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Tyson doesn’t change Teamsters framework, nor require EEOC to show claimants were similarly situated

By Joy P. Waltemath, J.D.

The U.S. Supreme Court’s decision in Tyson v. Bouaphakeo did not change the Teamsters framework for the EEOC to prove class or pattern or practice discrimination claims under Title VII Sections 706 and 707, a federal district court in Texas ruled, denying Bass Pro’s motion for judgment on the pleadings or for a change in the case management of the litigation. Specifically, Tyson did not involve statistical evidence, nor did it require that the EEOC prove individuals for which it was seeking relief be similarly situated (EEOC v. Bass Pro Outdoor World, LLC, December 28, 2016, Ellison, K.).

The EEOC brought an enforcement action in 2011 alleging a pattern or practice of race discrimination against Black and Hispanic employees in Bass Pro stores nationwide. Importantly, the commission brought Title VII claims under both Sec. 706 (aggrieved individuals challenging unlawful employment practices on an individual or classwide basis) and Sec. 707 (alleging a pattern or practice of systemic discrimination challenging widespread bias throughout a company on a group basis). In July 2014, the district court ruled that the EEOC may use the Teamsters framework to prove its claims under Sec. 706, although historically, the Teamsters model has been applied to Sec. 707 claims, under which damages are not recoverable. In late 2014, that order was certified for interlocutory appeal since it was a legal question presenting substantial grounds for disagreement, and Bass Pro accordingly appealed.

What is the Teamsters framework? Teamsters established a two-stage framework for Title VII claims alleging a pattern or practice of discrimination. Teamsters Stage 1 requires a plaintiff to establish a prima facie case by a preponderance of the evidence showing that discrimination was a “standard operating procedure, the regular rather than the unusual practice.” This can be accomplished by statistical and anecdotal evidence. If the plaintiff establishes a prima facie case, then the burden shifts to the employer to demonstrate that the plaintiff’s proof is either inaccurate or insignificant, and if the employer cannot do so, then the plaintiff is entitled to prospective relief.

If the plaintiff seeks individual relief for victims of the discriminatory practice, the case proceeds to Teamsters Stage 2, where individuals seeking relief are entitled to a presumption that “any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of [the discriminatory] policy.” The plaintiff “need only show that an alleged individual discriminatee unsuccessfully applied for a job,” and it is the employer’s burden to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.

Impact of Tyson v. Bouaphakeo. The U.S. Supreme Court decided Tyson while Bass Pro’s appeal to the Fifth Circuit was pending. Bass Pro then informed the appeals court of the Tyson decision and argued the impact of Tyson on this case. However, the Fifth Circuit then affirmed the district court’s order allowing the EEOC to proceed under both Sec. 706 and Sec. 707. It rejected Bass Pro’s argument that pattern or practice claims under Title VII may be brought only under Section 707. Notably, the Fifth Circuit opinion did not mention Tyson. (Bass Pro petitioned for rehearing en banc, and that petition remains pending.)

Tyson was a wage hour class action involving donning and doffing time. Because the employer failed to record the time employees spent donning and doffing protective gear, the Supreme Court allowed the plaintiffs to use “representative evidence,” including employee testimony, video recordings of donning and doffing, and a report performed by an industrial relations expert estimating donning and doffing time. The Tyson Court said the evidentiary question was “whether the sample at issue could have been used to establish liability in an individual action.” The Court reasoned that the case differed from Wal-Mart Stores, Inc. v. Dukes because the Wal-Mart employees were not similarly situated to one another, so “none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers.” However, the Tyson plaintiffs “worked in the same facility, did similar work, and [were] paid under the same policy.”

Similarly situated argument. Apparently seizing on this language in Tyson, Bass Pro contended in arguments to the district court here that a Title VII pattern or practice claim cannot survive unless the employees are similarly situated. Bass Pro argued that the employees in this case were not similarly situated, citing variations in location and job title, and so the EEOC should be barred from proceeding with this claim.

In essence, Bass Pro’s “similarly situated” argument was that statistical and anecdotal evidence is necessarily the sort of “representative” evidence with which Tyson was concerned, meaning that the statistical and anecdotal evidence typically used in Teamsters Stage 1 is subject to the Tyson rule: It may only be used if it could have been used in an individual Title VII case. Plus, that statistical and anecdotal evidence can only be used in an individual action if the claimants are similarly situated, a proposition for which Bass Pro cited several Fifth Circuit cases. Putting those two arguments together, Bass Pro contended that Teamsters Stage 1 evidence (which is necessarily representative) could only be presented if the claimants are similarly situated (such that the evidence would be admissible in an individual Title VII action, thus satisfying Tyson). Here, the employees were not similarly situated, Bass Pro argued, so the EEOC may not present its statistical and anecdotal evidence and, voila, cannot survive Teamsters Stage 1.

Tyson does not apply to Teamsters Stage 1 evidence. But the district court did not agree that the representative evidence rule in Tyson applied to Teamsters Stage 1 evidence (statistics and anecdotes used to establish a prima facie case of discrimination). Both Tyson and Wal-Mart plaintiffs sought to use representative evidence to justify class treatment, and it made sense to restrict representative evidence if it would not be admissible in an individual employment action because allowing representative evidence would enlarge the substantive rights of class members beyond those they would have had if each had brought a claim on an individual basis.

But the EEOC is different; it is a government enforcement agency with a mandate to “advance the public interest in preventing and remedying employment discrimination,” not just to act as “a proxy for the victims of discrimination.” Nor is the EEOC required to prove that its alleged discriminates are “similarly situated,” the court pointed out in a footnote, and since the agency has statutory authority to pursue “large-scale pattern or practice” claims, it does not make sense to require that any evidence the EEOC uses be admissible in an individual employment discrimination case.

Additionally, the Tyson Court focused not on the Wal-Mart plaintiffs’ use of statistical and anecdotal evidence (analogous to the EEOC’s Teamsters Stage 1 evidence here), but rather on their proposal to replace Teamsters Stage 2 with a “Trial by Formula.” The “representative evidence” in Wal-Mart (overall liability rates and backpay amounts based on a subset of the class) bore no resemblance to the EEOC’s proposal to use statistical evidence and anecdotes to establish a prima facie case of discrimination at Teamsters Stage 1. Because the rule announced in Tyson does not apply to Teamsters Stage 1 evidence, the EEOC was not required here to show that its statistical and anecdotal evidence could be used in an individual action.

Fifth Circuit rule about similarly situated employees does not apply to statistical evidence. In any event, said the district court, the EEOC’s statistical evidence satisfies Tyson, and the Fifth Circuit has repeatedly held that statistical evidence is admissible in individual Title VII cases. Even if Bass Pro were correct that Tyson applied here, and even if the EEOC’s anecdotal evidence was inadmissible as a result, the EEOC could still use its statistical evidence at Teamsters Stage 1, thus meeting its Teamsters Stage 1 burden.

No similarly situated requirement. Bass Pro implicitly argued that Tyson added a requirement to Teamsters Stage 1—that the alleged discriminatees must be similarly situated. The district found it highly unlikely that the Supreme Court intended to alter the Teamsters framework, “upsetting nearly 40 years of pattern or practice discrimination law,” without referencing either Teamsters or Title VII. Plus, adding a similarly situated requirement would import into EEOC enforcement actions those requirements typically associated with Rule 23 class actions, yet the Supreme Court has made it clear that Rule 23 does not apply to EEOC enforcement actions. Accordingly, Tyson should not be interpreted to require that discriminatees in a pattern or practice case following the Teamsters framework be similarly situated, the court concluded.