Our loyal readers know that we have been monitoring closely the proceedings in the EEOC’s appeal of the largest fee sanction award against the agency in its history — the $4.7 million awarded by the district court in the sexual harassment case entitled EEOC v. CRST Van Expedited, Inc., No.13-3159 (8th Circuit). You can read about the award and our take on the EEOC’s opening brief in the appeal here.

In essence, the district court awarded fees to CRST because it found the EEOC should not have brought the case in the first place. It found the EEOC’s conduct to be frivolous, unreasonable or groundless. Specifically, the district court found that the Commission failed to exhaust Title VII’s administrative prerequisites before filing suit, and also that its pattern or practice claim was unreasonable since it was based only on anecdotal evidence.

This past week, the EEOC filed its reply brief in the Eighth Circuit in support of its effort to overturn the fee award on the ground that CRST is not the prevailing party, even though the EEOC lost its pattern or practice case and 153 of 154 individual claimants’ cases, and the remaining individual’s case settled for $50,000. The EEOC’s hefty brief – which comes in at 45 pages — takes on CRST’s opposition brief point-by-technical-point, but ultimately turns on one overarching issue:  whether the EEOC should be considered the prevailing party because all of its claims and claimants must be understood as one claim because they are allegedly unified by common failures of CRST’s HR policies and procedures, or whether CRST prevailed by defeating multiple individual claims, and even under EEOC’s theory, “virtually 99.9%” of the case, in the district court. See Br. at 14. 

Among the most pertinent points the EEOC argues in reply is that CRST ignores controlling Supreme Court precedent cited in the EEOC’s opening brief on the standard for a prevailing civil rights plaintiff (Farrar v. Hobby, 506 U.S. 103 (1992)) and why EEOC supposedly meets that standard. Br. at 4. It also contends that the dismissal of the pattern or practice case is irrelevant to whether it is the prevailing party, because it can and did sue on behalf of individuals under its section 706 authority to represent aggrieved individuals. Br. at 4-6. And it argues that the finding that EEOC failed its pre-suit conciliation obligations is not a finding on the merits that would make CRST the prevailing party. Br. at 14-17. 

The stakes for the EEOC of course are high given the dollar figure at issue. So if the Eighth Circuit affirms the award, one can be quite sure that a hard look at the appellate decision will be forthcoming from decision makers at the highest levels of the EEOC. Watch this blog space for further developments.