I admit it. I have a crush on Justice Thomas. Today’s unanimous Supreme Court opinion in CRST Van Expedited, Inc. v. EEOC – holding that a merit-based dismissal is not necessary for a defendant to qualify as the “prevailing party” in a Title VII case – would make any employment defense lawyer’s heart skip a beat.
But the majority opinion is not what caused me to swoon. Justice Thomas’ badass (am I allowed to use the word “badass” when talking about a SCOTUS Justice?) concurring opinion, with its pointed reminder he’s been right all along, made me fall head over heels. Here is his opinion, in its entirety. Because it’s that good, that efficient, and as Matthew McConaughey would say, it’s “all right, all right, all right”:
Under Title VII of the Civil Rights Act of 1964, a district court may award attorney’s fees to “the prevailing party.” 42 U. S. C. §2000e–5(k). In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), this Court concluded that a prevailing plaintiff “ordinarily is to be awarded attorney’s fees in all but special circumstances,” but a prevailing defendant is to be awarded fees only “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Id., at 417, 421. That holding “mistakenly cast aside the statutory language” in interpreting the phrase “prevailing party.” Fogerty v. Fantasy, Inc., 510 U. S. 517, 538 (1994) (THOMAS, J., concurring in judgment) (internal quotation marks omitted). In this case, the Court of Appeals compounded Christiansburg’s error by requiring a district court to make yet another finding before a Title VII defendant may be considered a “prevailing party”: The defendant must also obtain a “ruling on the merits.” 774 F. 3d 1169, 1181 (2014). Today, the Court correctly vacates that ruling and holds that “a favorable ruling on the merits is not a necessary predicate to find that a defendant has prevailed.” Ante, at 1. I therefore join the Court’s opinion in full. Nevertheless, I continue to adhere to my view that Christiansburg is a “dubious precedent” that I will “decline to extend” any further. Fogerty, supra, at 539 (opinion of THOMAS, J.).
Right?!? Did your knees get weak? Did your heart skip a beat? Wait . . . am I the only one?
OK, I admit it. I’m kind of obsessed with all the issues involved in this case. It’s a problem. And in my employment-law-is-all-I-ever-think-about world, this case involves a hot issue. For those of you who did not prioritize your day’s activities around reading and re-reading the Supreme Court’s CRST opinion, let me give you the highlights.
A female employee of a trucking company that uses shared driving duties on a single truck filed an EEOC charge alleging she was subjected to unwanted sexual comments and contact while she was training with a male employee. The EEOC’s receipt of the charge triggered its “detailed, multi-step procedure through which the [EEOC] enforces the statute’s prohibition on employment discrimination.” Mach Mining (another fave of mine). The EEOC’s procedure was supposed to go like this:
- The EEOC informs the employer about the charge, including details about the specific allegations made.
- The EEOC investigates the allegations.
- The EEOC determines, after the investigation, whether there is reasonable cause to believe the allegations and either dismisses the charge or moves to the next step in the process.
- If reasonable cause is found by the EEOC, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” (The “conference” and “persuasion” parts of this sentence are routinely ignored, but that’s a topic for another day.)
- Only if the EEOC’s attempt at “conference, conciliation and persuasion” fails may it file a lawsuit in its own name on behalf of the “aggrieved” individual(s).
The facts in the CRST case indicate that during the investigation (step 2, above), the EEOC discovered four other women filed charges against CRST. This prompted the EEOC to request additional information from CRST, including “detailed” contact information for CRST’s dispatchers and female drivers. More than a year and a half after the original charge was filed, the EEOC sent CRST a determination letter (step 3, above) advising that it had reasonable cause to believe CRST subjected the charging party and “a class of employees and prospective employees to sexual harassment.” It does not appear the EEOC identified the “class” by number or name. The EEOC also offered to conciliate. (Note there is no mention of conferring or persuading as required in step 4, above. Grrrr.) The parties were unable to reach an agreement, and the EEOC notified CRST that conciliation efforts had failed.
Shortly thereafter, the EEOC filed a lawsuit, in its own name, on behalf of the charging party and “[o]ther similarly situated . . . employees of CRST . . . for sexual harassment and a sexually hostile and offensive work environment” in violation of Title VII. During discovery, the EEOC “identified over 250 allegedly aggrieved women – far more than the [EEOC] had forecast.”
Through a series of motions, the district court dismissed all the claims. Nearly 100 were dismissed after the EEOC failed to produce the women for depositions. All but 67 were dismissed for a variety of reasons including 1) expiration of the statute of limitations; 2) judicial estoppel; 3) failure to report the alleged harassment in a timely manner; 4) CRST’s prompt and effective response to reports of harassment; and 5) lack of severity or pervasiveness of the alleged harassment. To add insult to the EEOC’s injury, the district court barred the EEOC from seeking relief for the remaining 67 women, holding the EEOC did not satisfy its pre-suit requirements because it “wholly abandoned its statutory duties” to investigate, (confer, persuade) and conciliate. Ouch.
After dismissing all the claims, the court held that CRST was the “prevailing party” and invited the company to apply for attorney’s fees under Title VII’s fee-shifting provisions, referenced by my boyfriend’s Justice Thomas’ quote above. CRST jumped at the invitation and awarded a whopping $4 million in attorney’s fees! Double ouch! Not surprisingly, the EEOC appealed.
Two appeals and a remand later, the U.S. Court of Appeals for the Eighth Circuit had reversed the district court’s finding that CRST was the “prevailing party” because during one of the appeals, two of the dismissed claims were revived. The Eighth Circuit held that the revival of the two claims meant CRST no longer “prevailed” because the EEOC still had “live” claims – even if only two. The Eighth Circuit also held that CRST was not the “prevailing party” for purposes of attorney’s fees because Circuit precedent required a ruling on the merits of a claim before a defendant can be considered a “prevailing party,” and many of the claims were dismissed for reasons unrelated to the merits. The district court was then ordered to undertake a “proper, particularized inquiry on remand.”
The Supreme Court’s Opinion
The SCOTUS granted certiorari because the Eighth Circuit holding was in conflict with decisions in at least three other circuits. (Interestingly, by the time the case got to the Supreme Court, the two remaining claims were extinguished: one was settled and the other was withdrawn by the EEOC.) Much like the Mach Mining case, the Court needed to resolve the split in the circuits.
In a 16-page opinion, the Court held that “a defendant need not obtain a favorable judgment on the merits in order to be a ‘prevailing party.’” The majority opinion of the Court did not, however, address the issue that drives prevailing defendants nuts – the different and heightened standard applied by courts when determining whether to award attorneys’ fees when the defendant wins. The extra hurdle requires a prevailing defendant to prove the plaintiff’s action was “frivolous, unreasonable, or without foundation.” This standard is not included in the plain language of Title VII and is not applied to plaintiffs.
Which brings us full circle — back to Justice Thomas’ one-page concurring opinion that supports the majority, but reminds us that sometimes even the Supreme Court misses the mark. I know, I know. The CRST opinion was a huge victory for employers. But, that doesn’t mean we give up the good fight.
Here’s hoping the other members of the Court are listening and soon take action to level the playing field for prevailing employers of the future.
Rock on, Justice Thomas. Rock. On.
P.S. J.T., I love you.