.D. Or ., !..:,. ,',At1A

COMMISSION,

]

]

Plaintiff,

]

]

vs.

] CIVil ACTION # OO-AR-2762-S

]

PEMCO AEROPLEX, INC, Defendant.

] ]

DENIED

/¥.J ]
]

~.4dy 1-114 {:.

~'\\~o. MOTION TO CONSOUDATE FOR TRIAL
r~ The Plaintiff, Equal Employment Opportunity Commission renews its

'1'" 'LIjO'l

that this Court consolidate the above referenced matter with the matter of Burnes et 81 v.

Pemco Aeroplex. Inc.. and Precision Standard, Inc., CV-99-AR-328Q-S. The Commission

filed a request for consolidation shortly after it filed suit in this matter, and at that time, this

request was denied. However, since that time, the litigation process has produced

discovery, as Viell as changes in the private plaintiff's positions, which shows that these

two cases are substantially similar in both the claims made and the evidence that will be

presented at trial. For these reasons, as set forth in more detail below, the Commission

again asks this Court consolidate these matters for trial.

 
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U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:00-cv-02762-WMA

CLOSED

EEOC v. Pemco Aeroplex,Inc Assigned to: Judge William M Acker, Jr Demand: $0 Cause: 42:2000 Job Discrimination (Race)
Plaintiff Equal Employment Opportunity Commission

Date Filed: 09/28/2000 Date Terminated: 04/16/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Julie Lee EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1122 22nd Street South, Suite 2000 Birmingham, AL 35205 205-212-2076 Fax: 205-212-2041 Email: julie.lee@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
C Gregory Stewart THE COCHRAN FIRM 1100 New York Avenue, Suite 250 Washington, DC 20005 202-682-5800 Fax: 202-408-8851 Email: gstewart@cochranfirm.com TERMINATED: 11/02/2005 ATTORNEY TO BE NOTICED
Charles Guerrier EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2044 Fax: 205-212-2041 Email: charles.guerrier@eeoc.gov ATTORNEY TO BE NOTICED
Debra Hawes Crook EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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Ridge Park Place, Suite 2000 1130 22nd Street, South Birmingham, AL 35205 205-212-2064 Fax: 205-212-2105 Email: debra.crook@eeoc.gov TERMINATED: 11/18/2005 ATTORNEY TO BE NOTICED
Gwendolyn Young Reams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street NW Washington, DC 20507 TERMINATED: 11/18/2005 ATTORNEY TO BE NOTICED
J Mark Graham EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2054 Fax: 205-212-2041 Email: john.graham@eeoc.gov ATTORNEY TO BE NOTICED
Mason D Barrett EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street, South Birmingham, AL 35205 212-2047 Fax: 212-2041 Email: mason.barrett@eeoc.gov TERMINATED: 11/18/2005 ATTORNEY TO BE NOTICED
Mildred Byrd EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2054 Fax: 205-212-2041 Email: Mildred.Byrd@eeoc.gov TERMINATED: 01/30/2007

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V. Defendant Pemco Aeroplex,Inc

ATTORNEY TO BE NOTICED
Naomi Hilton Archer EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1130 22nd Street, South, Suite 2000 Birmingham, AL 35205 205-212-2053 Fax: 205-212-2041 Email: naomi.archer@eeoc.gov ATTORNEY TO BE NOTICED
Nicholas M Inzeo EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street NW Washington, DC 20507 1-202-663-4639 fax Fax: 1-202-663-4639 fax TERMINATED: 11/18/2005 ATTORNEY TO BE NOTICED
represented by Jeffrey A Lee MAYNARD COOPER & GALE PC 1901 Sixth Avenue North 2400 AmSouth/Harbert Plaza Birmingham, AL 35203 205-254-1987 Fax: 205-254-1999 Email: jlee@maynardcooper.com ATTORNEY TO BE NOTICED
Stephen E Brown MAYNARD COOPER & GALE PC AmSouth Harbert Plaza, Suite 2400 1901 6th Avenue North Birmingham, AL 35203-2618 254-1000 Email: sbrown@maynardcooper.com ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

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09/28/2000 10/12/2000 11/21/2000
12/06/2000 12/07/2000 12/13/2000 12/18/2000
02/28/2001
02/28/2001
03/08/2001 03/12/2001 03/20/2001 04/24/2001 06/27/2001 02/15/2002 02/20/2002 02/26/2002

1 COMPLAINT filed (Former Employee) Additional attachment(s) added on 11/1/2005 (KWC, ). (Entered: 10/02/2000)
2 MOTION by pla EEOC to consolidate cases with case CV-99-AR-3280-S filed cs (Former Employee) (Entered: 10/13/2000)
3 ORDER setting motion to consolidate cases with case CV-99-AR-3280-S [2-1] ; on motion docket at 12/15/00 filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 11/21/2000)
4 ANSWER by defendant Pemco Aeroplex,Inc w/appear by atty(s) Stephen E Brown, Jeffrey A Lee filed cs (Former Employee) (Entered: 12/07/2000)
5 ORDER reminding parties of their obligations under Rules 26 and 16, filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 12/07/2000)
6 RESPONSE by dft Pemco Aeroplex,Inc to pla's motion to consolidate cases with case CV-99-AR-3280-S [2-1] filed cs (DWC) (Entered: 12/14/2000)
7 ORDER granting in part and denying in part motion to consolidate cases with case CV-99-AR-3280-S [2-1] the cases will be consolidate for discovery only, not for trial, filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 12/18/2000)
8 ORDER unless parties fully comply with obligations under Rules 26 and 16 sanctions will be imposed ; Cs Mgmt ddl 4:30 2/12/01 filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 02/28/2001)
9 ORDER (Substituted) vacating Scheduling order [8-1] entered earlier this date; reminding parties that unless they fully comply with obligations under Rules 26 and 16 sanctions will be imposed ; Cs Mgmt ddl 4:30 3/12/01 filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 02/28/2001)
10 Report of Parties (form 35) of compliance with FRCP 26 filed (Former Employee) Additional attachment(s) added on 11/1/2005 (KWC, ). (Entered: 03/09/2001)
11 ORDER ; Status/scheduling hearing to be held on 9:30 3/19/01 filed by Judge William M. Acker Jr ) cm (KAM) (Entered: 03/12/2001)
12 ORDER partially adopting scheduling order as set out in this order filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 03/20/2001)
13 NOTICE of appearance for plaintiff EEOC by Debra Hawes Crook, Mason D Barrett filed cs (Former Employee) (Entered: 04/25/2001)
14 NOTICE of appearance for plaintiff EEOC by J Mark Graham filed cs (Former Employee) (Entered: 07/02/2001)
15 MOTION by plaintiff EEOC to consolidate cases with CV-99-AR-3280-S filed cs (Former Employee) (Entered: 02/19/2002)
16 BRIEF by defendant Pemco Aeroplex,Inc in response to motion to consolidate, filed cs (Former Employee) (Entered: 02/21/2002)
17 15 - ORDER denying motion to consolidate cases with CV-99-AR-3280-S [15-1] ( by Judge William M. Acker Jr ) entered cm (Former Employee) (Entered:

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03/07/2002 03/22/2002 04/01/2002
04/02/2002 04/16/2002 05/09/2002 05/13/2002
05/31/2002 06/04/2002 06/06/2002 06/24/2002 06/24/2002 07/01/2002 07/01/2002 07/09/2002

02/26/2002)
18 ORDER -By agreement of the parties Clarnece M. Small, Jr. is hereby appointed the mediator in the above styled case filed ( by Judge William M. Acker Jr ) cm (MAA) (Entered: 03/07/2002)
19 MOTION by pla EEOC for order for modification of the court's 3/7/02 order filed cs (Former Employee) (Entered: 03/22/2002)
20 ORDER-the motion of pla EEOC for modification of court's order of 3/7/02 was previously scheduled to be heard at this court's regular Motion Docket on 4/12/02; mediation is set for April 3-4, 2002, the hearing on the aforementioned motion is rescheduled for 4/2/02 at 9:30 a.m. filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 04/01/2002)
21 19 - ORDER withdrawing motion for order for modification of the court's 3/7/02 order [19-1] ( by Judge William M. Acker Jr ) entered cm (Former Employee) (Entered: 04/02/2002)
22 MOTION by dft Pemco Aeroplex,Inc for order compelling production filed cs (Former Employee) (Entered: 04/17/2002)
23 RESPONSE by pla EEOC to dfts motion to compel [22-1] filed cs (Former Employee) (Entered: 05/10/2002)
24 22 - ORDER denying motion for order compelling production [22-1] w/o prejudice to dfts rights to enforce discovery requests under the Federal Rules of Civil Procedure ( by Judge William M. Acker Jr ) entered cm (Former Employee) (Entered: 05/13/2002)
25 MOTION by defendant Pemco Aeroplex,Inc to compel production of documents with exhibits attached thereto filed cs (MAA) (Entered: 05/31/2002)
MOTION referral (utility event) referring to Magistrate-Judge Robert R. Armstrong Jr the motion to compel production of documents [25-1] (Former Employee) (Entered: 06/04/2002)
26 ORDER-pla shall file a written response to dfts Motion to Compel no later than 6/24/02 filed ( by Magistrate-Judge Robert R. Armstrong Jr ) cm (Former Employee) (Entered: 06/06/2002)
27 MOTION by pla EEOC to extend time 5 days to submit evidence in support of Commissions response to motion to compel filed cs (Former Employee) (Entered: 06/25/2002)
28 RESPONSE by pla EEOC to dfts motion to compel production of documents [25-1] w/attachments filed cs (Former Employee) (Entered: 06/25/2002)
29 ORDER ; status and scheduling conference to be held on 9:30 7/9/02 filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 07/01/2002)
30 MOTION by pla EEOC for order to submit evidence in support of Commission's response to motion to compel filed cs (Former Employee) (Entered: 07/02/2002)
31 ORDER-regarding status and scheduling conference held on 7/9/02 it is ORDERED as follows; on or before 7/20/02 pla shall furnish to dft a list of all plas

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07/19/2002 07/19/2002
07/19/2002
07/29/2002 07/30/2002 08/01/2002 08/08/2002 08/08/2002 08/16/2002 08/16/2002
08/21/2002 08/26/2002 08/26/2002 08/26/2002

witnesses; w/i 7 calendar days of receiving said list, dft shall furnish to pla a list of any additional dfts witnesses not previously identified by dft; the discovery schedule is AMENDED to allow discovery until 9/27/02 but only by deposition; if dft desires to file a motion for summary judgment he shall do so on or before 9/9/02; all other dispositive motions must be filed no later than 10/25/02 filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 07/09/2002)
32 WITNESS list by plaintiff EEOC filed cs (Former Employee) (Entered: 07/19/2002)
33 30 - ORDER granting motion for order to submit evidence in support of Commission's response to motion to compel [30-1] deemed filed 7/2/02 (by Magistrate-Judge Robert R Armstrong Jr) entered cm (Former Employee) (Entered: 07/19/2002)
34 27 - ORDER granting motion to extend time 5 days to submit evidence in support of Commissions response to to compel [27-1] deemed filed 7/2/02 (by Magistrate-Judge Robert R. Armstrong Jr ) entered cm (Former Employee) (Entered: 07/19/2002)
35 WITNESS list by defendant Pemco Aeroplex,Inc filed cs (Former Employee) (Entered: 07/29/2002)
36 MOTION by dft Pemco Aeroplex,Inc to quash deposition notice filed cs (Former Employee) (Entered: 07/31/2002)
37 MOTION by dft Pemco Aeroplex,Inc to strike portions of plas witness list filed cs (Former Employee) (Entered: 08/01/2002)
38 RESPONSE by pla EEOC to dfts motion to quash deposition notice [36-1] filed cs (Former Employee) (Entered: 08/09/2002)
39 RESPONSE by pla EEOC to dfts motion to strike portions of plas witness list [37-1] filed cs (Former Employee) (Entered: 08/09/2002)
40 37 - ORDER granting motion to strike portions of plas witness list [37-1] ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 08/16/2002)
41 36 - ORDER granting motion to quash deposition notice [36-1] but with the understanding that Sewell will not be allowed to testify about anything that has happened after July 24, 2001 ( by Judge William M. Acker Jr ) entered cm (Former Employee) (Entered: 08/16/2002)
42 MOTION by dft Pemco Aeroplex,Inc for order for entry of revised scheduling order , and to extend discovery time to 12/31/02 filed cs (Former Employee) (Entered: 08/22/2002)
43 MOTION by dft Pemco Aeroplex,Inc to amend answer filed cs (Former Employee) (Entered: 08/27/2002)
44 MOTION by pla EEOC for order for revision of the scheduling order , and to extend time for discovery filed cs (Former Employee) (Entered: 08/27/2002)
45 MOTION by pla EEOC to quash 30 deposition notices filed cs (Former Employee) (Entered: 08/27/2002)

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08/26/2002 08/29/2002 09/03/2002 09/05/2002 09/05/2002 09/09/2002 09/10/2002
09/23/2002 09/25/2002 09/26/2002 10/07/2002

46 MOTION by dft Pemco Aeroplex,Inc for protective order , and to strike portions of plas 30(b) deposition notice filed cs (Former Employee) (Entered: 08/27/2002)
47 RESPONSE by dft Pemco Aeroplex,Inc to plas motion for order for revision of the scheduling order [44-1] and extension of time for discovery and motion to quash filed cs (Former Employee) (Entered: 08/29/2002)
48 ORDER granting motion to amend answer [43-1]; dft is allowed to amend its answer along the lines requested if done w/i 7 calendar days ; all other pending motions are set for special hearing to be held on 1:30 9/6/02 in chambers filed ( by Judge M. Acker Jr ) cm (Former Employee) (Entered: 09/03/2002)
49 MOTION by pla EEOC to extend time 10 full days for discovery to respond to dfts motion to quash filed cs (Former Employee) Modified on 09/06/2002 (Entered: 09/06/2002)
50 MOTION by pla EEOC to compel answers to interrogatories and responses to requests for production of documents filed cs (Former Employee) Modified on 09/06/2002 Additional attachment(s) added on 11/1/2005 (KWC, ). (Entered: 09/06/2002)
51 MOTION by dft Pemco Aeroplex,Inc for summary judgment filed cs (Former Employee) (Entered: 09/10/2002)
52 ORDER finding the motion to extend time 10 full days for discovery to respond to dfts motion to quash [49-1] moot, finding the motion for order for revision of the scheduling order [44-1] moot, finding the motion to extend time for discovery [44-2] moot, granting motion for order for entry of revised scheduling order [42-1], granting motion to extend discovery time to 12/31/02 [42-2], the motion filed by EEOC on 8/26/02 to quash deposition notices [45-1] is DEFERRED pending a ruling on Pemco's Rule 56 motion filed on 9/9/02; Pemco's motion of 8/26/02 for a protective order and to strike portions of EEOC's 30(b)(6) deposition notice [46-1] [46-2] is DEFERRED pending the courts ruling on Pemco's motion for summary judgment; EEOC's motion of 9/5/02 to compel answers to interrogatories and request for production of documents [50-1] is DEFERRED pending a ruling Pemco's motion for summary judgment; EEOC to respond to motion for summary judgment by Pemco before 9/23/02; pemco to reply before 9/30/02 as set out filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 09/10/2002)
53 RESPONSE by pla EEOC to dft's motion for summary judgment [51-1] filed cs (KLL) (Entered: 09/24/2002)
54 MOTION by dft Pemco Aeroplex,Inc to extend time to 10/7/02 to respond to pla's motion for sumjgm filed cs (KLL) (Entered: 09/26/2002)
55 54 - ORDER granting motion to extend time to 10/7/02 to respond to pla's motion for sumjgm [54-1] ( by Judge M. Acker Jr ) entered cm (Former Employee) (Entered: 09/26/2002)
56 BRIEF (REPLY) by dft Pemco Aeroplex,Inc filed cs (Former Employee) (Entered: 10/08/2002)

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11/12/2002 11/15/2002 11/18/2002
12/13/2002 12/13/2002 02/10/2003 02/13/2003 02/25/2003 02/26/2003 02/28/2003 05/19/2003 05/19/2003
08/25/2003 08/25/2003
12/29/2004

57 ORDER dfts motion for summary judgment is SET for oral argument at 10:30 a.m. on 11/21/02 in courtroom 4B filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 11/12/2002)
58 MOTION by dft Pemco Aeroplex,Inc to continue summary judgment hearing scheduled for 11/21/02 at 10:30 a.m. until the afternoon of 11/22/02 or later date filed cs (Former Employee) (Entered: 11/18/2002)
59 ORDER granting motion to continue summary judgment hearing scheduled for 11/21/02 at 10:30 a.m. until the afternoon of 11/22/02 or later date [58-1] hearing rescheduled for 11/22/02 at 1:30 pm. Courtroom 4B filed ( by Judge William M. Acker Jr ) cm (MAA) (Entered: 11/18/2002)
60 MEMORANDUM opinion filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 12/13/2002)
61 ORDER adopting memorandum [60-1]; dfts motions for summary judgment is GRANTED; dismissing case w/prej ; costs are taxed against pla filed ( by Judge William M. Acker Jr ) cm (Former Employee) (Entered: 12/13/2002)
62 NOTICE of appeal by plaintiff EEOC from District Court decision [61-2] ; notice of appeal, order appealed from and court copy of docket entries w/transmittal letter mailed cm (Former Employee) (Entered: 02/11/2003)
NOTIFICATION by Circuit Court of Appellate docket number 03-10719-H (Former Employee) (Entered: 02/13/2003)
63 Appeal Information Sheet (Yellow Copy) filed [62-1] (Former Employee) (Entered: 02/26/2003)
64 Appeal Information Sheet (xerox copy) filed [62-1] (Former Employee) (Entered: 02/26/2003)
65 Appeal Information Sheet (green copy) filed [62-1] (Former Employee) (Entered: 03/03/2003)
66 TRANSCRIPT of proceedings had before Judge William M. Acker Jr on November 22, 2002 , filed - Court Reporter Virginia Flowers (KAM) (Entered: 05/19/2003)
TRANSCRIPT of proceedings had in this and cv 99-AR-3280-S before Judge William M. Acker Jr on the following date(s): April 2, 2002 (Re: [65-1] ) filed Virginia Flowers [see transcript in 99-AR-3280-S - document #265] (SNH) Modified on 06/02/2003 (Entered: 06/02/2003)
67 CERTIFICATE of Readiness issued, cm (SRJ) (Entered: 08/25/2003)
67 CERTIFIED RECORD on APPEAL consisting of Two (2) Volumes of Pleadings, One (1) Volume of Transcript doc. #66, & One (1) Expandable Folder containing doc. #28 with certified copy of docket entries and transmittal mailed to US Court of Appeals cm (SRJ) (Entered: 08/25/2003)
68 ORDER Status and scheduling Conference set for 1/5/2005 09:30 AM before Judge William M Acker Jr.. Signed by Judge William M Acker Jr on 12/29/04. (KGE, ) (Entered: 12/29/2004)

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01/04/2005 01/04/2005 01/05/2005 01/11/2005
01/18/2005 10/18/2005
11/01/2005 11/17/2005 11/18/2005 11/29/2005
11/29/2005 11/29/2005

69 MANDATE of USCA as to 62 Notice of Appeal filed by Equal Employment Opportunity Commission, case REVERSED and REMANDED to District Court, issued as mandate 1/3/05; before Marcus; with opinion attached (KGE, ) (Entered: 01/05/2005)
Appeal Record Returned from USCA consisting of one volume of original exhibits and three volumes of original pleadings (KGE, ) (Entered: 01/05/2005)
Minute Entry for proceedings held before Judge William M Acker Jr: Status Conference held on 1/5/2005. (KWC) (Entered: 01/05/2005)
70 ORDER as this court understands the Eleventh Circuit, it expects all of Pemco's present and former black employees to be included within the class that the EEOC has undertaken to represent; the pla class includes all of the 36 plas in Burnes, et al v Pemco; if either party disagrees with this courts reading of the Eleventh Circuit opinion, it shall file a memorandum brief no later than 4:30 p.m., 1/18/05; STAYING CASE except for the parties obligation to respond to the preceding paragraph; Brief due by 1/18/2005 Signed by Judge William M Acker Jr on 1/11/05. (KGE, ) (Entered: 01/11/2005)
71 Brief re70 Order Staying Case, Set Deadlines, Memorandum Brief. (Lee, Jeffrey) (Entered: 01/18/2005)
72 ORDER based on the mandate of the Eleventh Circuit and the denial of petition for writ of certiorari by the Supreme Court, the case is SET for final Pretrial Conference 11/1/2005 02:00 PM before Judge William M Acker Jr.. Signed by Judge William M Acker Jr on 10/18/05. (Attachments: # 1 Exhibit Pretrial Instructions)(KGE, ) (Entered: 10/18/2005)
Minute Entry for proceedings held before Judge William M Acker Jr: Final Pretrial Conference deferred to later date; Status conference held on 11/1/2005; PT order to be issued at a later date. (Court Reporter Virginia Flowers) (KWC) (Entered: 11/01/2005)
73 Ex Parte MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission. (Graham, J) (Entered: 11/17/2005)
ORDER granting 73 Motion to Withdraw as Attorney. Attorney Debra Hawes Crook terminated. Attorney NIcholas M. Inzeo terminated . Signed by Judge William M Acker Jr on 11/18/05. (SKB, ) (Entered: 11/18/2005)
74 ORDER because the court should have required the parties to file with the Clerk their simultaneous memoranda and cover letters submitted to the court in chambers on 11/18/05, the said papers are attached hereto, and the Clerk is DIRECTED to file them in order to make the record complete. Signed by Judge William M Acker Jr on 11/29/05. (Attachments: # 1 Exhibit EEOC Response# 2 Exhibit Maynard Cooper Response)(KGE, ) (Entered: 11/29/2005)
75 RESPONSE to seven questions asked to be addressed filed by Pemco Aeroplex,Inc. (KGE, ) (Entered: 11/29/2005)
76 MEMORANDUM Brief (Response) to seven questions to be addressed filed by Equal Employment Opportunity Commission. (KGE, ) (Entered: 11/29/2005)

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12/02/2005
12/05/2005 12/16/2005 12/21/2005 12/30/2005 01/03/2006 01/19/2006 01/23/2006 01/25/2006 01/26/2006 01/26/2006

77 ORDER withdrawing reference of this case to Magistrate Judge Armstrong, EEOC to file a copy of Ms. Domingue's declaration and submit to the court for in camera review all material requested by Pemco and claimed by EEOC to be privileged by 12/16/05; denying EEOC's motion to dismiss, Pemco to furnish info to EEOC by 12/30/05; depositions to be completed by 3/31/2006; dispositive motions by 4/14/2006; rule 56 motion will be overruled; case set for final pre-trial at 9:30 a.m. on 4/28/2006; motions in liminie, including Daubert motions, to be filed before 4:30 p.m. 4/28/06; jury trial will be bifurcated; this order supersedes all previous orders of the court and controls future proceedings. Signed by Judge William M Acker Jr on 12/02/2005. (SNH, ) (Entered: 12/02/2005)
Reset Scheduling Order Deadlines: Final Pretrial Conference set for 4/28/2006 09:30 AM before Judge William M Acker Jr.; dispositive Motions due by 4/14/2006; ddl to file motions in limine is 4/28/2006. (KWC) (Entered: 12/05/2005)
78 NOTICE of filing the declaration of Cari M Dominguez by Equal Employment Opportunity Commission (in camera review of all documents requested by dft sent to Judge Acker) (Attachments: # 1 Exhibit Declaration of Cari M Dominguez)(KGE, ) (Entered: 12/19/2005)
79 MEMORANDUM OPINION and ORDER if EEOC files the suggested concession by 4:30 pm 12/30/05, Pemco's motion to compel will be denied; if not, an appropriately redacted set of EEOC's materials will be made available to Pemco by the partial grant of Pemco's motion; ddl created for 4:30 pm 12/30/2005.. Signed by Judge William M Acker Jr on 12/21/05. (KGE, ) (Entered: 12/21/2005)
80 RESPONSE to Motion re 25 Motion to Compel as suggested by the Court's Order of December 21, 2005 [Doc. 79] filed by Equal Employment Opportunity Commission. (Graham, J) (Entered: 12/30/2005)
81 ORDER -In accordance with memo opin and order entered 12/21/05 and in view of response filed 12/30/05, motion to compel filed by dft is DENIED; materials submitted by pla for in camera review shall remain under seal. Signed by Judge William M Acker Jr on 1/3/06. (MAA, ) (Entered: 01/03/2006)
82 Second MOTION for Protective Order by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A part 1# 2 Exhibit A part 2# 3 Exhibit A part 3# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D)(Graham, J) (Entered: 01/19/2006)
83 NOTICE of Hearing on Motion 82 Second MOTION for Protective Order: Motion Hearing set for 2/17/2006 09:00 AM before Judge William M Acker Jr. (KWC) (Entered: 01/23/2006)
84 First MOTION to Expedite Hearing on EEOC's second Motion for Protective Order (doc 82) by Equal Employment Opportunity Commission. (Graham, J) (Entered: 01/25/2006)
Reset Hearings: Docket Call - hearing on motion doc #84 set for 1/27/2006 09:30 AM before Judge William M Acker Jr. (KWC) (Entered: 01/26/2006)
85 ORDER the motion of pla, EEOC, filed on 1/25/06, for an expedited hearing or for a stay of the depositions, is PARTIALLY GRANTED; the EEOC's motion for protective order is SET for hearing on 1/27/2006 09:30 AM and removed from

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01/26/2006 01/27/2006 02/10/2006
03/03/2006
03/09/2006 03/14/2006 03/15/2006 03/16/2006 03/17/2006
03/17/2006 03/24/2006 04/25/2006 05/16/2006 05/16/2006

the motion docket of February 17, 2006 . Signed by Judge William M Acker Jr on 1/26/06. (KGE, ) (Entered: 01/26/2006)
86 RESPONSE to Motion re 82 Second MOTION for Protective Order filed by Pemco Aeroplex,Inc. (Lee, Jeffrey) (Entered: 01/26/2006)
Minute Entry for proceedings held before Judge William M Acker Jr: Docket Call on motion for protective order held on 1/27/2006. (Court Reporter Virginia Flowers) (KWC) (Entered: 01/27/2006)
87 ORDER granting in part and denying in part as set out in order, EEOC's motion for protective order, Motions terminated: 82 Second MOTION for Protective Order filed by Equal Employment Opportunity Commission,.. Signed by Judge William M Acker Jr on 2/10/06. (MAA, ) (Entered: 02/10/2006)
88 MEMORANDUM OPINION and ORDER the parties are ORDERED to file a joint stipulation or separate responses to suggestions made in this order by 4:30 pm on 3/20/2006.. Signed by Judge William M Acker Jr on 3/3//06. (KGE, ) (Entered: 03/03/2006)
89 Witness List supplemented pursuant to Court Order of February 6, 2006 by Equal Employment Opportunity Commission. (Graham, J) (Entered: 03/09/2006)
90 MOTION for Extension of Time to Complete Discovery and Motion for Status Conference by Pemco Aeroplex,Inc. (Lee, Jeffrey) (Entered: 03/14/2006)
91 NOTICE of Hearing on Motion 90 MOTION for Extension of Time to Complete Discovery and Motion for Status Conference: Motion Hearing set for 3/24/2006 09:00 AM before Judge William M Acker Jr. (KWC) (Entered: 03/15/2006)
Minute Entry for proceedings held before Judge William M Acker Jr: Telephone Conference held on 3/16/2006. (KWC) (Entered: 03/20/2006)
92 ORDER -It is ORDERED that while parties either mediate with a chosen mediator, or ask the court to appt a Magistrate Judge as mediator, all deadlines are SUSPENDED,to be rescheduled after one of the parties informs the court that mediation has been unsuccessful or sixty days from this date whichever first occurs, Motions terminated: 90 MOTION for Extension of Time to Complete Discovery and Motion for Status Conference. Signed by Judge William M Acker Jr on 3/17/06. (MAA) (Entered: 03/17/2006)
Set Deadlines: Sixty day/mediation rpt ddl set 5/16/2006. (KWC) (Entered: 03/17/2006)
Motion hearing set for 3/24/06 was cancelled on 3/17/06. (KWC) (Entered: 03/24/2006)
Pretrial conf set for 4/28/2006 is cancelled - to be reset later if needed. (KWC) (Entered: 04/25/2006)
Reset Deadlines: Mediation Report due by 6/15/2006. (KWC) (Entered: 05/16/2006)
93 ORDER for good cause, the suspension of discovery and mediation report are extended to June 15, 2006. Signed by Judge William M Acker Jr on 5/16/06.

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06/15/2006 06/16/2006 06/19/2006 09/01/2006 01/17/2007
01/29/2007 01/30/2007 04/05/2007
04/13/2007 04/16/2007 07/11/2007 07/12/2007 07/12/2007 07/12/2007

(KGE, ) (Entered: 05/16/2006)
94 STATUS REPORT Joint Report of Mediation by Equal Employment Opportunity Commission. (Graham, J) (Entered: 06/15/2006)
95 ORDER-In view of the joint report of mediation filed 6/15/06, the time within which mediation shall take place is EXTENDED to 8/4/06. . Signed by Judge William M Acker Jr on 6/16/06. (MAA, ) (Entered: 06/16/2006)
Reset Deadlines: joint mediation report due by 8/4/2006. (KWC) (Entered: 06/19/2006)
Reset Deadlines: Status Report due by 9/1/2006. (KWC) (Entered: 09/01/2006)
96 ORDER the court has been patient with the parties while they undertook to mediate the case before an mediator, who has work diligently but unsuccessfully toward a resolution, the court's patience in a case in which unlimited patience would be to the court's advantage, is exhausted, accordingly, this case is set for Trial on 5/14/2007 at 09:00 AM . Signed by Judge William M Acker Jr on 1/17/2007. (KSS, ) (Entered: 01/17/2007)
97 MOTION to Substitute Attorney by Equal Employment Opportunity Commission. (Guerrier, Charles) (Entered: 01/29/2007)
ORDER granting and ordering accordingly 97 Motion to Substitute Attorney. . Signed by Judge William M Acker Jr on 01/30/07. (SKB, ) (Entered: 01/30/2007)
98 ORDER Status Conference set for 4/17/2007 09:30 AM before Judge William M Acker Jr in courtroom 4B at which time the parties can, if they wish, present a proposed pretrial order, but must respond to the March 3, 2006 order. Signed by Judge William M Acker Jr on 4/5/07. (KGE, ) (Entered: 04/05/2007)
99 Joint MOTION to Approve Consent Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Proposed Consent Decree)(Guerrier, Charles) (Entered: 04/13/2007)
100 CONSENT DECREE by agreement of the parties requirements as set out in this order. Signed by Judge William M Acker Jr on 4/16/07. (KGE, ) (Entered: 04/16/2007)
101 NOTICE by Equal Employment Opportunity Commission of Intent to Distribute Settlement Fund (Guerrier, Charles) (Entered: 07/11/2007)
ORDER granting and ordering accordingly notice of intent to distribute settlement fund (101) . Signed by Judge William M Acker Jr on 07/12/07. (SKB, ) (Entered: 07/12/2007)
102 MOTION for Extension of Time Under Paragrahs 21-24 of the Consent Decree by Pemco Aeroplex,Inc. (Lee, Jeffrey) (Entered: 07/12/2007)
ORDER granting and ordering accordingly 102 Motion to extend time. Signed by Judge William M Acker Jr on 07/12/07. (SKB, ) (Entered: 07/12/2007)

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 Alabama and Mississippi Employers Settle Race Bias Cases for Combin...

http://www.eeoc.gov/press/5-31-07.html

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE May 31, 2007

CONTACT: TTY:

Delner Franklin-Thomas, District Director C. Emanuel Smith, Regional Attorney Julie S. Lee, Supervisory Trial Attorney Charles Guerrier, Senior Trial Attorney Valerie Hicks-Powe, Senior Trial Attorney Mason Barrett, Senior Trial Attorney (205) 212-2045 (205) 212-2112

ALABAMA AND MISSISSIPPI EMPLOYERS SETTLE RACE BIAS
CASES FOR COMBINED $454,000 AND OTHER
REQUIREMENTS
EEOC Suits Charged Nooses, Swastikas, Graffiti Were Displayed to Harass Black Workers
BIRMINGHAM, Ala. – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has resolved three race discrimination lawsuits in Alabama and Mississippi for a combined total of nearly half a million dollars and injunctive relief – including the settlement of a class case against Pemco Aeroplex, a Birmingham-based aerospace and defense company, involving nooses, swastikas and other threatening symbols creating a hostile work environment for African American workers. The other cases were settled with Ryan’s Restaurant Group, Inc. and Renal Care Group, Inc.
“Despite what some may think, overt racial harassment of African Americans still occurs in workplaces more than 40 years after passage of the landmark Civil Rights Act,” said EEOC Chair Naomi C. Earp. “In addition to the severe types of race discrimination witnessed in these cases, the EEOC also is seeing more subtle forms of bias against people of color – which is why we recently launched the E.RACE Initiative.”
In February 2007, Chair Earp unveiled the Commission’s E-RACE Initiative (Eradicating Racism And Colorism from Employment), a national outreach, education, and enforcement campaign focusing on new and emerging race and color issues in the 21st century workplace. Further information about the E-RACE Initiative is available on the EEOC’s web site at http://www.eeoc.gov/initiatives/e-race/index.html.
In the biggest of the three EEOC litigation settlements announced today, Pemco Aeroplex will pay $390,000 and modify its policies on workplace discrimination. The agency’s suit (Civil Action Number 200-cv-02762-WMA in the U.S. District Court for the Northern District of Alabama), filed in September 2000, was based upon 36 separate discrimination charges which had been filed in 1998. The EEOC charged that, since at least January 1995, Pemco had engaged in a "pattern or practice" of race discrimination against its black employees by subjecting them to a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964. The EEOC said this hostile environment included racially offensive graffiti, the display of nooses, swastikas and KKK graffiti in work areas, as well as racial slurs and epithets.
In addition to a fund of $390,000 to be distributed to aggrieved Pemco workers, the consent decree settling the lawsuit requires Pemco to revamp its policies concerning workplace racial harassment and retaliation -- including implementing a new internal complaint procedure, annual training on the company's equal employment opportunity policies and investigative procedures, and other preventative measures. Pemco will also conduct periodic surveys on implementing the agreement and provide team building and diversity training.
Some private individuals also filed a separate lawsuit against Pemco, which provides aircraft maintenance and modification services for government and military customers. The claims in that litigation were either settled or went to trial in 2002. At one point, the EEOC complaint was dismissed, but then reinstated after a successful appeal.
In another case, Ryan’s Restaurant Group, Inc. agreed to pay $41,000 to a black former employee to settle an EEOC race bias suit (Civil Action Number 6:05-cv-02540-LSC in the U.S. District Court for the Northern District of Alabama). The EEOC charged that Ryan's violated Title VII when it created and condoned a racially hostile work environment at its Jasper, Ala., restaurant. The harassment included the display of hangman's nooses by the Jasper restaurant's manager. The employee complained about the workplace nooses, the EEOC said, and was fired in retaliation. This settlement also includes requirements for anti-discrimination training.
According to its web site, Ryan's Restaurant Group is headquartered in Greer, S.C., and operates more than 340 Ryan's and Fire Mountain restaurants in 23 states primarily in the Southern and Midwestern United States. The company employs approximately 23,000 employees and serves more than 110 million customers annually.
Finally, the EEOC settled its lawsuit against kidney dialysis center Renal Care Group, Inc. of Jackson, Miss., for $21,000 (Civil Action No. 3:05-cv-00052-HTW-JCS in U.S. District Court for the Southern District of Mississippi, Jackson Division). The EEOC’s suit alleged that Renal Care discriminated against the African American facility manager and fired her for

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Alabama and Mississippi Employers Settle Race Bias Cases for Combin...

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complaining about discrimination.
EEOC Birmingham District Director Delner Franklin-Thomas. “We encourage employers to implement training programs, as well as other policies and procedures, to prevent discrimination in the first instance. Proactive prevention measures promote voluntary compliance, which is in the best interest of every employer.”
In all of these cases, the EEOC filed suit only after attempting to reach voluntary settlements.
“Each of these lawsuits addressed the mistreatment of blacks in the workplace based solely on their race,” said EEOC Birmingham Office Regional Attorney C. Emanuel Smith. “The Commission will continue to identify issues, criteria and barriers that contribute to race and color discrimination.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.
This page was last modified on May 31, 2007.

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 383 F.3d 1280 (2004)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.
PEMCO AEROPLEX, INC., Defendant-Appellee.
No. 03-10719.
United States Court of Appeals, Eleventh Circuit.
September 13, 2004.
12812 *1281 *1282 Barbara L. Sloan, EEOC, Washington, DC, for EEOC.
1283 *1283 Jeffrey A. Lee, Stephen E. Brown, Maynard, Cooper & Gale, P.C., Birmingham, AL, for DefendantAppellee.
Before MARCUS and WILSON, Circuit Judges, and DUPLANTIER[*], District Judge.
MARCUS, Circuit Judge:
At issue today is whether the plaintiff, Equal Employment Opportunity Commission ("EEOC"), may proceed with a Title VII enforcement action charging the defendant Pemco Aeroplex, Inc. ("Pemco") with companywide racial harassment, notwithstanding an adverse judgment rendered in a separate action brought by a number of individual plaintiffs who alleged racial harassment by the same defendant. The district court entered summary judgment for the defendant holding that the EEOC was bound by the prior judgment even though the Commission's suit covers employees who were not part of the earlier private suit and notwithstanding that the EEOC was twice denied the opportunity to consolidate its case with the private suit. Because we conclude that there was no privity between the EEOC and the private plaintiffs in the prior action, the district court erred in applying the doctrines of res judicata and collateral estoppel. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
I
The facts and procedural history of this case are straightforward. On December 9, 1999, thirty-six AfricanAmerican employees of Pemco, a military airplane repair and maintenance facility, filed suit in the Northern District of Alabama against their employer, claiming that Pemco violated 42 U.S.C. § 1981 by subjecting them to racial harassment and other forms of race discrimination. See Thomas v. Pemco Aeroplex, No. CV-99-AR-3280-S (N.D.Ala.). The case was initially brought as a class action, but the plaintiffs withdrew their class claim after Pemco opposed certification, and prosecuted the case as thirty-six individual plaintiffs consolidated in one action.
At the same time, the EEOC was investigating multiple charges of discrimination at Pemco, having uncovered possible evidence of nooses, racially inflammatory graffiti, racial slurs by coworkers and supervisors, and other disconcerting incidents of race-related conduct at Pemco's Birmingham facility dating back at least to the late 1980s. In September 2000, the EEOC brought its own suit (the instant case) against Pemco under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, alleging that Pemco subjected its 200 or more black employees to a racially hostile work environment. The EEOC sought injunctive relief and monetary compensation for all of the company's 200 or more black employees. This case was assigned to the same district judge who was hearing the Thomas case.
In October 2000, the EEOC moved to consolidate this suit with the private action (the Thomas case), noting that the two cases involved the same witnesses and issues, and raised common issues of law and fact. Pemco vigorously opposed the motion, arguing that the suits were substantially different and that consolidation would cause the company extreme prejudice. Specifically, Pemco argued that the EEOC's suit involved only one 1284 substantive *1284 claim 0907 a hostile work environment claim covered by Title VII 0907 while the Thomas suit involved

dozens of individual plaintiffs, each with his own claims. The district court denied, without explanation, the request to consolidate the cases for trial, but granted the EEOC's application that discovery undertaken in either case could be used to the extent relevant in the other case.
In February 2002, after discovery in the private suit was completed, the EEOC again moved to consolidate the cases for trial, and offered to forgo further discovery in its own case for the chance to try the cases together. Pemco again opposed the motion, contrasting the EEOC's broad suit alleging class-wide discrimination with the thirty-one[1] private plaintiffs' individual claims. Indeed, Pemco argued that much of the evidence of class-wide discrimination pertinent to the EEOC's suit would be not only irrelevant but also prejudicial to the individual claims. Again, the district court denied the consolidation motion without explanation.
During discovery, the EEOC had attended most of the depositions of the witnesses. The EEOC's attorneys met or conferenced with counsel for the individual plaintiffs on many occasions prior to trial. In April 2002, nine of the Thomas plaintiffs, including the lead plaintiff, settled with Pemco. The remaining twenty-two plaintiffs 0907 who had worked in various parts of Pemco's facility 0907 went to trial before a jury in June. During that trial, an EEOC attorney was present in the courtroom about half the time according to the EEOC, and virtually each day, according to Pemco.[2] Notably, EEOC's counsel did not sit at counsel table during the trial, offer evidence, examine witnesses, or otherwise participate in the trial of the Thomas case.
On June 26, the jury found that none of the twenty-two plaintiffs had been subjected to a hostile work environment between December 9, 1997 and June 3, 2002. The jury was not asked to determine whether a racially hostile work environment existed at Pemco during that time frame. Rather, the jury was asked to decide whether each individual plaintiff had been subjected to a hostile work environment on account of race. The jury answered "no" as to each plaintiff. The court entered judgment against the twenty-two plaintiffs who had gone to trial in the Thomas case, and against Pemco as to the plaintiffs who had accepted offers of judgment.
Soon after, Pemco moved for summary judgment in the EEOC's suit, alleging that it was barred on the grounds of res judicata and collateral estoppel in light of the adverse verdicts in the Thomas suit. Pemco claimed that the two suits addressed the same question 0907 whether a racially hostile work environment pervaded the work atmosphere at Pemco 0907 and that the jury verdict answered this question in the negative. Pemco also argued that the EEOC was in privity with the twenty-two plaintiffs 0907 and could therefore be bound by the verdict against them 0907 essentially because EEOC attorneys attended the trial, participated in joint discovery, and met with plaintiffs' counsel on numerous occasions. The district court granted Pemco's motion, finding that the issues and the evidence in the EEOC's suit were "the same" as those in the Thomas case. See EEOC v. Pemco Aeroplex, Inc., 1285 No. 00-AR-2762-S *1285 (N.D.Ala. Dec. 13, 2002). Without unambiguously finding privity between the EEOC and the private plaintiffs, the district court observed that the EEOC had the opportunity to participate in discovery in Thomas, and that EEOC counsel sat in on the Thomas trial as an "alert and interested observer." Slip op. at 3. The EEOC appealed.
II
The threshold issue in this case is whether the EEOC was in privity with the twenty-two private plaintiffs in the Thomas action. If they were not, then plainly the EEOC cannot be bound by the judgment in that case no matter how identical the claims or similar the evidence may have been. Simply put, before the doctrines of either res judicata or collateral estoppel may be asserted against a party, it must be established that the party in the second action was either a party in the previous action or a privy of the party in that action. This principle is particularly important where the party in the second action is a governmental agency reposed with independent statutory power to enforce the law and having independent interests not shared by a private party.
In the case before us, we apply federal law, because "federal preclusion principles apply to prior federal decisions, whether previously decided in diversity or federal question jurisdiction." CSX Transp., Inc. v. Brotherhood of Maint. of Way Employees, 327 F.3d 1309, 1316 (11th Cir.2003). We have held that res judicata can be applied only if all of four factors are shown: "(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the

same parties or their privies; and (4) both cases must involve the same causes of action." In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.2001) (citing Israel Discount Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir.1992); In re Justice Oaks II, Ltd., 898 F.2d 1544, 1550 (11th Cir.1990)). Likewise, in this Circuit, collateral estoppel can apply only"when the parties are the same (or in privity) [and] if the party against whom the issue was decided had a full and fair opportunity to litigate the issue in the earlier proceeding." In re Southeast Banking Corp., 69 F.3d 1539, 1552 (11th Cir.1995) (citing Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); In re St. Laurent, 991 F.2d 672, 675 (11th Cir.1993)). If identity or privity of parties cannot be established, then there is no need to examine the other factors in determining whether res judicata or collateral estoppel applies. Thus, if there was no privity between the EEOC and the Thomas plaintiffs, summary judgment was improvidently granted and the district court's order must be reversed.
We review a district court's order granting summary judgment de novo. See Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296 (11th Cir.2000). A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We also review de novo a district court's determination of res judicata or collateral estoppel. See Jang v. United Techs. Corp, 206 F.3d 1147, 1149 (11th Cir.2000). However, whether a party is in privity with another for preclusion purposes is a question of fact that is reviewed for clear error. See Mesa Petroleum Co. v. 1286 Coniglio, 787 F.2d 1484, 1489-90 (11th Cir.1986) (citing *1286 Astron Indus. Assocs., Inc. v. Chrysler Motors Corp., 405 F.2d 958 (5th Cir.1968)).
This Circuit's preclusion standards reflect the longstanding and deep-rooted principle of American law that a party cannot be bound by a judgment in a prior suit in which it was neither a party nor in privity with a party. See Martin v. Wilks, 490 U.S. 755, 761-62, 109 S.Ct. 2180, 2184, 104 L.Ed.2d 835 (1989); Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552 (1979); Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 328-329, 91 S.Ct. 1434, 1442-1443, 28 L.Ed.2d 788 (1971); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S.Ct. 1562, 1569, 23 L.Ed.2d 129 (1969); Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940). As the Supreme Court has written, "[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings."(footnote omitted). Martin, 490 U.S. at 762, 109 S.Ct. at 2184. "This rule is part of our `deeprooted historic tradition that everyone should have his own day in court.'" Richards v. Jefferson County, Ala., 517 U.S. 793, 798, 116 S.Ct. 1761, 1766, 135 L.Ed.2d 76 (1996) (quoting 18 C. Wright et al., Federal Practice and Procedure § 4449, at 417 (1981)). Pemco does not, and cannot, deny that the EEOC was not a party in the Thomas action. Therefore, the EEOC can only be bound by the result in that case if it was in privity with the plaintiffs in that case.
"Privity" is a flexible legal term, comprising several different types of relationships and generally applying when a person, although not a party, has his interests adequately represented by someone with the same interests who is a party. Hansberry, 311 U.S. at 41-43, 61 S.Ct. at 117-19. Adequate representation can arise in a number of circumstances. For example, "a judgment that is binding on a guardian or trustee may also bind the ward or the beneficiaries of a trust." Richards, 517 U.S. at 798, 116 S.Ct. at 1766. The judgment in a class action may be binding on members of that class. Hansberry, 311 U.S. at 41-42, 61 S.Ct. at 117-118. Or, "where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate, legal proceedings may terminate preexisting rights if the scheme is otherwise consistent with due process." Martin, 490 U.S. at 762 n. 2, 109 S.Ct. at 2184 n. 2 (citing NLRB v. Bildisco & Bildisco, 465 U.S. 513, 529-530 n. 10, 104 S.Ct. 1188, 1198 n. 10, 79 L.Ed.2d 482 (1984); Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988)).
Obviously, none of these forms of privity are present in this case. As we see it, then, only two of the recognized types of privity are even remotely plausible here: the theory of "virtual representation," or "control" over the previous litigation. Although the district court never employed either of these terms in its order granting summary judgment, the relationship the district court and Pemco describe between the EEOC and the Thomas plaintiffs more closely resembles these two forms that privity may take. Other ways in which privity can be demonstrated 0907 class representatives or trustee/beneficiary, for example 0907 are obviously inapplicable. We therefore address the

two types of privity that form the core of Pemco's argument. Our review of the record, however, suggests that neither virtual representation nor control over the previous litigation can be found in this case.
A. Virtual Representation
1287 First, Pemco says that privity is present here because the Thomas plaintiffs' *1287 interests were so similar to those of the EEOC that they acted as the EEOC's virtual representatives. "Virtual representation" is a term of art that we have defined as applying "when the respective interests are closely aligned and the party to the prior litigation adequately represented those interests." Delta Air Lines, Inc. v. McCoy Rests., Inc., 708 F.2d 582, 587 (11th Cir.1983) (citing Southwest Airlines Co. v. Texas Int'l Airlines, Inc., 546 F.2d 84, 100 (5th Cir.1977)) (emphasis added).[3] The doctrine of virtual representation provides in essence that "a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative." Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 717 (5th Cir.1975).[4] Whether a party is a virtual representative of another is a question of fact. Mesa Petroleum, 787 F.2d at 1489-90(citing Astron Indus. Assocs., Inc. v. Chrysler Motors Corp., 405 F.2d 958 (5th Cir.1968).
We have employed four factors in determining whether there is virtual representation: whether there was "participation in the first litigation, apparent consent to be bound, apparent tactical maneuvering, [and] close relationships between the parties and nonparties." Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir.1988) (quoting 18 Wright & Miller, Federal Practice & Procedure § 4457, at 494-99) (alteration in original). All of these factors need not be found to meet the virtual representation standard, nor is it necessarily enough that one of them is found; rather, we examine them in concert to determine whether there is virtual representation.
As for the first factor, the EEOC "participated" in the first litigation only in the sense that it conducted discovery jointly, met with private plaintiffs' counsel, and attended (but did not and could not participate in) part of the trial. Specifically, the EEOC took part in discovery after the district court allowed joint discovery in both cases. EEOC representatives also participated in mediation with the plaintiffs when Pemco sought an overall resolution to both actions and refused to mediate in Thomas unless EEOC also agreed to participate in the mediation. The parties disagree over how much time an EEOC attorney spent sitting in the courtroom during the Thomas trial and how often they conferred with the Thomas plaintiffs' counsel. But, most notably, the EEOC was not a party and there is no indication that it took the lead in the litigation, was heard at all during the trial, or served in anything other than an advisory capacity to the plaintiffs. The EEOC's representatives did not sit at counsel's table, attend every day of the trial, examine any witnesses, proffer any evidence, or exert any control over the plaintiffs' decisions. 1288 Indeed, the EEOC had no power to decide *1288 which claims the plaintiffs could assert, nor could it or did it decide how to argue the Thomas case, nor did it have any authority to settle or refuse to settle that suit. Finally, the EEOC had no authority to decide whether any appeal should be taken from the adverse judgments in the Thomas case.
Overall, these factors do not warrant a finding of virtual representation. Indeed, this finding is altogether consonant with the result reached in South Central Bell Tel. Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999), where the Supreme Court found that privity did not exist even when the plaintiffs in the two cases shared the same lawyer. 526 U.S. at 168, 119 S.Ct. at 1185; see also Sec'y of Labor v. Fitzsimmons, 805 F.2d 682, 691-94 (7th Cir.1986) (en banc) (finding that there was no privity even though the Secretary of Labor had taken part in a joint discovery with the plaintiffs in the prior action; had intervened to object to the settlement in the private action; and the private litigants had statutorily been required to provide notice of their suit to the Secretary).
In the second place, the EEOC plainly did not "consent to be bound" by the judgment in the litigation in which in was not allowed to be a party. There is no indication anywhere in the record that the EEOC ever agreed to drop its case if the private plaintiffs lost their case against Pemco, or, for that matter, if the individual plaintiffs won.
The third factor is "tactical maneuvering," which has been described as "maneuvering to avoid preclusion." 18A Wright & Miller, Federal Practice & Procedure 2d § 4457, at 544-45 (2003). The EEOC did no such thing; indeed, it tried repeatedly to get into the earlier litigation, a move which, if successful, would obviously have barred it from

asserting the same or similar claims later. In fact, it has been suggested that for there to be a finding that tactical maneuvering occurred, "it is not enough that a nonparty deliberately resisted inclusion in the earlier litigation." Id. at 545 (citing Bogenholm v. House, 388 N.W.2d 402, 407 & n. 5 (Minn.App.1986)). So it would be truly anomalous to find tactical maneuvering when a party vigorously sought but was prevented from being included in the earlier litigation. Furthermore, "tactical maneuvering" by the opposing party to create preclusion may be a powerful indicator that virtual representation should not be found to exist. See id. (citing Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343 (2d Cir.1995)). Pemco arguably did just that, by trying to keep the EEOC as a party out of the original Thomas litigation and then pushing to preclude it from bringing its own suit.
The fourth factor, "close relationships between the parties and nonparties," has been described by a panel of the former Fifth Circuit as requiring "an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a subsequent suit raising identical issues." Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir.1978). In that case, the Court listed examples of such relationships as "estate beneficiaries bound by administrators, presidents and sole stockholders by their companies, parent corporations by their subsidiaries, and a trust beneficiary by the trustee." Id. at 1008-09 (quoting Southwest Airlines Co., 546 F.2d at 97). The Pollard Court's list of "close relationships" consists of legal relationships involving a significant degree of accountability or control by one party over the other. Plainly, the relationship between the EEOC and individual plaintiffs on whose behalf they act does not have any of these traits.
1289 So of the four factors that could establish virtual representation, three are clearly *1289 absent and one (participation in the original litigation) is only barely present. Thus, not surprisingly, we conclude that the Thomas plaintiffs were not the virtual representatives of the EEOC, a finding that is further supported by our holding in Dills v. City of Marietta, Ga., 674 F.2d 1377 (11th Cir.1982). In Dills, a panel of this Court refused to back away from what it described as Pollard's basic holding that "the doctrine of virtual representation require[s] an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a suit raising identical issues." Id. at 1379 (internal quotation marks omitted) (emphasis added). Thus, if the party to the prior litigation was not legally accountable to the party in the latter, then virtual representation cannot be present, regardless of any other factor. Applying this standard, it is clear enough that the EEOC and the original private plaintiffs had no such connection. The private plaintiffs who sued Pemco were in no way legally accountable to the EEOC, they were not under the EEOC's control, and the EEOC had no power to require them to do anything. In short, we think there is little question that the Thomas plaintiffs were not virtual representatives of the EEOC.
Other cases relied upon by Pemco are plainly different. In urging the trial court to find privity, Pemco cited the Eleventh Circuit's decision in NAACP v. Hunt, 891 F.2d 1555 (11th Cir.1990). In Hunt, a panel of this Court found that a challenge to the constitutionality of Alabama's practice of flying the Confederate flag on top of the state capitol was precluded by an adverse judgment in a similar suit brought thirteen years earlier. The original plaintiff and the later plaintiffs were both state legislators and members of the NAACP, and we found that the interests of the original plaintiff were "so closely aligned to the NAACP's interests in the original suit that he was their virtual representative." Id. at 1561.
There are several powerful differences between this case and Hunt, however. First, Hunt applied Alabama's law of preclusion rather than federal preclusion law. Id. at 1560. And federal privity principles, as detailed above, employ a discernibly higher standard than the Alabama law applied in Hunt. Moreover, the Supreme Court's postHunt decisions in Richards and South Central Bell both narrowed Alabama's preclusion law, reversing Alabama Supreme Court holdings that preclusion applied.
In addition, Hunt involved a general public law issue that affected the plaintiffs' private interests only indirectly, unlike the alleged racial harassment at Pemco. The Supreme Court has explicitly distinguished between such generalized public law challenges and more individualized cases, suggesting that there is less preclusion protection for a plaintiff who "complain[s] about an alleged misuse of public funds, or about other public action that has only an indirect impact on his interests." Richards, 517 U.S. at 803, 116 S.Ct. at 1768 (citations omitted). Indeed, the Supreme Court has suggested that in cases involving broad public interest matters, "we may assume that the States have wide latitude to establish procedures ... to limit the number of judicial proceedings that may be entertained," as opposed to suits in which individual interests are clearly and directly implicated. Id.[5]
1290

*1290 In short, we can find no support for the suggestion that the Thomas plaintiffs were "virtual representatives" of the EEOC in this case, and therefore conclude that it would have been clearly erroneous to impute privity to the parties on this basis.
B. Control
Analytically separate from a finding of virtual representation, the EEOC could still be found in privity with a private party if it effectively controlled the private party's litigation. However, in this case, such control is even less evident than virtual representation. In Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), the Supreme Court held that preclusion principles applied to the federal government, barring it from bringing suit against the state of Montana when a previous similar suit by a private contractor had been adjudicated on its merits. The Court found privity between the federal government and a private contractor when:
The Government has stipulated that it:
(1) required the [original] lawsuit to be filed;
(2) reviewed and approved the complaint;
(3) paid the attorneys' fees and costs;
(4) directed the appeal from State District Court to the Montana Supreme Court;
(5) appeared and submitted a brief as amicus in the Montana Supreme Court;
(6) directed the filing of a notice of appeal to this Court; and
(7) effectuated [the plaintiff]'s abandonment of that appeal on advice of the Solicitor General.
Id. at 155, 99 S.Ct. at 974. Under these peculiar circumstances, the Supreme Court found that the United States "plainly had a sufficient `laboring oar' in the conduct of the state-court litigation to actuate principles of estoppel." Id.
In this case, the EEOC did not control the Thomas proceedings. It could not and did not require the original lawsuit to be filed. It did not hire or pay the private plaintiffs' attorneys, fees, and costs, and the EEOC never directed the Thomas plaintiffs to file or abandon their suit or, for that matter, do anything else. Nor did the EEOC direct the filing of a notice of appeal to this Court, or otherwise require the Thomas plaintiffs to abandon their claims. In short, there is no comparison between the control the government exerted over the private litigation prior to the Montana case and the role the EEOC played in the Thomas action. As far as we can tell, no panel of this Court has ever before found privity between a governmental agency and private citizens due to the agency's control over the private citizens' suit. This case would not be a good place to start.
C. Independent Agency Authority
We add that it is particularly rare to find privity between a private party in one action and a party in a later action 1291 when the party in the later action is a *1291 governmental agency. It is a "well-established general principle that
the government is not bound by private litigation when the government's action seeks to enforce a federal statute that implicates both public and private interests." Herman v. South Carolina Nat'l Bank, 140 F.3d 1413, 1425 (11th Cir.1998). Indeed, if we were to hold that there was privity between the Thomas plaintiffs and the EEOC due to virtual representation or control, it would be the first time this Court has ever found this kind of privity between a governmental agency and the private plaintiffs in a prior action. As the Seventh Circuit has put it, "[t]he Government is not barred by the doctrine of res judicata from maintaining independent actions asking courts to enforce federal statutes implicating both public and private interests merely because independent private litigation has also been commenced or concluded." Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692 (7th Cir.1986)(en banc). Moreover, most Supreme Court cases addressing the subject have found that governmental

agencies were not bound by the final judgment in a private suit similar to the one they were bringing. See Hathorn v. Lovorn, 457 U.S. 255, 268 n. 23, 102 S.Ct. 2421, 2430 n. 23, 72 L.Ed.2d 824 (1982); City of Richmond v. United States, 422 U.S. 358, 373 n. 6, 95 S.Ct. 2296, 2305 n. 6, 45 L.Ed.2d 245 (1975); Sam Fox Publ'g Co., Inc. v. United States, 366 U.S. 683, 689-90, 81 S.Ct. 1309, 1313, 6 L.Ed.2d 604 (1961).
Quite simply, it is so unusual to find privity between a governmental agency and private plaintiffs because governmental agencies have statutory duties, responsibilities, and interests that are far broader than the discrete interests of a private party. In United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56 (5th Cir.1979), the former Fifth Circuit explained this principle in these terms:
[T]he district court's conclusion [that the private plaintiffs and the United States were identical] is directly contrary to the general principle of law that the United States will not be barred from independent litigation by the failure of a private plaintiff. This principle is based primarily upon the recognition that the United States has an interest in enforcing federal law that is independent of any claims of private citizens. In the present context the Supreme Court has characterized this as "the highest public interest in the due observance of all constitutional guarantees."
Id. at 58 (quoting United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)) (citations omitted). It is precisely this public interest function that distinguishes governmental agencies from private litigants, and the EEOC is certainly no exception to the principle that these agencies have responsibilities with a scope far beyond the legal interests of individual plaintiffs.
In fact, as the Supreme Court has observed about the statutory responsibilities of the EEOC:
Although the EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay or benefits denied, on behalf of discrimination victims, the agency is guided by "the overriding public interest in equal employment opportunity ... asserted through direct Federal enforcement." When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.
General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 1704, 64 L.Ed.2d 319 (quoting 118 Cong. Rec. 4941 (1972)) (footnote omitted).
1292 *1292 The EEOC has broad authority to enforce employment law as it sees fit, going beyond the rights of individual plaintiffs. As its authorizing statute says:
The Commission shall have power 0907
(1) to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individuals;
(2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States;
(3) to furnish to persons subject to this subchapter such technical assistance as they may request to further their compliance with this subchapter or an order issued thereunder;
(4) upon the request of (i) any employer, whose employees or some of them, or (ii) any labor organization, whose members or some of them, refuse or threaten to refuse to cooperate in effectuating the provisions of this subchapter, to assist in such effectuation by conciliation or such other remedial action as is provided by this subchapter;
(5) to make such technical studies as are appropriate to effectuate the purposes and policies of this subchapter and to make the results of such studies available to the public;

(6) to intervene in a civil action brought under section 2000e-5 of this title by an aggrieved party against a respondent other than a government, governmental agency or political subdivision.
42 U.S.C.A. § 2000e-4(g). All of these powers extend far beyond the authority given to individual aggrieved plaintiffs. The enforcement provision of the Equal Employment Opportunities subchapter of the Federal Code says that "[t]he Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice." Id. § 2000e-5(a) (emphasis added). If conciliation efforts between an employer and employees fail, the EEOC may also seek classwide relief without being certified as a class representative under Fed. R. Civ. Pro. 23. See id. § 2000e-5(f)(1); Gen. Tel. Co., 446 U.S. at 320, 100 S.Ct. at 1701; see also id. § 2000e-5(b)-(g) (detailing the EEOC's enforcement powers and the types of relief it may obtain pursuant to its statutory authority). Or, as the Seventh Circuit has put it, "[t]he EEOC's primary role is that of a law enforcement agency and it is merely a detail that it pays over any monetary relief obtained to the victims of the defendant's violation rather than pocketing the money itself and putting them to the bother of suing separately." In re Bemis Co., Inc., 279 F.3d 419, 421 (7th Cir.2002). In this case, the EEOC has convincingly established that its enforcement role is incompatible with a finding that its authority to bring an enforcement action is barred by a judgment in a private suit.
We add that the courts have concluded that the EEOC may proceed with an enforcement action even where the charging party's action has been resolved. Recently, in EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002), the Supreme Court held that the charging party's agreement to arbitrate claims did not limit the EEOC's authority to bring suit, although it was still "an open question whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of relief the EEOC may seek." Id. at 297, 122 S.Ct. at 766. In addition, the former Fifth Circuit has held that "after the termination of a charging party's private suit the EEOC can bring suit predicated on, but not limited to, the same charge." EEOC v. Huttig Sash & 1293 Door Co., 511 F.2d 453, 454 (5th Cir.1975). In that case, *1293 the previous suit had been voluntarily dismissed with prejudice. Id.
Still other courts have reached similar results, rejecting preclusion of EEOC suits because of prior private actions against the same defendants. See New Orleans Steamship Ass'n v. EEOC, 680 F.2d 23, 25 (5th Cir.1982) ("[T]he EEOC may challenge a transaction which was the subject of prior judicial scrutiny in a private suit, if the subsequent challenge seeks different relief."); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361-62 (6th Cir.1975) (holding that the EEOC was not privy to a private settlement); see also EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th Cir.1993) (holding that there was no privity between a single plaintiff and the EEOC acting solely on his behalf insofar as the relief the EEOC sought was not individual damages and reinstatement but rather an injunction against further violation); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542-43 (9th Cir.1987) (same).
If the EEOC may pursue action on behalf of a sole person whose private suit has been resolved, then it would be truly anomalous to hold that the EEOC could be barred from bringing action here, when it is acting on behalf of many people who were not parties at all in the previous action. The opposite is equally true; resolution of an EEOC case does not necessarily bar private suit from the person on whose behalf the EEOC originally acted. Even when the EEOC's sole basis for suit is the allegations of one individual, final judgment on that claim does not bar her from suing privately in this Circuit. In Riddle v. Cerro Wire and Cable Group, Inc., 902 F.2d 918 (11th Cir.1990), an employee was unsatisfied with a consent degree agreed upon by the EEOC, acting on her behalf, and her employer. She thus filed her own Title VII suit, and her employer argued that res judicata barred her action. The district court agreed and granted summary judgment, but a panel of this Circuit reversed, finding that there was no privity. Id. at 922-23. We reached this result even though "the EEOC's suit against Cerro was based solely on Riddle's charge of discrimination; it did not involve a class of employees or an allegation of pattern and practice discrimination," and the consent decree "specifically provided personal relief for Riddle." Id. at 922.
Again, the Court articulated how the interests of the individual plaintiff and the EEOC differ:
The EEOC is primarily interested in securing equal employment opportunity in the workplace. That interest is often most completely advanced through conciliation agreements or consent decrees of the kind involved in this case, where the employer agrees to take broad remedial steps to

eradicate discrimination. The aggrieved individual, on the other hand, is primarily interested in securing specific personal relief of the kind Riddle is seeking in her private action against Cerro.
Id. at 922-23. Although the suits against Pemco also differ insofar as the private suit came first, that fact makes the case for a finding of privity even weaker. After all, since the EEOC is capable of seeking broader relief than an individual plaintiff may achieve, if there is no privity when the narrower suit follows the broader claim, it makes no sense for there to be privity when the broader suit comes later. In addition to the EEOC's own broad mandate, there are also 165 or more African-American employees of Pemco who did not participate in the original suit (though they might have been covered by it had the plaintiffs not dropped their class action due to Pemco's opposition).
1294 *1294 Urging us not to follow the precedents working against it, Pemco argues that this is a case of first impression because the private suit was ended with a jury verdict, while most of the other relevant previous cases involving the EEOC were settled or arbitrated. Pemco points particularly to Huttig Sash, which was voluntarily dismissed, and in which the court, in denying privity, warned that "an employer might seek to settle a particular individual's grievance in order to prevent the EEOC from bringing suit on other discriminatory practices discovered in investigating the original charge." Huttig Sash, 511 F.2d at 455. Pemco appeals to this concern to highlight the fact that it may be less of a worry when the prior action is resolved by a jury verdict rather than by mutually agreed-upon settlement. However, a similar danger exists even when the prior action is fully contested to a jury verdict, because the private plaintiffs might have fewer resources, less experienced or able attorneys, or weaker legal claims than does the EEOC.
As this review of the case law makes abundantly clear, the overwhelming weight of precedent in this Circuit and elsewhere weighs heavily against finding privity between the EEOC and the private plaintiffs. The EEOC's comprehensive mandate and authority to petition for broad injunctive and pecuniary relief stands in stark contrast to the interests of individual plaintiffs in employment actions.
Finally, our holding is particularly warranted in light of the equities of this case, which weigh strongly against a finding of privity. As Justice Stone put it, "[i]t is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940) (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877)). Pemco did its best to keep the EEOC out of the original litigation, objecting strenuously that allowing it in as a party would create an unduly burdensome trial and "powerfully" prejudice the defendant. Now Pemco is trying to bind the EEOC to the adverse result in the suit that it successfully kept the EEOC from participating in. That result would, we think, set a grossly inequitable precedent: it would open the door for defendants to seek to keep the EEOC out of private litigation, and then try to preclude the EEOC 0907 which may have more resources and effective legal representation, and therefore a better chance of winning at trial, than private plaintiffs do 0907 from suing on its own. Allowing the resolution of a private suit to bar a federal agency's separate action "would impose an onerous and extensive burden upon the United States to monitor private litigation in order to ensure that possible mishandling of a claim by a private plaintiff could be corrected by intervention." East Baton Rouge Parish Sch. Bd., 594 F.2d at 58 (footnote omitted). This could severely curtail the enforcement powers of the EEOC and other governmental agencies by allowing the dismissal of their cases due to the result of litigation over which they have no control. In this case the result we reach is not difficult because we can find neither the indicia of "virtual representation" nor those of "control."
In short, we are persuaded that the district court clearly erred in finding privity between the EEOC and the Thomas plaintiffs. Moreover, it seems to us wholly inequitable to hold the EEOC bound by the result in a case 1295 that it was not allowed to take part in. Because there is no privity between the parties, we need not and do *1295 not examine the other factors necessary to find res judicata or collateral estoppel. The district court, in entering judgment against the EEOC, noted wryly that "[a]fter a sufficient number of battles, even the Hatfields and McCoys put down their guns." Slip op. at 7. In this case, however, the district court erroneously prevented the McCoys from picking up their guns in the first place.
REVERSED and REMANDED.

[*] Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of Louisiana, sitting by designation.
[1] By this point, several of the original plaintiffs' claims had been dismissed on procedural grounds.
[2] According to the district court's order, the EEOC's attorney sat, "with some frequency, in the audience as an alert and interested observer." EEOC v. Pemco Aeroplex, Inc., No. 00-AR-2762-S, slip. op. at 3.
[3] Technically, the Delta panel was not entirely clear whether this was its specific definition of "virtual representation," or whether it was denoting characteristics that applied for a number of concepts of preclusion, of which virtual representation was only one. See Delta, 708 F.2d at 587 ("Under res judicata doctrines such as `virtual representation,' a litigant may be precluded from litigating an issue based on a prior lawsuit in which, although he was not a party, his interests were represented by a party. This principle applies, however, only when the respective interests are closely aligned and the party to the prior litigation adequately represented those interests." (citation omitted)). However, a later decision in this Circuit quoted this language as specifically defining virtual representation. Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir.1988).
[4] The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
[5] Pemco's argument that the EEOC's interests were adequately represented by the private litigants also relies on Petit v. City of Chicago, No. 90-C-4984, 1999 WL 66539 (N.D.Ill., Feb.8, 1999), an unreported case in which a district court found that a suit challenging a city's sergeant qualifying exam as racially discriminatory was estopped because of a previous suit bringing the same claim. Id. at *8. The court noted that there was privity because "[a]lthough not all the plaintiffs were parties to [the previous case], 19 of the present plaintiffs were plaintiffs in [that case], the same attorney represents the plaintiffs in both cases, and the prior history of consolidated discovery means that the available evidence regarding past discrimination is the same for both cases." Id. at *5. This was purely dicta, however, because the plaintiffs had made no privity argument and therefore waived that legal issue. Id. Moreover, the Thomas plaintiffs used non-EEOC lawyers; the EEOC's interests and legal responsibilities are wholly distinct from those of the private plaintiffs; and there is no indication that any of the Petit plaintiffs had tried and failed to join the earlier suit against the city, as the EEOC tried to consolidate its action with the private action against Pemco.
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 Pemco Aeroplex, Inc. v. E.E.O.C., 546 U.S. 811 (2005)
126 S.Ct. 42 Supreme Court of the United States PEMCO AEROPLEX, INC., petitioner,
v. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION. No. 04-1292. | Oct. 3, 2005.
Case below, 383 F.3d 1280.
Opinion

Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.
THE CHIEF JUSTICE took no part in the consideration or decision of this petition.
Parallel Citations 126 S.Ct. 42 (Mem), 96 Fair Empl.Prac.Cas. (BNA) 896, 163 L.Ed.2d 44, 73 USLW 3595, 74 USLW 3201, 74 USLW 3184
	  

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