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Citing EEOC’s unique role in advancing the public interest, court backtracks on its earlier decisions and allows agency to file amended complaint alleging class disability bias claims

January 18th, 2013  |  Cynthia L. Hackerott

Largely due to the unique enforcement role played by the EEOC, a federal district court in Illinois ruled that it should not have dismissed the EEOC’s amended complaint alleging class claims that UPS violated the ADA via an inflexible leave policy that did not provide for reasonable accommodations (EEOC  v United Parcel Serv, Inc, NDIll, January 11, 2013). The EEOC was not required to plead detailed factual allegations supporting the individual claims of every potential member of a class, the court decided upon reconsideration. Moreover, the court granted the agency leave to file a second amended complaint with an additional allegation that the leave policy operated as a “qualification standard, employment test or other selection criteria” that screens out or tends to screen out a class of individuals with a disability and is not job-related or consistent with business necessity.

Previous complaints. After the court dismissed the EEOC’s initial complaint, the agency filed a first amended complaint on behalf of two named employees and other, unidentified class members. The first amended complaint alleged that UPS maintains an inflexible 12-month leave policy which does not provide for reasonable accommodation of qualified individuals with disabilities and which instead provides for termination of their employment, and then provided detailed factual allegations as to how the policy affected the two named employees, and alleged that the same policy was applied across the board to other employees. The court granted UPS’s motion to dismiss the first amended complaint, concluding that it did not allege any specific facts regarding what the unidentified class members’ disabilities are, the conditions of their termination or leave, or what accommodations would have been suitable for them to return to work.

Undeterred, the EEOC then sought leave to file a second amended complaint. Although the proposed second amended complaint did not contain additional factual allegations with regard to any unidentified class member, the EEOC asserted that the proposed complaint clarified that in addition to the two named employees, the agency sought relief for additional qualified individuals with disabilities who would be identified via discovery, each of whom was a qualified individual with a disability who was terminated by UPS pursuant to its inflexible application of the same blanket 12-month leave policy. The EEOC underscored this position by adding to the proposed second amended complaint an allegation that the leave policy violated Sec. 102(b)(6) of the ADA, by operating as a “‘qualification standard, employment test or other selection criteria’ that screens out or tends to screen out a class of individuals with a disability and is not job-related or consistent with business necessity.” Yet, the court denied the EEOC’s motion for leave to amend as futile, noting the EEOC’s concession that the second amended complaint did not supplement the factual allegations of the earlier complaints and concluded that the dearth of factual allegations as to the unidentified class members doomed the new Sec. 102(b)(6) claims as well.

Reconsideration. In response, the EEOC asked the court to certify for appeal the question of whether Rule 8 of the Federal Rules of Civil Procedure “requires the EEOC, when seeking relief on behalf of unidentified qualified individuals with a disability, to plead facts specific to each individual demonstrating that each such individual is a qualified individual with a disability.” Instead of addressing the EEOC’s appeal request, the court, on its own motion, reconsidered its decision on the motion to dismiss and its denial of the EEOC’s motion for leave to file a second amended complaint.

Dismissal. Upon reconsideration, the court adopted a different view. It concluded that the first amended compliant satisfied the pleading standards required by the US Supreme Court’s rulings in Bell Atlantic Corp v Twombly, Ashcroft v Iqbal, and their progeny , and thus, should not have been dismissed. The allegations regarding the two named employees were sufficient to satisfy the requirements of FRCP 8(a) and provide UPS with fair notice of the claims against it and the grounds upon which they rest.

The more difficult question was whether the factual allegations in the first amended complaint were sufficient to raise the possibility of relief above the “speculative level” for the unidentified class members. Although the EEOC is subject to the federal pleading rules when acting its capacity of advancing the public interest, the unique role of the EEOC is such that courts generally have allowed complaints with “class” allegations comparable to those asserted here to move forward, both pre- and post- Twombly and Iqbal. A recent example was a 2012 decision by a district court in the Western District of Pennsylvania in an EEOC action challenging a company-wide alcohol testing policy under the ADA; there, the court held that EEOC was not required to name, or plead detailed facts specific to, the unidentified individuals in the purported class (EEOC v. U.S. Steel Corp). Other courts have reached similar conclusions when evaluating the sufficiency of complaints brought by EEOC on behalf of large groups of aggrieved individuals.

Like the complaint deemed plausible in EEOC v 5042 Holdings Ltd. (WVa, January, 11, 2010), the EEOC’s complaint in present case identifies the statutes that UPS allegedly violated; the time frame in which the alleged violations occurred; the names of two presently identified victims; a general description of the class of aggrieved persons; the specific claims alleged and their elements as to the charging party and the class of aggrieved persons; the types of conduct to which the named claimants and the unidentified class were subjected; and the remedies being sought. Neither Iqbal nor Twombly require plaintiffs, including the EEOC, to plead detailed factual allegations supporting the individual claims of every potential member of a class. Rather, the EEOC only had to plead sufficient factual content to allow the court to draw the reasonable inference that UPS violated provisions of the ADA as to the unidentified individuals, which is what the EEOC did here. Whether others allegedly subjected to the policy were in fact “qualified individuals” who could have performed their job duties with or without reasonable accommodation was a question on the merits to be addressed at a later stage of the litigation.

Still, the court stated that the “EEOC’s ready admission that it made little if any effort to evaluate the extent to which other individuals may have potentially meritorious allegations of disability prior to filing suit” continued to give the court “some pause” given the EEOC’s duty to investigate and conciliate claims before filing a lawsuit. The Seventh Circuit, however, has clarified (in EEOC v Caterpillar, Inc, 2005) that courts have no business limiting an EEOC suit to claims that the court finds to be supported by the evidence obtained in the agency’s investigation. Accordingly, while the court remained cognizant of UPS’s concerns about “fishing expeditions” and unduly burdensome discovery costs, it had to defer to the EEOC’s investigatory judgment at this early stage of the case.

Leave to amend.  In light of its decision as to the adequacy of the EEOC’s claims, the court also found that the agency should be granted leave to file the second amended complaint to clarify its allegations and assert the additional Sec. 102(b)(6) 106 claim. Though it has been pending for quite some time, this case is still in its initial stages. No discovery has taken place, and there is no indication that UPS will be unduly prejudiced by the addition of a new, related claim at this time, the court reasoned. Accordingly, the court directed UPS to answer or otherwise respond to the second amended complaint within 21 days the court’s order. In addition, the court referred the case to a federal magistrate judge for discovery supervision and, if requested, a settlement conference. 

EEOC statement. “Judge Dow’s decision probably marks the end of an already faltering trend in the defense of employment discrimination cases,” said John Hendrickson, the EEOC’s regional attorney in Chicago, in a January 15, 2013 statement. “Based on a couple of questionable decisions, some defense attorneys have been arguing that the EEOC cannot seek relief for victims of bias in class cases unless each of those victims has previously been identified during the EEOC administrative process and before a lawsuit was filed.  Although those decisions have been repeatedly ignored by the courts, they continue to attract a small following and to crop up in criticism of EEOC. Thanks to Judge Dow’s United Parcel Service decision, those days are about over.”