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I have written before about cases where the EEOC seems to overreach in attempting to garner publicity — seemingly regardless of the merits of the underlying claim. I am certainly not the first to make this observation, but now the 11th U.S. Circuit Court of Appeals has joined the chorus. In EEOC v. Asplundh Tree Expert Co., F.3d (11th Cir. 2003), the court issued a sharp rebuke to the commission, essentially accusing it of rushing to close its case for publicity. The court further accused the EEOC’s Miami office of misrepresenting the facts of the case to the New York Times. This rush to closure led the court to affirm the district court’s dismissal of the underlying claim. HARASSMENT ALLEGATIONS In 1993, Gainesville Regional Utilities, in Gainesville, Fla., hired Asplundh Tree Expert Company to dig ditches and lay underground cable. Robert Lewis was hired by Asplundh a few years later to work as part of a 3-man crew performing the work. In April, 1996, Pete Evans, an employee of Gainesville Utilities, visited Lewis’s worksite. Lewis claimed that on this one occasion, Evans made offensive racial jokes and went so far as to make a noose and place it on Lewis’ neck. Lewis complained to his supervisor later that day and a meeting was held, at which time Evans apologized for any offensive conduct. This was the one and only time that Evans was even accused of harassing Lewis. The utility began reducing its assignments to Asplundh in May, 1996 and Lewis was part of a wave of layoffs that ultimately reduced the Asplundh crews to zero by October of that year. Although Lewis conceded that Evans’ actions were, at worst, at one-time event, he contacted the EEOC to pursue claims against both Asplundh and the utility. The investigator told Lewis that his narrative failed to state a claim against Asplundh, so he revised his statement. Ultimately, Lewis filed a charge with the commission alleging disparate pay, racial harassment and retaliation against Asplundh. The charge specifically stated that Lewis had been subjected to harassment by “Pete Evans, GRU Inspector.” LONG INVESTIGATION Acting with all due dispatch, the EEOC investigated the allegations for almost 3 years (32 months to be exact). The court noted that Asplundh cooperated with the investigation, which focused on the disparate pay issue. On March 31, 1999, the commission issued a “Letter of Determination” finding there to be “reasonable cause” to believe that Lewis had been subject to harassment and retaliation. The commission cited no additional facts of harassment other than Evans’s conduct. Although the commission took 32 months to investigate Lewis’s allegations, once the determination was made, the case apparently moved from the “molasses trail” to the “rocket docket.” On April 7, the EEOC sent Asplundh’s General Counsel a “Conciliation Agreement” requiring a response within 12 business days. The proposed agreement sought both reinstatement for Lewis and front pay, despite the fact that the project on which he had worked had ended almost 3 years earlier. The EEOC also proposed that Asplundh provide nationwide notice to its employees of Lewis’s allegations and immediately conduct nationwide anti-discrimination training to all of its employees. The agreement was also notable for what it did not provide — any explanation of how Asplundh could have been liable for the alleged harassment by Evans, a third party. Asplundh hired local counsel in Gainesville, who wrote to the commission asking for a telephone conference to discuss the case and to learn the EEOC’s theory of liability. Counsel for Asplundh wrote: “I ask you to extend the time for responding to the proposed Conciliation Agreement until we have had the opportunity to review this matter and you and I have had an opportunity to discuss the issues.” By any fair reading not an unreasonable request. Instead of responding to the letter in kind, however, the day after receiving Asplundh’s letter, wrote that “efforts to conciliate this charge … were unsuccessful” and that “further conciliation efforts would be futile.” EEOC FILES SUIT Asplundh repeatedly tried to contact the EEOC over the next two weeks. The only response was a message from the investigator that the case was out of her hands. On May 12, 1999, the EEOC filed the lawsuit at issue. The district court dismissed the complaint and awarded attorneys’ fees to Asplundh on the grounds that the commission failed to engage in good faith conciliation, as required by Title VII. The court specifically found that the EEOC had acted in a “grossly arbitrary manner” and that its handling of the concilation was “unreasonable.” The EEOC appealed. The 11th Circuit found that the “fundamental question [in considering the EEOC's conciliation efforts] is the reasonableness and responsiveness of the EEEOC’s conduct under all the circumstances.” In reviewing the circumstances, the appellate court agreed with the lower court. The EEOC’s conduct, it was held, “smacks more of coercion than of conciliation.” In making this finding, the court reviewed each aspect of the commission’s actions and essentially found that the whole was worse than the individual parts. SUIT GETS THE PUBLICITY The court looked beyond the actual pleadings for the commission’s possible motivation for unreasonably shortening the conciliation process. Calling the instant lawsuit “lurid [and] perhaps newsworthy,” the court noted that “the commission’s haste may have been motivated, at least in part, by the fact that conciliation unlike litigation, is not in the public domain.” The court continued by noting that the “EEOC office in Miami, which is prosecuting this case, has apparently already made public by way of comments to the New York Times that this case involves the allegation of a noose incident. The article … inaccurately suggests that an Asplundh employee placed the noose around … Lewis’ neck.” Reviewing the court’s opinion, it is hard to disagree that the commission acted in bad faith, warranting the award of attorneys’ fees to Asplundh. It is also hard to escape the conclusion that the EEOC’s delay in investigating the case, along with the some of the fundamental problems in the underlying case itself, set up the appearance of a “hurry up and wait” approach. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected]

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