Mirna Serrano v. Cintas Corporation

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0383p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
MIRNA E. SERRANO et al.,
-
Plaintiffs,
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-
Nos. 10-2629/11-2057
EQUAL EMPLOYMENT OPPORTUNITY
,
>
Plaintiff Intervenor-Appellant, -
COMMISSION,

-
-
-
v.
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Defendant-Appellee. -
CINTAS CORPORATION,
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 2:04-cv-40132; 2:06-cv-12311—Sean F. Cox, District Judge.
Argued: April 20, 2012
Decided and Filed: November 9, 2012
Before: MOORE, GIBBONS, and ALARCÓN,* Circuit Judges.

_________________

COUNSEL
ARGUED: Jennifer S. Goldstein, UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Gregory M. Utter,
KEATING, MUETHING & KLEKAMP PPL, Cincinnati, Ohio, for Appellee.
ON BRIEF: Jennifer S. Goldstein, UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Gregory M. Utter,
Rachael A. Rowe, KEATING, MUETHING & KLEKAMP PPL, Cincinnati, Ohio, for
Appellee.
MOORE, J., delivered the opinion of the court, in which ALARCÓN, J., joined
and GIBBONS, J., joined in part. GIBBONS, J. (pp. 28–31), delivered a separate
opinion concurring in part and dissenting in part.
_________________

*
The Honorable Arthur L. Alarcón, Senior Circuit Judge for the United States Court of Appeals
for the Ninth Circuit, sitting by designation.

1
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 2

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. The Equal Employment Opportunity
Commission (“EEOC”) appeals two judgments entered by the district court in favor of
Cintas Corporation (“Cintas”) on sex-discrimination claims under Title VII. The EEOC
alleged that Cintas discriminated against women in its hiring practices for the Service
Sales Representative (“SSR”) position. In the first judgment, entered on October 18,
2010, the district court granted Cintas’s motion for judgment on the pleadings with
respect to the EEOC’s pattern-or-practice style claim and granted summary judgment for
Cintas on the EEOC’s thirteen individual-claimant claims. In the second judgment,
entered on August 18, 2011, the district court granted Cintas’s motion for attorney fees
and costs in light of its status as the prevailing party. For the reasons that follow, we
VACATE both judgments and REMAND for further proceedings consistent with this
opinion.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Background

Cintas is a corporation that supplies uniforms to businesses throughout North
America. Sealed Appx. at A-1095. In fact, it is the largest such supplier with more than
800,000 clients and 400 operating facilities. Id. Cintas’s SSRs are a key component of
its workforce and provide the essential function of driving trucks to pick up and deliver
uniforms and other products requested by clients. Id. at A-911. While performing these
functions, SSRs are also expected to act as sales representatives by providing any needed
customer service, pitching up-sells to existing clients, and collecting payments due for
services. Id. at A-911-12. Because SSRs are constantly out in the field servicing
customers, SSRs are in many respects the public “face of Cintas.” Id. at A-851.

Given the various demands of the job, SSRs are required to possess both
communication and sales skills as well as the physical capacity to drive trucks and make
deliveries. Id. at A-439-442. In addition, all SSRs are required to have a high school
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 3

diploma or GED and a driver’s license. Id. at A-37. The selection process for SSR
candidates begins with a review of the candidate’s application and resume. Id. at A-226,
A-228. Desirable candidates are then selected for a brief screening interview, which
may be conducted either in person or on the phone. Id. Candidates who perform well
in screening are then invited to participate in more in-depth interviews and on-the-job
simulations, after which an offer of employment may be made. Id. at A-234.

Mirna Serrano (Serrano), a female, unsuccessfully “applied numerous times” for
a position as an SSR at Cintas’s Michigan Westland location. R. 876-5 (Serrano EEOC
Charge). Concluding that Cintas’s failure to hire her may have been because of her sex,
Serrano filed a discrimination charge with the EEOC on April 7, 2000. Id. On July 3,
2002, after investigating Serrano’s claims and then expanding the investigation to
include Cintas’s female hiring practices throughout Michigan, the EEOC issued a
reasonable-cause determination stating that the EEOC had “reasonable cause to believe
that [Serrano’s] allegations are true” and “reasonable cause to believe that [Cintas] has
discriminated against females as a class.” R. 836-40 (EEOC Reasonable-Cause
Determination). That same day, the EEOC sent a proposed conciliation agreement to
Cintas suggesting that relief be provided to Serrano, one-hundred and eleven other
specified women, and an unspecified number of “other similarly situated females.” R.
836-41 (Proposed Conciliation Agreement at 3-4). Cintas did not respond or present a
counteroffer for settlement. As a result, almost three years later on April 14, 2005, the
EEOC notified Cintas that it was terminating conciliation efforts because they had been
unsuccessful. R. 876-8 (EEOC Conciliation Termination Ltr.).

B. Procedural History

In May 2004, while the EEOC and Cintas were still involved in conciliation,
Serrano filed a Title VII class-action complaint against Cintas in the U.S. District Court
for the Eastern District of Michigan. R. 1 (Serrano Compl.). Shortly after conciliation
terminated at the end of 2005, the EEOC intervened in the Serrano action. R. 97 (Dist.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 4

Ct. Order, 12/22/05); R. 98 (EEOC Compl.).1 In June 2008, the private plaintiffs jointly
moved for nationwide class certification, R. 411 (Plaintiffs’ Mot. to Certify Class),
which the district court denied on March 31, 2009, R. 627 (Dist. Ct. Order, 3/31/09).
The remaining named parties proceeded to litigate their individual claims and, by April
2010, all of the individual plaintiffs save Serrano “had their cases either dismissed,
settled, or otherwise resolved.” R. 937 (Dist. Ct. Op., 9/20/10, at 2).2 Serrano and
Cintas later concluded a settlement agreement in September 2010. See R. 937 (Dist. Ct.
Op., 9/20/10).

After the class-certification issues were resolved, the EEOC and Cintas held a
scheduling conference on August 10, 2009, and the district court set dates for discovery
and the final pre-trial conference. R. 646 (Dist. Ct. Sched. Order, 8/11/09). In
recognition of the denial of nationwide class certification for the private plaintiffs, the
EEOC filed an amended complaint on August 20, 2009, which limited its allegations to
“a class of women in the State of Michigan” as opposed to females nationwide. See R.
650 (EEOC First Amend. Compl. ¶¶ 8, 9, 11).

On October 21, 2009, Cintas moved for judgment on the pleadings, arguing that
the EEOC could assert a claim of pattern-or-practice discrimination only pursuant to the
EEOC’s authority under § 707, and not under § 706, of Title VII. R. 662 (Cintas Mot.
for Judgment). The district court granted Cintas’s motion on February 9, 2010, R. 723
(Dist. Ct. Order, 2/9/10), and denied the EEOC’s request to certify the issue for
interlocutory appeal, R. 752 (Dist. Ct. Order, 3/12/10). Shortly thereafter, the EEOC
made a series of motions in light of the district court’s ruling. First, the EEOC moved
for an extension of the discovery period to allow additional time to investigate
individual-based claims. R. 731 (EEOC Mot. to Extend Discovery). Next, the EEOC
moved to compel Cintas to produce, among other things, unredacted employment

1
In July 2006, the Serrano case was consolidated for pretrial purposes with related case Avalos
et al. v. Cintas Corp., No. 06-12311. R. 143 (Dist. Ct. Order. 7/10/06). The EEOC was already an
intervenor in the Avalos case prior to consolidation. See R. 144 (Dist. Ct. Order, 7/10/06).
2
Plaintiff Tanesha Davis timely appealed the district court’s denial of class certification and grant
of summary judgment on her individual claim. Case No. 06-12311, R. 669 (Notice of Appeal). This
appeal is proceeding before another panel of this court. See Sixth Circuit Case No. 10-1662.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 5

applications bearing the applicants’ last names, addresses, and telephone numbers. R.
759 (EEOC Mot. to Compel). With both of these motions still outstanding, the EEOC
moved to file a second amended complaint in order to add § 707 as a basis for its claims.
R. 765 (EEOC Second Mot. to Amend).

The district court denied the discovery motions one by one. First, after a hearing,
the district court denied the motion for an extension of discovery on April 5, 2010. R.
783 (Dist. Ct. Order, 4/5/10). Next, upon advice from the magistrate judge, the district
court refused to compel Cintas to produce the unredacted employment applications. R.
807 (Magistrate Order, 4/22/10); R. 843 (Dist. Ct. Order, 7/7/10). After these rulings,
on the final day of discovery, the EEOC sent notice of its intent to depose Scott Farmer,
Cintas’s President and CEO. On May 3, 2010, Cintas moved for a protective order
barring the deposition. R. 816 (Cintas Mot. for Protective Order).

On June 2, 2010 after the close of the discovery period, the district court denied
the EEOC’s motion to file a second amended complaint. R. 829 (Dist. Ct. Order,
6/2/10); R. 940 (Amended Dist. Ct. Order). The next day the magistrate judge held a
hearing on Cintas’s motion for a protective order, and then issued an order granting the
motion. R. 831 (Magistrate Order, 6/10/10). Although the EEOC filed objections, R.
834 (EEOC Objections), it does not appear that the district court ever ruled on them.

On June 25, 2010, Cintas moved for summary judgment alleging that the EEOC
failed to satisfy the administrative prerequisites to suit under § 706. R. 836 (Cintas
Omnibus Mot. for Summary Judgment). On July 14, 2010, Cintas moved for summary
judgment on the merits of each of the individual claimants’ claims. See R. 848, R. 850,
R. 852, R. 854, R. 856, R. 858, R. 859, R. 862, R. 864, R. 867, R. 869, R. 871, R. 873
(Cintas Mots. for Summary Judgment). Between September 3 and 10, 2010, the district
court granted judgment in Cintas’s favor on each of the individual summary-judgment
motions. See R. 923-935 (Dist. Ct. Opinions). The district court thereafter also granted
Cintas’s omnibus motion alleging administrative default on September 20, 2010. R. 936
(Dist. Ct. Opinion, 9/20/10). The district court entered judgment on October 18, 2010,
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 6

R. 941 (Judgment, Case No. 10-2629), and the EEOC filed a timely notice of appeal, R.
1070 (Notice of Appeal, Case No. 10-2629).

On October 18, 2010, Cintas moved, as the prevailing party, for attorney fees and
costs, R. 943 (Cintas Mot. for Fees and Costs), and the district court granted the motion
on August 4, 2011, R. 1079 (Dist. Ct. Op., 8/4/2011). The district court entered
judgment on August 18, 2011, R. 1080 (Judgment, Case No. 11-2057), and the EEOC
filed a timely notice of appeal, R. 1081 (Notice of Appeal, Case No. 11-2057).

II. ANALYSIS

The EEOC raises a number of challenges to the district court’s resolution of its
claims against Cintas. In particular, the EEOC argues that the district court erred in:
(1) holding that the EEOC could not pursue a pattern-or-practice style claim pursuant
to § 706 of Title VII; (2) denying the EEOC leave to amend its complaint; (3) refusing
to extend the time for discovery; (4) declining to compel Cintas to produce unredacted
employment applications; (5) granting a protective order barring the deposition of Scott
Farmer (“Farmer”); (6) granting summary judgment in favor of Cintas on the thirteen
individual claims; (7) holding that the EEOC failed to satisfy its administrative
prerequisites to suit; and (8) awarding Cintas attorney fees and costs. We address each
issue in turn.

A. Pattern or Practice of Discrimination

The first, and ultimately most salient, issue in this case concerns the
disagreement among the parties as to whether the EEOC is limited to proving its
allegations of discrimination pursuant to the McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), burden-shifting framework, or whether it may employ the pattern-or-
practice framework announced by the Supreme Court in International Brotherhood of
Teamsters v. United States, 431 U.S. 324 (1977). Before delving into the substance of
this dispute, it is worth reviewing the legal landscape for Title VII discrimination claims
and situating the McDonnell Douglas and Teamsters frameworks within that context.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 7

1. Title VII Discrimination Claims

“The Supreme Court has recognized two distinct types of Title VII employment
discrimination: ‘disparate treatment’ and ‘disparate impact.’” Huguley v. Gen. Motors
Corp., 52 F.3d 1364, 1370 (6th Cir. 1995); see also Bowdish v. Cont’l Accessories, Inc.,
No. 91-1548, 1992 WL 133022, at *3 (6th Cir. June 12, 1992) (unpublished opinion)
(“Courts have recognized two different types of claims under [Title VII]: ‘disparate
impact’ claims and ‘disparate treatment’ claims.”). “Disparate impact claims involve
facially neutral employment practices that have disproportionate impact on protected
classes of individuals” while “[d]isparate treatment claims . . . involve intentionally
discriminatory employment practices.” Bowdish, 1992 WL 133022, at *3; United States
v. Brennan, 650 F.3d 65, 89-90 (2d Cir. 2011). Plaintiffs asserting a disparate-treatment
claim must prove discriminatory motive or intent, while plaintiffs asserting a disparate-
impact claim need not. Huguley, 52 F.3d at 1371 (“Unlike disparate impact, a disparate
treatment claim obligates the plaintiff to show discriminatory intent or motive for a
particular adverse employment decision.”) (citing Teamsters, 431 U.S. at 335-36 n.15).
The Title VII jurisprudence has developed to allow plaintiffs to make their showing of
discriminatory intent for disparate-treatment claims either through direct or
circumstantial evidence. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12 (2002);
Foster v. Cuyahoga Cnty. Bd. of Comm’rs, No. 97-3504, 1998 WL 57481, at *1 (6th Cir.
Feb. 3, 1998) (unpublished opinion) (“To advance a disparate treatment claim, a plaintiff
must show that the employer has a discriminatory motive, which may be shown by direct
evidence or through inference based on a prima facie showing of discrimination.”)
(citing McDonnell Douglas, 411 U.S. at 802), cert. denied, 525 U.S. 937 (1998).

Both McDonnell Douglas and Teamsters provide frameworks through which a
plaintiff can prove intentional discrimination through circumstantial evidence. See Birch
v. Cuyahoga Cnty. Probate Ct., 392 F.3d 151, 165 (6th Cir. 2004) (“[T]he McDonnell
Douglas . . . paradigm [is] utilized for intentional discrimination cases premised solely
on circumstantial evidence.”); Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 183
(3rd Cir. 2009) (“The Teamsters framework was judicially promulgated as a method of
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 8

proof for pattern-or-practice claims brought by the government under Title VII, as that
statute authorizes—it provides a means by which courts can assess whether a particular
form of statutorily prohibited discrimination exists, just as the McDonnell Douglas
framework does for individual claims of disparate treatment.” (emphasis added));
Ekanem v. Heath & Hosp. Corp. of Marion Cnty., Ind., 724 F.2d 563, 575 (7th Cir.
1983) (“The ‘pattern or practice’ theory of proof set forth in Teamsters and its progeny
affords plaintiffs wide latitude in attempting to establish circumstantial evidence of
unlawful intent.”).

The McDonnell Douglas burden-shifting framework consists of a three-step
process. It requires a plaintiff first to establish a prima facie case by presenting evidence
from which a jury could find that “(1) [plaintiff] is a member of a protected class;
(2) [plaintiff] was qualified for [the] job; (3) [plaintiff] suffered an adverse employment
decision; and (4) [plaintiff] was replaced by a person outside the protected class or
treated differently than similarly situated non-protected employees.” White v. Baxter
Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008), cert. denied, 129 S. Ct. 2380
(2009). “Once the plaintiff establishes this prima facie case, the burden shifts to the
defendant to offer evidence of a legitimate, nondiscriminatory reason for the adverse
employment action.” Id. “[I]f the defendant succeeds in this task, the burden shifts back
to the plaintiff to show that the defendant’s proffered reason was not its true reason, but
merely a pretext for discrimination.” Id. at 391-92.

The Teamsters framework is distinct. It charges the plaintiff with the higher
initial burden of establishing “that unlawful discrimination has been a regular procedure
or policy followed by an employer or a group of employers.” Teamsters, 431 U.S. at
360. Upon that showing, it is assumed “that any particular employment decision, during
the period in which the discriminatory policy was in force, was made in pursuit of that
policy” and, therefore, “[t]he [plaintiff] need only show that an alleged individual
discriminatee unsuccessfully applied for a job.” Id. at 362. The burden then shifts to
“the employer to demonstrate that the individual applicant was denied an employment
opportunity for lawful reasons.” Id. “When the Government seeks individual relief for
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 9

the victims of the discriminatory practice,” bifurcation of proceedings may be proper
because “a district court must usually conduct additional proceedings after the liability
phase of the trial to determine the scope of individual relief.” Id. at 361.

The two structures are similar insofar as they impose the initial burden on the
plaintiff to present facts sufficient to create an inference of discrimination. See id. at
358. However, the substance of what the plaintiff must prove to prevail in establishing
a prima facie case varies under each framework. In addition, the Teamsters framework
contemplates a bifurcation of proceedings that the McDonnell Douglas framework does
not. Accordingly, the district court’s decision that the EEOC could not proceed under
the Teamsters framework matters greatly to the structure of the proceedings as they
move through discovery and eventually to trial. Before reviewing the merits of the
district court’s decision in this regard, it is useful to clarify its procedural posture for
context.

After answering the EEOC’s complaint and attending a scheduling conference,
Cintas moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c). R. 662 (Mot. for Judgment). In support of the motion, Cintas argued that the
EEOC failed to state a claim for pattern-or-practice discrimination because the EEOC
brought suit pursuant to § 706 of Title VII, and not § 707. The district court agreed with
Cintas’s arguments and granted judgment in its favor. R. 723 (Dist. Ct. Op., 2/09/10).
However, in addition to concluding that the EEOC cannot pursue a claim under the
Teamsters pattern-or-practice framework when it acts pursuant to § 706, the district
court also made clear that the EEOC erred in never pleading its intent to rely on the
Teamsters framework: The district court concluded that “[d]espite more than ample
opportunity to express its intention to prosecute this action under the Teamsters
framework, the EEOC only chose to formally raise the issue and inform the Court - and
Cintas - of its intentions at the eleventh hour in this litigation.” Id. at 12. Thus, the
district court emphasized the EEOC’s failure to state in its complaint that it planned to
proceed under the Teamsters pattern-or-practice framework and concluded that “[o]n
these procedural facts alone” Cintas was entitled to judgment on the pleadings. Id.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 10

Consequently, although Cintas has focused primarily on the legal issue of the EEOC’s
enforcement authority under § 706, we must also consider whether the EEOC satisfied
its pleading obligations. Because both decisions implicate a question of law, we review
them de novo. Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 526 (6th Cir. 2006)
(“We review de novo a judgment on the pleadings under Federal Rule of Civil Procedure
12(c).”).

2. Teamsters Framework in an EEOC Suit Pursuant to § 706

The first issue that we must address, and the one given considerable attention by
Cintas on appeal, is whether the EEOC may employ the Teamsters framework only when
it acts pursuant to § 707. For the reasons that follow, we conclude that the EEOC’s
enforcement authority is not so limited.

Cintas is correct that § 706 does not contain the same explicit authorization as
does § 707 for suits under a pattern-or-practice theory. Compare 42 U.S.C. § 2000e-
5(b), (f)(1) (§ 706) (“Whenever a charge is filed by or on behalf of a person claiming to
be aggrieved” and “the Commission determines after [its] investigation that there is
reasonable cause to believe that the charge is true, the Commission shall endeavor to
eliminate any such alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion.” If “the Commission has been unable to
secure from the respondent a conciliation agreement acceptable to the Commission, the
Commission may bring a civil action against” the respondent.), with 42 U.S.C. § 2000e-
6(a), (e) (§ 707) (The Commission may “bring a civil action” against a private entity
when it “has reasonable cause to believe that any person or group of persons is engaged
in a pattern or practice of resistance to the full enjoyment of any of the rights secured by
this subchapter.”). However, relevant Supreme Court precedent suggests that the
exclusion of pattern-or-practice language from § 706 does not mean that the EEOC may
utilize a pattern-or-practice theory only when bringing suit under § 707. Instead, it
suggests that the inclusion of the language in § 707 simply means that the scope of the
EEOC’s authority to bring suit is more limited when it acts pursuant to § 707.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 11

The premise for the Supreme Court’s decision in Teamsters was that McDonnell
Douglas did not create “an inflexible formulation” for burden shifting, but rather
embodied the “general principle that any Title VII plaintiff must carry the initial burden
of offering evidence adequate to create an inference that an employment decision was
based on a discriminatory criterion illegal under the Act.” Teamsters, 431 U.S. at 358.
Thus, the Court explained, a plaintiff has flexibility in how she meets that initial burden,
and variance based on the facts of the case is expected. See id. at 360. The Court in
Teamsters then analogized the facts surrounding discrimination claims brought by the
EEOC under § 707, which are limited to allegations of a pattern or practice of
discrimination, to the facts in Franks v. Bowman Transportation Co., 424 U.S. 747
(1976), a class-action lawsuit. Teamsters, 431 U.S. at 359-61. The Court in Teamsters
concluded that “the nature of a pattern-or-practice suit brings it squarely within” the
burden-shifting framework endorsed in Franks, i.e., a framework in which class-action
plaintiffs satisfy their initial burden of proof by making out a prima facie case of a policy
of discrimination, which it is then left to the defendant to rebut. Id. at 360.

The Teamsters opinion, while ostensibly specific to suits that the EEOC brings
pursuant to § 707, in no way indicated an intent to tie the pattern-or-practice framework
exclusively to the EEOC’s enforcement authority under § 707. To the contrary, the
Court’s reliance on Franks, a class-action case invoking § 706, suggests that the holding
of Teamsters is not to be so narrowly circumscribed. Subsequent Supreme Court
decisions affirming the viability of EEOC class claims under § 706 and Congress’s
“general intent to accord parallel or overlapping remedies against discrimination” further
support this reading of Teamsters. Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 333
(1980) (internal quotation marks omitted); see also id. at 324 (“Given the clear purpose
of Title VII, the EEOC’s jurisdiction over enforcement, and the remedies available, the
EEOC need look no further than § 706 for its authority to bring suit in its own name for
the purpose, among others, of securing relief for a group of aggrieved individuals.”); id.
at 331 (“We are reluctant, absent clear congressional guidance, to subject § 706(f)(1)
actions to requirements that might disable the enforcement agency from advancing the
public interest in the manner and to the extent contemplated by the statute.”).
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 12

The EEOC asserts that the Sixth Circuit’s decision in EEOC v. Monarch Machine
Tool Co., 737 F.2d 1444 (6th Cir. 1980), is binding precedent endorsing Teamsters’s
application in the § 706 context. Monarch was a § 706 case in which this court cited
Teamsters and Franks to conclude “that the trial should have been bifurcated, if class-
wide discrimination was properly found.” Id. at 1449. Monarch came closest to
endorsing the EEOC’s reading of Teamsters in a footnote stating: “Although we realize
the Supreme Court in Teamsters was discussing the proper procedure for the district
court to follow in a section 707 pattern-and-practice suit, it adopted this procedural
framework from Franks which dealt with class actions under section 706.” Id. at 1449
n.3. Given the procedural posture of the case, and that the application of Teamsters in
the § 706 context is only implicitly endorsed, Monarch’s precedential value is
ambiguous. See id. at 1449 (stating that court was reviewing trial-court decision issued
prior to the Supreme Court holding that § 706 suits brought by the EEOC need not
conform to Rule 23’s class-action requirements). Nevertheless, Monarch stands as at
least one example of a Sixth Circuit case applying the Teamsters framework to a suit
brought by the EEOC pursuant to § 706, and there appear to be no Sixth Circuit
decisions to date holding that Teamsters may not be applied in the § 706 context.

Cintas’s strongest argument is that allowing the EEOC to pursue Title VII claims
pursuant to the Teamsters framework under § 706 would render § 707 superfluous—a
result that Congress could not have intended. This argument is buttressed by Cintas’s
contention that Congress’s 1991 amendments to § 706 adding compensatory and
punitive damages—remedies not added to § 707—evidence a desire to prevent the
availability of these remedies when the EEOC seeks to vindicate pattern-or-practice
discrimination. Cintas has a point that reading § 706 to permit Teamsters-style claims
creates some overlap with § 707. Moreover, Congress may have wanted to provide the
EEOC with two different vehicles for initiating two different types of Title VII suits,
each with its own advantages and disadvantages in terms of scope, burden of proof, and
available remedies. However, an important distinction prevents § 707 from becoming
superfluous even if Teamsters applies in the § 706 context: § 707 permits the EEOC to
initiate suit without first receiving a charge filed by an aggrieved individual, as it must
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 13

when initiating suit under § 706. See EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427,
2007 WL 844555, at *9 (N.D. Ill. Mar. 16, 2007) (unpublished opinion). It is reasonable
to conclude that the presence of a previously filed charge by an aggrieved person was
the distinction upon which Congress wished the availability of particular remedies to rise
and fall. In fact, this is arguably the most logical interpretation of congressional intent
given that the need for compensatory and punitive damages diminishes when the EEOC
is not seeking compensation for a specific victim of discrimination.

Cintas also suggests that allowing the EEOC to pursue the pattern-or-practice
method for § 706 claims will allow the EEOC to “have its cake and eat it too” because
the Teamsters framework provides a more generous standard of proof and § 706 affords
greater remedies. This argument is based on a mistaken premise. The Teamsters
framework is not an inherently easier standard of proof; it is simply a different standard
of proof. Indeed, under Teamsters, the plaintiff’s initial burden to make out a prima
facie case is heightened. Unlike under the McDonnell Douglas framework, where a
plaintiff must show membership in a protected class, objective qualifications for the job,
and an adverse employment decision from which others similarly situated but not part
of the protected class were spared, White, 533 F.3d at 391, under Teamsters the plaintiff
must demonstrate the existence of a discriminatory procedure or policy, 431 U.S. at 360.
This is no simple task, as the plaintiff “must prove that discrimination ‘was the
company’s standard operating procedure—the regular rather than the unusual practice.’”
Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012) (quoting Teamsters, 431
U.S. at 336). It is only because this initial requirement is more arduous that after the
showing is made it is assumed “that any particular employment decision, during the
period in which the discriminatory policy was in force, was made in pursuit of that
policy.” Teamsters, 431 U.S. at 362. Even then, the defendant still may rebut the
assumption by providing “lawful reasons” for the employment decision. See id. Thus,
the EEOC must always weigh the risks—as well as the benefits—of proceeding under
the Teamsters framework, for doing so involves a greater chance of losing at the prima
facie stage.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 14

Accordingly, we hold that the district court erred in concluding that the EEOC
may not pursue a claim under the Teamsters pattern-or-practice framework, pursuant to
its authority vested in § 706 of Title VII.

3. Failure to Assert Teamsters Framework in Complaint

Having concluded that the EEOC may pursue its claim under the Teamsters
pattern-or-practice framework pursuant to its authority under § 706 of Title VII, we turn
to the question whether the EEOC is barred from doing so in this instance because of
deficiencies in its pleadings. As previously explained, the district court concluded that
the EEOC’s failure to plead its intent to prove its Title VII claim pursuant to the
Teamsters pattern-or-practice framework in its complaint entitled Cintas to judgment on
the pleadings. The district court’s ruling of law was erroneous in light of controlling
Supreme Court precedent.

The Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002), which neither the parties nor the district court discussed, has important
implications for this issue. In Swierkiewicz, the Supreme Court resolved “the question
whether a complaint in an employment discrimination lawsuit must contain specific facts
establishing a prima facie case of discrimination under the [McDonnell Douglas]
framework.” Id. at 508. The Court answered in the negative and explained that “[t]he
prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.” Id. at 510. Thus, the Court reasoned, because “the precise requirements
of a prima facie case can vary depending on the context,” and the appropriate type of
prima facie case may not be evident until discovery is conducted, it would be improper
to impose “a rigid pleading standard for discrimination cases.” Id. at 512. In so holding,
the Court recognized that in any given case a plaintiff may rely on direct or
circumstantial evidence to prove the alleged intentional discrimination and, prior to
knowing the universe of evidence available, it may be difficult to determine which
theory is likely to be more successful. Id. at 511-12.

Consequently, Swierkiewicz establishes that so long as a complaint provides an
adequate factual basis for a Title VII discrimination claim, it satisfies the pleading
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 15

requirements of Federal Rule of Civil Procedure 8(a)(2). See Lindsay v. Yates, 498 F.3d
434, 439-40 (6th Cir. 2007). In this regard, the pleading requirements for Title VII
claims are no different than those for other claims; they are subject to the same
requirement of setting forth “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Moreover,
Swierkiewicz remains good law after the Supreme Court’s decision in Twombly. Keys
v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012) (“The Supreme Court’s subsequent
decisions in Twombly and Iqbal did not alter its holding in Swierkiewicz.”). In Twombly,
the Court noted that “Swierkiewicz did not change the law of pleading, but simply re-
emphasized that the Second Circuit’s use of a heightened pleading standard for Title VII
cases was contrary to the Federal Rules’ structure of liberal pleading requirements.”
Twombly, 550 U.S. at 570 (internal quotation marks and alterations omitted). The Court
then emphasized that its decision in Twombly “do[es] not require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is plausible on
its face.” Id. This Circuit has continued to apply Swierkiewicz, and there is no reason
not to do so in this instance. See Keys, 684 F.3d at 609–10; Lindsay, 498 F.3d at 440
n.6.

Swierkiewicz compels the conclusion that a plaintiff is not required to plead
whether she intends to employ the McDonnell Douglas or the Teamsters burden-shifting
evidentiary framework. Keys, 684 F.3d at 606; see also Pedreira v. Ky. Baptist Homes
for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009) (recognizing that any disagreement
over the evidentiary framework under which to proceed is “premature” at the pleadings
stage), cert. denied, 131 S. Ct. 2091 (2011). Although a plaintiff must “offer[] evidence
adequate to create an inference that an employment decision was based on a
discriminatory criterion illegal under the Act,” Teamsters, 431 U.S. at 358, Swierkiewicz
explained that plaintiffs are not required to commit to one methodology of evidentiary
proof to substantiate that inference in their complaint, 534 U.S. at 511-12. Because
Swierkiewicz provides that, at the pleading stage, a plaintiff need not indicate whether
she seeks to prove intentional discrimination through direct or circumstantial evidence,
it necessarily follows that a plaintiff need not indicate at the pleading stage which
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 16

circumstantial evidentiary framework—McDonnell Douglas or Teamsters—she intends
to employ. A contrary holding would impose an even more rigid pleading requirement
than that which the Supreme Court rejected in Swierkiewicz. In fact, it would be akin
to requiring a plaintiff to plead the theory of the case in the complaint, a requirement
which has been rejected unequivocally even outside of the Title VII context. See 5
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 1219 (3d ed. 2012).

In sum, Swierkiewicz and Teamsters indicate that the district court erred in
holding that Cintas was entitled to judgment on the pleadings in light of the EEOC’s
failure to plead its intent to rely on the Teamsters framework. Teamsters provides an
evidentiary framework pursuant to which the EEOC may seek to prove its allegations
of intentional discrimination, not an independent cause of action. See Hohider, 574 F.3d
at 183. The EEOC, therefore was under no obligation to plead its intent to utilize the
Teamsters framework; the EEOC was required only to set forth sufficient facts in its
complaint upon which its claim for relief under Title VII was plausible. See Twombly,
550 U.S. at 570. Accordingly, it would be improper for this court to affirm the district
court’s ruling that the EEOC committed some sort of procedural default by failing to
plead its intent to pursue the Teamsters pattern-or-practice framework in its complaint.

We do observe that the EEOC’s complaint is not a model of good lawyering.
The complaint is sparse—the substance of its allegations span only four brief
paragraphs. Perhaps the EEOC relied on the private plaintiffs’ complaint as establishing
the context. Indeed, in light of that context, we are deeply suspicious of any argument
by Cintas that it had no idea that the EEOC intended to proceed on a theory of
discrimination that involved class-based allegations of pattern-or-practice
3
discrimination. Thus, were Cintas on remand to challenge the EEOC’s complaint on

3
It is undisputed that the EEOC did not include “pattern or practice” language in its complaints.
While the EEOC’s original complaint did cross reference the private plaintiffs’ Second Amended
Complaint, which alleged that Cintas “engag[ed] in a nationwide policy, pattern or practice of denying
‘Service Sales Representative’ positions to female applicants,” R. 70 (Plaintiffs Second Amend. Compl.
¶ 1), this cross reference was deleted from the EEOC’s First Amended Complaint, compare R. 98 (EEOC
Compl. ¶ 8), with R. 650 (EEOC First Amend. Compl. ¶ 8), which the EEOC filed after the private
plaintiffs were denied nationwide class certification, see R. 627 (Dist. Ct. Order, 3/31/09). Of course,
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 17

proper terms—that being on the adequacy of the factual basis for its allegations of
discrimination—the appropriate remedy would be to grant the EEOC leave to amend the
complaint to provide a more detailed factual basis. This result would be equitable in
light of the fact that, to date, Cintas has not challenged the specificity of the EEOC’s
factual allegations of discrimination, and that the contours of the litigation have been
clear to all parties involved since the outset.

B. Motion for Leave to File a Second Amended Complaint

After the district court held that the EEOC could not proceed under the
Teamsters framework pursuant to § 706, the EEOC moved to amend its complaint to
include § 707 as the statutory basis for its claims. The district court denied the motion
upon concluding that the EEOC unduly delayed in seeking the amendment and that
allowing amendment of the complaint would prejudice Cintas. R. 829 (Dist. Ct. Order,
6/2/10). Because we hold that the EEOC may proceed under the Teamsters framework
pursuant to § 706, the EEOC’s appeal of the denial of its motion to amend is moot.
However, because we are remanding to the district court to permit the EEOC to proceed
under the pattern-or-practice-style framework pursuant to § 706, the district court may

when amending its complaint, the EEOC could have included explicit pattern-or-practice allegations rather
than just deleting the cross reference. The EEOC did not do so, however, and its rationale is unknown.
Counsel at oral argument provided no explanation other than to say that the EEOC did not believe it
necessary to include such language in its complaint.
Despite the absence of explicit pattern-or-practice language in the complaint, however, it strains
credulity that Cintas was blind-sided at the scheduling conference by the EEOC’s assertion that it would
seek to prove that Cintas engaged in unlawful discrimination pursuant to the Teamsters pattern-or-practice
framework. First, the private class-action suit in which the EEOC intervened concerned allegations that
Cintas engaged in a pattern or practice of unlawful discrimination. See R. 70 (Plaintiffs Second Amend.
Compl. ¶ 1). The denial of Rule 23 nationwide class certification for the private plaintiffs had no impact
on the EEOC’s class claims because Rule 23 does not apply to suits brought by the EEOC. Gen. Tel. Co.
of the Nw., 446 U.S. at 323; see also Davoll v. Webb, 194 F.3d 1116, 1146 n.20 (10th Cir. 1999) (denying
class certification but upholding EEOC’s Title VII claim pursued under a pattern-or-practice framework).
Moreover, the EEOC’s response to the denial of class certification was not to remove all class-based
allegations from its complaint, but rather to limit the scope of its class to women in Michigan as opposed
to women nationwide. If anything, this should have signaled to Cintas that the EEOC would be proceeding
on the same theory, just on a more limited scope.
The EEOC’s amended complaint also made clear that the EEOC’s allegations extended beyond
isolated incidents of discrimination. The EEOC alleged that Cintas “refused to recruit and hire women as
Route Sales Drivers/Service Sales Representatives throughout the State of Michigan because of their sex”
and purported to seek relief for “a class of women in the State of Michigan.” R. 650 (EEOC First Amend.
Compl. at 2, ¶¶ 8, 9) (emphasis added). The EEOC also requested relief tailored to remedying class-based
harms: The EEOC requested an order that Cintas “institute and carry out polices, practices, and programs
that provide equal employment opportunities for women and eradicate the effects of its past and present
unlawful employment practices.” Id. at 4.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 18

wish to reconsider the merits of permitting a second amended complaint in light of the
changed circumstances.

C. Discovery Disputes

As previously mentioned, the EEOC challenges three discovery orders issued by
the district court prior to its final judgment on the merits: (1) an order denying the
EEOC’s request for extension of discovery; (2) an order denying the EEOC’s motion to
compel Cintas to produce unredacted employment applications by Cintas; and (3) a
protective order barring the deposition of Cintas executive Scott Farmer. We review
these discovery decisions for abuse of discretion. Dowling v. Cleveland Clinic Found.,
593 F.3d 472, 478 (6th Cir. 2010) (“We review a district court’s denial of additional time
for discovery for an abuse of discretion.”); United States v. Blood, 435 F.3d 612, 627
(6th Cir. 2006) (“We review the denial of a motion to compel production, as an
evidentiary matter within the trial court’s discretion, for an abuse of discretion.”); Doe
v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) (“We review the district court’s decision to
grant a protective order for an abuse of discretion.”).

1. Motion to Extend Discovery

The EEOC made clear that its motion for an extension of discovery was filed in
light of the district court’s ruling that the EEOC could not proceed under the Teamsters
pattern-or-practice framework. See EEOC Br. at 98 (“After the February order, EEOC
faced the prospect of proving sex discrimination through scores of individual disparate
treatment cases, rather than the Teamsters framework for which it had spent years
preparing. EEOC realized that it would be unworkable to develop cases for all
potentially-injured female applicants in the short discovery period remaining, and so it
immediately moved (on February 17, 2010) for a discovery extension.”). Because we
have held that the EEOC may proceed under the Teamsters framework, the EEOC’s
appeal of the denial of this specific motion is moot. Moreover, although it is likely in
light of our pattern-or-practice ruling that a new period of discovery will be necessary,
we defer to the district court’s judgment on this matter in the first instance.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 19

2. Motion to Compel Production of Unredacted Applications

The EEOC also appeals the denial of its motion to compel Cintas to produce
unredacted versions of the employment applications that the company produced during
discovery. The magistrate judge initially denied the EEOC’s motion because of the
district court’s pattern-or-practice ruling, concluding that the EEOC was not entitled to
this discovery in light of proceeding solely on the thirteen individual claims. R. 807
(Magistrate Order, 4/22/10, at 2). The district court affirmed this ruling over the
EEOC’s objections. R. 843 (Dist. Ct. Order, 7/7/10). Due to our ruling that the EEOC
may proceed under the pattern-or-practice framework, the district court’s rationale for
denying this discovery request no longer exists. Accordingly, we vacate the district
court’s ruling and remand for further proceedings.

3. Deposition of Scott Farmer

In 2003, at Cintas’s annual management meeting, Scott Farmer, Cintas’s CEO,
directed the attendees—as part of his discussion of diversity, a “key initiative” for the
coming year—to “put the myth that females cannot be SSRs out of your mind and hire
more women SSRs.” Sealed Appendix at A-28, A-32. During the course of discovery,
the EEOC entered notice of its intention to depose Farmer based on this statement.
Cintas opposed the deposition and sought a protective order, which the magistrate judge
granted. The magistrate judge, applying the “apex doctrine”—a doctrine that bars the
deposition of high-level executives absent a showing of their “unique personal
knowledge” of relevant facts—concluded that taking the deposition of Farmer was
improper because the EEOC had failed to demonstrate that Farmer had personal
knowledge about the individual claimants’ rejected applications for employment.4 R.
831 (Magistrate Order, 6/10/10, at 5-6); see also R. 816-2 (Farmer Aff. ¶¶ 5-9) (stating
under oath that Farmer has no personal knowledge of these individual hiring decisions).
The magistrate judge asserted that the “apex doctrine” is “well recognized” and cited in
support Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998), and Lewelling v.

4
It does not appear that the district court ruled on the EEOC’s objections to the order issued by
the magistrate judge.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 20

Farmer’s Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir. 1989). R. 831 (Magistrate
Order, 6/10/10, at 3, 6). The EEOC argues that the magistrate judge misconstrued the
relevant law because the “apex doctrine” has not been recognized and applied by this
court.

Federal Rule of Civil Procedure 26(c)(1)(A) provides that a district “court may,
for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense” by, inter alia, barring the
deposition of that individual. “To justify restricting discovery, the harassment or
oppression should be unreasonable, but ‘discovery has limits and . . . these limits grow
more formidable as the showing of need decreases.” 8A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER ET AL., FEDERAL PRACTICE AND PROCEDURE § 2036 (3d ed. 2012).
“Thus even very slight inconvenience may be unreasonable if there is no occasion for
the inquiry and it cannot benefit the party making it.” Id.

As articulated by the magistrate judge, the “apex doctrine” appears to assume
that “harassment and abuse” are “inherent” in depositions of high-level corporate
officers and therefore allow such depositions to be barred absent “a showing that the
individual possesses relevant evidence which is not readily obtainable from other
sources.” R. 831 (Magistrate Order, 6/10/10, at 3-4). A few district courts in the Sixth
Circuit have recently applied the apex doctrine claiming that while “the term ‘apex
deposition’ has not been used by the Court of Appeals for the Sixth Circuit . . . this
Circuit [has] used the same analysis without using the specific term.” HCP Laguna
Creek CA, LP v. Sunrise Sr. Living Mgmt., Inc., No. 3-10-0220, 2010 WL 890874, at *3
n.4 (M.D. Tenn. Mar. 8, 2010) (unpublished order); see also Moore v. Weinstein Co.,
No. 3:09-cv-166, 2011 WL 2746247, at *3 (M.D. Tenn. July 12, 2011) (unpublished
opinion); Jones Co. Homes, LLC v. Laborers Int’l Union of N. Am., No. 10-mc-50989,
2010 WL 5439747, at *3 (E.D. Mich. Dec. 28, 2010) (unpublished order). We disagree.

This Circuit has endorsed the view that to justify a protective order, one of Rule
26(c)(1)’s enumerated harms “must be illustrated ‘with a particular and specific
demonstration of fact, as distinguished from stereotyped and conclusory statements.’”
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 21

Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004) (quoting Gulf Oil
Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981)). In keeping with this principle, while we
sometimes have considered the need for the deposition—i.e., its potential to result in
relevant testimony—in reviewing the grant or denial of a protective order, we have not
abandoned the requirement that one of the harms listed in Rule 26(c)(1)(A) must be
specified in order to warrant a protective order. Even in cases where we have considered
extensively a corporate officer’s knowledge and, thus, capacity to provide information
relevant to the case, we have declined “to credit a [corporate officer’s] bald assertion that
being deposed would present a substantial burden,” and still required the corporate
officer to meet Rule 26(c)(1)’s requirements. Conti v. Am. Axle & Mfg., Inc., 326 F.
App’x 900, 907 (6th Cir. 2009) (unpublished opinion).

For example, in Elvis Presley Enterprises. v. Elvisly Yours, Inc., 936 F.2d 889,
894 (6th Cir. 1991), we upheld a protective order barring the deposition of Priscilla
Presley (“Presley”), a corporate executive of the plaintiff corporation, but independently
verified the order’s compliance with Rule 26(c)(1). Although we noted that Presley had
filed an “affidavit stating that she had no knowledge” relevant to the particular
trademark and state-law claims at issue, we also considered her sworn statement that the
“primary purpose in deposing her would be to harass and annoy her.” Id. In so doing,
we declined to assume that Presley’s role as a corporate officer warranted the assumption
that the deposition would be unduly burdensome.

Neither Bush nor Lewelling dissuades us of this view. Bush involved an order
by the district court barring the deposition of one corporate official and limiting the
length and scope of another’s to questions regarding the officer’s involvement in the
adverse employment decision at issue. 161 F.3d at 367. Although in Bush we discussed
the relevant knowledge both corporate officers had regarding the case, we ultimately
upheld the district court’s limitations, concluding that they “seem[ed] a reasonable way
to balance [plaintiff’s] right to discovery with the need to prevent ‘fishing expeditions.’”
Id. In so concluding, we balanced the burdens on the deponent with the need for access
to information relevant to the case, thus ensuring compliance with Rule 26(c)(1).
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 22

Similarly, in Lewelling, we upheld a protective order barring the deposition of the “then-
Chairman of the Board of Directors and Chief Executive Officer” of the defendant
corporation. Lewelling, 879 F.2d at 218. The decision was brief, mentioning only the
fact that plaintiffs had offered to cancel the deposition in exchange for settlement
negotiations and that the corporation asserted that its officer had no knowledge relevant
to the case. Id. Though not explicitly discussed, plaintiffs’ offer to cancel the deposition
in exchange for settlement indicated that its deposition notice was being used as an
oppressive bargaining chip, contrary to the purpose that deposition requests are meant
to serve. Therefore, cognizant of Rule 26(c)(1), we upheld the protective order.

Accordingly, we conclude that the magistrate judge erred as a matter of law in
relying on “apex doctrine” to grant the protective order. In doing so, the magistrate
judge considered only Farmer’s knowledge relevant to the EEOC’s claims and failed to
analyze, as required by Rule 26(c)(1), what harm Farmer would suffer by submitting to
the deposition. This error of law constitutes an abuse of discretion that warrants
vacating the magistrate judge’s order. See United States v. Clay, 667 F.3d 689, 694 (6th
Cir. 2012) (“[I]t is an abuse of discretion to make errors of law or clear errors of factual
determination.”) (internal quotation marks omitted).

Regardless, the magistrate judge’s conclusion that Farmer is unlikely to have any
information relevant to the issues in the case is undermined by our ruling that the EEOC
may proceed under the Teamsters pattern-or-practice framework. Farmer’s statements
do suggest high-level-corporate awareness of Cintas’s failure to hire females for the SSR
positions, and this goes to the heart of what the EEOC will seek to prove in proceeding
with its claims toward trial. In this sense, Farmer’s testimony is likely to be highly
probative, and he will need to demonstrate a substantial burden to justify a protective
order barring discovery. See 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 2036 (3d ed. 2012). Accordingly, we vacate the
district court’s order and remand for further proceedings.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 23

D. Summary Judgment: Individual Claims

The district court granted summary judgment to Cintas on the EEOC’s claims on
behalf of thirteen individuals; the court found that the EEOC had failed to make out a
prima facie case of sex discrimination for eight claimants and that the EEOC had failed
to rebut Cintas’s neutral explanations for its hiring decisions for five claimants. Because
these summary-judgment determinations were made under the McDonnell Douglas
framework, we vacate the grant of summary judgment and remand to permit the parties
to proceed under the Teamsters framework. Nevertheless, there is one point of law
worth clarifying given its potential relevance to the future proceedings.

The district court concluded that the EEOC failed to state a prima facie case of
sex discrimination for eight of the individual claimants because each claimant was not
objectively eligible for employment due to allegedly dishonest representations in her
employment application. The EEOC argues that this conclusion was erroneous because
the district court evaluated the candidates’ eligibility for employment based on after-
acquired evidence of dishonesty in conflict with the Supreme Court’s decision in
McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). At issue in
McKennon was “whether an employee discharged in violation of the [ADEA] is barred
from all relief when, after her discharge, the employer discovers evidence of wrongdoing
that, in any event, would have led to the employee’s termination on lawful and legitimate
grounds.” 513 U.S. at 354. Given ADEA’s purposes, the Court declined to adopt “[a]n
absolute rule barring any recovery of back-pay.” Id. at 362. However, the Court
recognized that this after-acquired evidence could be considered in a court’s weighing
of the “extraordinary equitable circumstances that affect the legitimate interests of either
party.” Id. The Court also stated that reinstatement or front pay generally would be an
inappropriate remedy in such a circumstance. Id.

Under Teamsters the EEOC must make a prima facie showing of a pattern-or-
practice of discrimination, which is left to the employer to rebut by demonstrating a
lawful reason for its employment decision. 431 U.S. at 360. Thus, the district court’s
ruling on after-acquired evidence of dishonesty pertains to the employer’s burden rather
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 24

than the EEOC’s prima facie case. However, under Teamsters, as under McDonnell
Douglas, the district court’s conclusion that any dishonesty by an individual in an
employment application operates as a per se bar to relief, regardless of whether Cintas
was aware of the dishonesty at the time of the employment decision, conflicts with the
careful framework established in McKennon. See McKennon, 513 U.S. at 358 (“It would
not accord with this scheme if after-acquired evidence of wrongdoing that would have
resulted in termination operates, in every instance, to bar all relief for an earlier
violation.”). Indeed, case law from this Circuit suggests that, if anything, after-the-fact
evidence of dishonesty should be considered only in determining the amount of damages
due to the individual and not in the initial liability stage. See Brenneman v. Medcentral
Health Sys., 366 F.3d 412, 416 n.2 (6th Cir. 2004) (“Thus, while this post hoc, additional
ground for plaintiff’s termination may be relevant to the calculation of any damages, it
is irrelevant to the determination of whether defendant improperly terminated plaintiff
under the ADA or the FMLA in the first instance.”), cert. denied, 543 U.S. 1146 (2005);
Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 718 n.3 (6th Cir. 2003) (“Regardless,
this misrepresentation clearly was not a factor in Honda’s decision to separate Cavin
because Honda was not aware of the misrepresentation at the time of Cavin’s
termination. We do recognize, however, that the misrepresentation may be relevant to
the calculation of Cavin’s damages.”).

It would be inappropriate for us to speculate as to what relief the EEOC may or
may not be eligible to seek on behalf of allegedly dishonest individuals should it succeed
in proving that Cintas was engaged in a pattern or practice of discrimination. However,
in light of the district court’s prior ruling, we do wish to emphasize that consideration
of individual applicants’ dishonesty should be reserved for the remedial portion of the
proceedings.

E. Administrative Prerequisites: Conciliation of Claims

Shortly after granting summary judgment to Cintas on the merits of the thirteen
individual discrimination claims, the district court also granted Cintas summary
judgment on the ground that the EEOC failed to comply with the administrative
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 25

prerequisites to suit under § 706. Relying heavily on an opinion from the U.S. District
Court for the Northern District of Iowa, the district court reached two principal
conclusions: (1) that the EEOC never investigated or sought to conciliate claims on a
class-wide basis; and (2) even if it had, class-wide conciliation was not an adequate
substitute for conciliation on behalf of the thirteen claimants the EEOC ultimately named
in its enforcement action. R. 936 (Dist. Ct. Op. at 11-16). In view of our holding that
the EEOC may properly proceed with class-based claims under the Teamsters
framework, we need only review the first of the district court’s conclusions, and we do
so de novo. See Hamilton v. Gen. Elec. Co., 556 F.3d 428, 433 (6th Cir. 2009).

In EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1100 (6th Cir. 1984), we
recognized that “the nature and extent of an EEOC investigation into a discrimination
claim is a matter within the discretion of th[e] agency” and, consequently, that it is
inappropriate for a “district court to inquire into the sufficiency of the Commission’s
investigation.” Instead, a district court should determine whether the EEOC made a
good-faith effort to conciliate the claims it now asserts, thereby providing the employer
with ample notice of the prospect of suit. Id. at 1102.

Despite the district court’s conclusions otherwise, it is clear that the EEOC
provided notice to Cintas that it was investigating class-wide instances of discrimination.
In fact, the EEOC’s reasonable-cause determination letter explicitly stated as much. See
R. 836-40 (EEOC Ltr.) (“Furthermore, like and related and growing out of this
investigation, there is reasonable cause to believe that [Cintas] has discriminated against
females as a class by failing to hire them as Route Sales Drivers/Services Sales
Representatives in violation of Title VII.”). Although the EEOC did not explicitly use
the “females as a class” language in the proposed conciliation agreement, the agreement
indicated that the EEOC sought class-based remedies by requesting relief for “other
similarly situated qualified female applicants who sought employment with [Cintas].”
R. 836-41 (Proposed Conciliation Agreement at 3, 4). Given that these documents were
provided to Cintas on the same day, there is no basis for concluding that Cintas was
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 26

unaware that the EEOC had investigated and was seeking to conciliate class-wide
claims.

Moreover, Cintas does not appear to refute the EEOC’s assertion that Cintas
expressed no interest to the EEOC in reaching a settlement on these claims. As we
recognized in Keco, “[t]he EEOC is under no duty to attempt further conciliation after
an employer rejects its offer.” 748 F.2d at 1101-02. Cintas’s three-year silence in
response to the EEOC’s offer of conciliation can reasonably be interpreted as rejection
and, accordingly, the EEOC acted appropriately in terminating conciliation and seeking
to vindicate the claims through suit.

In light of this Circuit’s decision in Keco, it is clear that the EEOC satisfied its
administrative prerequisites to suit. Accordingly, we reverse the district court’s contrary
determination.

F. Attorney Fees and Costs

The district court awarded Cintas attorney fees and costs because it deemed the
EEOC’s failure to comply with Title VII’s pre-litigation requirements to “constitute[]
unreasonable conduct under Christiansburg” Garment Co. v. EEOC, 434 U.S. 412, 422
(1978). R. 1079 (Dist. Ct. Op., 8/4/11, at 6). We review for abuse of discretion fee
awards granted by a district court in the context of Title VII. Noyes v. Channel Prods.,
Inc., 935 F.2d 806, 810 (6th Cir. 1991). Because we reverse the district court’s
determination that the EEOC did not comply with Title VII’s administrative
prerequisites to suit—the primary basis for the district court’s award of attorney
fees—we vacate the order granting attorney fees as well. This result is also mandated
in recognition that, in view of our rulings, Cintas is no longer a prevailing party.

However, even if our prior rulings did not command reversal of the award of
attorney fees and costs, we would conclude that the district court abused its discretion
in ordering the EEOC to pay Cintas attorney fees and costs. Awards of attorney fees and
costs are preserved typically only for “unreasonable, frivolous, meritless, or vexatious”
conduct. Christiansburg, 434 U.S. at 421. The district court identified the “egregious
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 27

and unreasonable conduct” to include: (1) the EEOC filing over a dozen losing motions;
(2) the EEOC’s failure to respond properly to Cintas’s discovery request; (3) the
EEOC’s “refus[al] to produce information regarding the identities of each individual”
plaintiff after dismissal of the EEOC’s pattern-or-practice claim; and (4) the EEOC’s
pursuit of claims on behalf of approximately forty individuals, despite its ultimate
withdrawal of those claims because they lacked merit. R. 1079 (Dist. Ct. Op., 8/04/11,
at 7-8). Standing alone, these actions do not seem so “unreasonable” so as to warrant
the district court’s ruling. Christiansburg, 434 U.S. at 422. Moreover, none of the legal
issues raised by the EEOC appear to have been “frivolous” or “groundless,” nor has the
EEOC engaged in “unreasonable” litigation strategies in pursuit of its claim. Id. at 421-
22; Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d 427, 438-39 (6th Cir. 2009). The
EEOC pursued its claim within the bounds of professional conduct and in the good-faith
belief that it had done what was necessary to satisfy its administrative prerequisites to
suit. Accordingly, we see no basis for awarding Cintas attorney fees and costs as the
district court has done here. See EEOC v. Bruno’s Rest., 13 F.3d 285, 288 (9th Cir.
1993) (suggesting that the proper inquiry is not whether the EEOC failed to conciliate
properly but “whether its belief that it had done so was reasonable”). We, therefore,
reverse the district court’s contrary determination.

III. CONCLUSION

In conclusion, we VACATE both judgments of the district court at issue in the
present appeals and REMAND the case for further proceedings consistent with this
opinion.
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 28

_______________________________________________

CONCURRING IN PART/DISSENTING IN PART
_______________________________________________

JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in
part. In my view, both the panel majority and the district court, although reaching
differing conclusions, have strayed into thorny issues of Title VII statutory construction
that need not be considered to resolve this case. In so doing, they have overlooked rather
basic and obvious principles that should be the basis for decision. Consequently, I join
only limited portions of the majority opinion and respectfully dissent from the
remainder.

The key to understanding the issues in this case is examining the precise
language of the EEOC’s pleadings. The EEOC’s Complaint in Intervention, filed
December 23, 2005, alleges that Cintas has intentionally discriminated against the three
named plaintiffs and “a class of women” by refusing to recruit and hire them as SSRs
because of their sex. No other elaboration is provided. Section 706 is only mentioned
as one of the statutory provisions under which the EEOC believed it was authorized to
bring suit. That first pleading was superseded by the EEOC’s First Amended Complaint,
filed August 20, 2009. The operative language of the First Amended Complaint with
respect to Cintas’s alleged discriminatory practices is identical to that of the Complaint
in Intervention, except that the class of women is more specifically defined as “a class
of women in the State of Michigan.”

When Cintas sought judgment on the pleadings, it focused on the issue of
whether a pattern-or-practice claim could be brought under § 706. But, as the majority
recognizes, the motion necessarily implicated the sufficiency of the pleadings to raise
a pattern-or-practice claim under any statutory provision. The district court focused on
the statutory construction issue and concluded that such a claim could not be brought
under § 706. The majority tackles both the question of whether § 706 is a proper vehicle
for assertion of a pattern-or-practice claim, holding that it is, and the pleading
sufficiency issue. With respect to the pleading sufficiency issue, the majority
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characterizes the pleading insufficiency as the plaintiffs’ failure to state their intention
to proceed under the Teamsters framework or to plead a prima facie case under that
framework. The majority determines that neither is required and therefore finds the
complaint sufficient.

The majority is correct, I believe, in its assessment that neither mention of
Teamsters nor the pleading of a prima facie case is required to bring a pattern-or-practice
claim. But the point on which I differ from the majority is its conclusion that, since
neither is required, the EEOC has therefore pled a pattern-or-practice claim. The
EEOC’s operative First Amended Complaint does not include even a shred of an
allegation suggesting a pattern-or-practice claim. Like the Complaint in Intervention
that it followed, it is fairly read only as pleading disparate treatment claims on behalf of
the named plaintiffs and the women comprising the alleged class. The EEOC’s
pleadings give no notice that it is pursuing some other theory of relief.

Implicit in the majority’s opinion is the notion that, because the complaint need
not state an intent to proceed under Teamsters or the facts that will constitute a prima
facie case, it is sufficient for the complaint to list the statutory provision under which suit
is brought. There are situations in which that premise is arguably correct. For example,
had the complaint sought relief under § 707, which specifically authorizes the EEOC to
bring pattern-or-practice claims and only relates to such claims, it might be a viable
argument that the statutory reference operates as notice of the claim brought. But the
premise is not sound where the statutory provision cited is § 706, which is not limited
to a particular type of employment discrimination claim.

Nor does mention of a “class” claim give notice of the nature of the claim. While
certainly most, perhaps virtually all, pattern-or-practice cases are “class” cases, not all
EEOC “class” cases are pattern-or-practice cases. A “class” case, from the EEOC’s
perspective, is simply a “suit[ ] on behalf of multiple aggrieved individuals who were
victims” of a discriminatory employment practice or policy. See U.S. Equal
Employment Opportunity Comm’n, A Study of the Litigation Program Fiscal
Years 1997–2001, at § B.2 (Aug. 13, 2002), available at
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 30

http://web.archive.org/web/20021023165009/http://www.eeoc.gov/litigation/study/st
udy.html. In a “class” case, the EEOC may proceed under the McDonnell-Douglas
paradigm to prove the discrimination claims of one or more individual charging parties
as a platform for obtaining relief for a broader, unidentified group of individuals.
See, e.g., E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1189, 1191–1200
(10th Cir. 2000) (analyzing a pregnancy discrimination suit brought by the EEOC on
behalf of four “[c]harging [p]arties and a group of similarly-situated pregnant
employees” under McDonnell-Douglas and rejecting analogies to pattern-or-practice
cases). Thus, the mere mention that relief is sought on behalf of a “class” and the prayer
for “class” relief add nothing as far as notice that a pattern-or-practice claim is being
pursued.

The complaint here simply does not set forth sufficient facts to make the EEOC’s
claim for relief plausible. As the majority notes, “[T]he pleading requirements for Title
VII claims are no different than those for other claims; they are subject to the same
requirement of setting forth ‘enough facts to state a claim to relief that is plausible on its
face.’” Maj. Op. at 15 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The Twombly standard is not met, in my view.

The majority seeks to excuse the EEOC’s omission by saying that it may have
relied on the complaint of the individual plaintiffs to allege a pattern or practice of
discrimination. The operative complaint of the individual plaintiffs, the Second
Amended Complaint, filed September 12, 2005, does contain allegations sufficient to
state such a claim. But I know of no reason that the EEOC should be able to rely on this
complaint rather than advising the court and other parties in straightforward fashion
which claims brought by individual parties it intends to pursue. See 5A Charles Alan
Wright et al., Federal Practice & Procedure § 1326 (3d ed. 2004) (“[R]eferences to
prior allegations must be direct and explicit, in order to enable the responding party to
ascertain the nature and extent of the incorporation.”)
Nos. 10-2629/11-2057 Serrano et al. v. Cintas Corp., et al. Page 31

Because the EEOC’s complaint fails to state a pattern-or-practice claim, Cintas’s
motion was properly granted. The extensive analysis of the majority with respect to
§§ 706 and 707 is simply unnecessary, and I would not reach that issue here.

The majority’s treatment of the denial of the motion to amend, the discovery
issues, the individual claims and, in part, the attorneys fees issue is premised on its ruling
on the pattern-or-practice issue. Because I disagree with the majority’s resolution of the
pattern-or-practice issue, I might resolve some of the other issues differently. But it
seems an unproductive use of judicial resources for me to analyze each of those issues
in view of my preferred outcome in the case. My view on the pattern-or-practice issue,
however, precludes my joining my fellow panelists’ resolution of those issues. I do join
the majority, however, in concluding that the EEOC satisfied its administrative
prerequisites to suit and that, whatever the resolution of the pattern-or-practice issue, the
district court abused its discretion in ordering the EEOC to pay Cintas’s attorneys fees
and costs.