Supreme Court of the United States - law.siu.edu · NO. 14-1184 IN THE Supreme Court of the United...

NO. 14-1184

IN THE

Supreme Court of the United States

October Term, 2014

SUNSET MANORCARE, LLC,

Petitioner,

v.

EQUAL EMPLOYMENT OPPORUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the Thirteenth

Circuit Federal Court of Appeals

BRIEF FOR THE PETITIONER

Attorneys for Petitioner

Team 1412

ii

QUESTIONS PRESENTED

I. Whether the Thirteenth Circuit erroneously held as follows: (1) the EEOC’s

conciliation efforts with Sunset are unreviewable, despite Congress’s intent that

voluntary compliance be the preferred means of achieving Title VII’s objectives,

and (2) that the subjective good faith standard is an appropriate standard of

review as opposed to the fixed and objective three-pronged approach?

II. Whether the Thirteenth Circuit erroneously held that, as a reasonable

accommodation under the ADA, Sunset was required to violate its

nondiscriminatory “Best Qualified” hiring policy by transferring Fernandez to

the Pharmacy Technician position she desired?

iii

TABLE OF CONTENTS

Questions Presented…………………………………………………………………………..ii

Table of Contents……………………...………………………………………………………iii

Table of Authorities…………………………..…………………………………………….....v

Statement of the Case………..………………………….….………………………………...1

Summary of Argument…………….………………………………………………………….4

Argument……………………………………………………………………………………......6

I. THE EEOC’S CONCILIATION EFFORTS WITH SUNSET ARE

JUDICIALLY REVIEWABLE UNDER THE THREE-PRONGED TEST

BECAUSE CONGRESS DESIRED VOLUNTARY COMPLIANCE TO BE

THE PREFERRED METHOD OF ACHIEVING TITLE VII’S

OBJECTIVES…………………………………………………………………………..6

A. The EEOC’s Conciliation Efforts With Sunset are Judicially

Reviewable Because Neither Exception to the APA Applies……………8

1. There is no Evidence Congress Intended to Preclude Judicial

Review of the EEOC’s Conciliation Efforts With Sunset....……..9

2. Title VII’s Express Language Mandates the EEOC Engage in

Conciliation With Sunset..............................................................16

B. The EEOC Did Not Satisfy its Duty to Conciliate With Sunset Under

Either Good Faith Standard………………………………………………..18

1. The EEOC Did Not Satisfy its Conciliation Duty Under the

Three-Pronged Approach Because it Refused to Clearly Define

for Sunset its Cause of Action Under Title VII and Refused to

Reasonably Respond to Sunset’s Conciliation Attempts............20

2. The EEOC Did Not Satisfy its Conciliation Obligation Under the

Subjective Good Faith Standard Because Sunset Did Not

Expressly Reject the EEOC’s Conciliation Efforts......................23

II. SUNSET DID NOT HAVE TO TRANSFER FERNANDEZ TO THE

“PHARMACY TECHNICIAN” POSITION BECAUSE IT WAS A

PRESUMPTIVELY UNREASONABLE ACCOMMODATION AND WOULD

CAUSE UNDUE HARDSHIP……………………………………………………....25

iv

A. Requiring Sunset to Disregard its Nondiscriminatory Policy That

Creates and Satisfies Employee Expectations of Fair and Consistent

Treatment Would Undermine the ADA’s Objectives............................27

B. Violating Sunset’s “Best Qualified” Policy Would Negatively Impact

Another Employee and Undermine Safe and Cost-Efficient Patient

Care....………………………………………………………………………….33

Conclusion……………………………………………………………………………………..40

Appendix A.…………………………………………………...………………………………...a

Appendix B.…………………………………………………...………………………………...b

Appendix C.…………………………………………………...…………………………………c

Appendix D.…………………………………………………...………………………………...d

Appendix E.…………………………………………………...…………………………………f

v

TABLE OF AUTHORITIES

Supreme Court Cases

Abbott Labs. v. Gardner,

387 U.S 136 (1967)…………………………………………………………….9-10, 12

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974)..…………………………………………………………………7, 9

Barlow v. Collins,

397 U.S. 159 (1970)..……………………………………………………………..10, 12

Bennett v. Spear,

520 U.S. 154 (1997)..……………………………………………………………..16-18

Block v. Cmty. Nutrition Inst.,

467 U.S. 340 (1984)..……………………………………………………………..10-11

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986)..…………………………………………………………………..8

Brock v. Pierce Cnty.,

476 U.S. 253 (1986)..……………………………………………………………..17-18

Brownell v. We Shung,

352 U.S. 180 (1956)..…………………………………………………………………..9

Dunlop v. Bachowski,

421 U.S 560 (1975)..……………………………………………………………..10, 12

Firefighters v. Cleveland,

478 U.S. 501 (1986)..………………………………………………………………7, 14

Ford Motor Co. v. EEOC,

458 U.S. 219 (1982)..…………………………………………………………………..7

Hallstrom v. Tillamook Cnty.,

493 U.S. 20 (1989)..………………………………………………………………….13

Heckler v. Chaney,

470 U.S. 821 (1985)..…………………………………………………………….16, 18

Jones v. Bock,

549 U.S. 199 (2007)…………………………………………………………………..13

vi

Marcello v. Bonds,

349 U.S. 302 (1955).………………………………………………………………17-18

Mohasco Corp. v. Silver,

447 U.S. 807, 826 (1980)..……………………………………………………………13

Occidental Life Ins. Co. of California v. EEOC,

432 U.S. 355 (1977)..…………………………………………………………………14

Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154 (2010).………………………………………………………………….13

Ricci v. DeStefano,

557, U.S. 557 (2009).………………………………………………………………7, 14

Rusk v. Cort,

369 U.S. 367 (1962).……………………………………………………………………9

Sackett v. EPA,

32 S. Ct. 1367 (2012)..……………………………………………………………10, 12

Shaughnessy v. Pedreiro,

349 U.S. 48 (1955)..…………………………………………………………………….9

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977)..…………………………………………………………………..34

Traynor v. Turnage,

485 U.S. 535 (1988)..…………………………………………………………………13

U.S. Airways, Inc. v. Barnett,

535 U.S. 391 (2007)..……………………………………………………………..27-35

United Air Lines v. Evans,

431 U.S. 553 (1977)..…………………………………………………………………13

United States v. Zucca,

351 U.S. 91 (1956)..…………………………………………………………………..13

Appellate Court Cases

EEOC v. Asplundh Tree Expert Co.,

340 F.3d 1256 (11th Cir. 2003)..…………………………………………………8, 19

EEOC v. CRST Van Expedited,

679 F.3d 657 (8th Cir. 2012)..………………………………………………………15

vii

EEOC v. Humiston-Keeling, Inc.,

227 F.3d 1024 (7th Cir. 2000)..…………………………………………………….31

EEOC v. Johnson & Higgins, Inc.,

91 F.3d 1529 (2d Cir. 1996)..…………………………………………………….8, 19

EEOC v. Keco Indus., Inc.,

748 F.2d 1097 (6th Cir. 1984)…..……………………………………………….8, 19

EEOC v. Klingler Elec. Corp,

363 F.2d 104 (5th Cir. 1981)...……………………..……………………………….20

EEOC v. Mach Min., LLC,

738 F.3d 171 (7th Cir. 2013)..……………………………………………………….9

EEOC v. Pet, Inc., Funsten Nut Div.,

612 F.2d 1001 (5th Cir. 1980)..……………………………………………..15, 20-21

EEOC v. Radiator Specialty Co.,

610 F.2d 178 (4th Cir. 1979)..………………………………………………..8, 19-20

EEOC v. Sara Lee Corp.,

237 F.3d 349 (4th Cir. 2001)..…………………………………………………….…28

EEOC v. Sears, Roebuck & Co.,

650 F.2d 14, 18-19 (2d Cir. 1987)..………………………………………………....15

EEOC v. United Airlines, Inc.,

693 F.3d 760 (7th Cir. 2012), cert. denied, 133 S. Ct. 2734 (2013)……26-27, 33

EEOC v. Zia Co.,

582 F.2d 533 (10th Cir. 1978)..………………………………….8, 15, 19-20, 23-24

Hedrick v. W. Reserve Care Sys.,

355 F.3d 444 (6th Cir. 2004)………………………………………………………...28

Huber v. Wal-Mart Stores, Inc.,

486 F.3d 480 (8th Cir. 2007)..………………………………………….26, 30-33, 40

Jordan Hosp. v. Shalala,

276 F.3d 72 (1st Cir. 2004)..…………………………………………………….11-12

Kellogg v. Union Pac. R.R. Co.,

233 F.3d 1083 (8th Cir. 2000)..……………………………………………………..28

Marshall v. Sun Oil Co. (Delaware),

605 F.2d 1331 (5th Cir.1979)..……………………………………………...19, 20-23

viii

Patterson v. American Tobacco Corp,

535 F.2d 257 (4th Cir. 1976)..………………………………………………15, 24-25

Serrano v. Cintas Corp.,

699 F.3d 884 (6th Cir. 2012), cert. denied, 134 S. Ct. 92 (2013)……………8, 19

Shapiro v. Township of Lakewood,

292 F.3d 356 (3d Cir. 2002).……………………………………………………..26-27

Terrell v. USAir,

132 F.3d 621 (11th Cir. 1998).………………………………………………….…..28

Turco v. Hoechst Celanese Corp.,

101 F.3d 1090 (5th Cir. 1996)..……………………………………………………..28

Wernick v. Fed. Reserve Bank of NY,

91 F.3d 379 (2d Cir. 1996)..……………………………………………………….…28

District Court Cases

EEOC v. Bimbo Bakeries USA, Inc.,

No. 1:09-CV-1872, 2010 WL 598641 (M.D. Pa. Feb. 17, 2010)………………...15

EEOC v. Bloomberg, L.P.,

751 F. Supp. 2d 628 (S.D.N.Y. 2010)...…………………………………………….15

EEOC v. Die Fliedermaus, LLC,

77 F. Supp. 2d 460 (S.D.N.Y. 1999).……………………………………………….15

EEOC v. Dillard’s Inc.,

No., 08-CV-1780-IEG(PCL), 2011 WL 2784516 (S.D. Cal. July 14, 2011)…...15

EEOC v. First Midwest Bank, N.A.,

14 F. Supp. 2d 1028 (N.D. Ill. 1998)..……………………………………………...15

EEOC v. Golden Lender Fin. Grp.,

No. 99 Civ. 8591(JGK), 2000 WL 381426, (S.D.N.Y. Apr. 13, 2000)………….15

EEOC v. High Speed Enter., Inc.,

No. CV-08-01789-PHX-ROS, 2010 WL 8367452 (D. Ariz. Sept. 30, 2010)….15

EEOC v. La Rana Haw., LLC.,

888 F. Supp. 2d 1019 (D. Haw. 2012)..…………………………………………….15

EEOC v. Original Honeybaked Ham Co. of Ga. Inc.,

918 F. Supp. 2d 1171 (D. Col. 2013)….……………………………………………15

ix

EEOC v. Pac. Mar. Ass’n,

188 F.R.D. 379 (D. Or. 1999)..……………………………………………………....15

EEOC v. Reeves,

No. CV0010515DT(RZX), 2002 WL 1151459 (C.D. Cal. 2002), rev’d on other

grounds, 68 Fed. Appx. 830 (9th Cir. 2003)…..………………………………….15

EEOC v. Ruby Tuesday, Inc.,

919 F. Supp. 2d 587 (W.D. Pa. 2013)...…………………………………………….15

EEOC v. Swissport Fueling, Inc.,

915 F. Supp. 2d. 1005 (D. Ariz. 2013)...……………………………………………15

EEOC v. UMB Bank, N.A.,

432 F. Supp. 2d 948 (W.D. Mo. 2006)…..………………………………………….15

Statutes

5 U.S.C. § 701(a)..………………………………………………...………………………..9, 18

5 U.S.C. § 702…..…………………………………………………………………………….8-9

16 U.S.C. § 1536(a)(2)...…………………………………………………………………..8, 17

42 U.S.C. § 12111(10)..…………………………………………………………………..33, 36

42 U.S.C. § 12111(10)(B)(iv).………………………………………………………………..36

42 U.S.C. § 12112(a)..………………………………………………………………………...26

42 U.S.C. § 12112(5)(A)..…………………………………………………………………….26

42 U.S.C. § 12117....……………………………………………………………………...26, 34

42 U.S.C. § 1359ww(d)(10)(C)(iii)(II)………………………………………………………26

42 U.S.C. § 2000e-5(b)...……………………………………………………………...9, 10, 16

42 U.S.C. § 2000e-5(e)..………………………………………………………………………..9

42 U.S.C. § 2000e-5(f)(1)..……………………………………………………………………..9

Federal Rules of Civil Procedure

Fed. R. Civ. P. 5.2(d)..………………………………………………………………………..16

x

Congressional Sessions

Civil Rights Act of 1964, Pub. L. No. 88-352, § 706(a), 78 Stat. 241, 259…………....16

Secondary Sources

Charles Conway, Ordinarily Reasonable: Using the Supreme Court’s Barnett

Analysis to Clarify Preferential Treatment Under the Americans With

Disabilities Act, 22 Am. U. J. Gender Soc. Pol’y & L. 721 (2014)……………..28

Michael J. Zimmer et al., Cases and Materials on Employment Discrimination (8th

ed. 2013)………………………………………………………………………………..34

Stacy M. Hickox, Transfer as an Accommodation: Standards From Discrimination

Cases and Theory, 62 Ark. L. Rev. 195 (2009)…………………………………...28

Other Authorities

Acad. of Managed Care Pharmacy, The Academy of Managed Care Pharmacy’s

Concepts in Managed Care Pharmacy (June 2010),

www.amcp.org/WorkArea/DownloadAsset.aspx?id=9300…………………..37-39

Bart Windrum, It’s Time to Account for Medical Error in “Top Causes of Death”

Charts,” Journal of Participatory Med. (Apr. 24, 2013),

www.jopm.org/opinion/commentary/2013/04/24/it’s-time-to-account-for-

medical-error-in-top-ten-causes-of-death-charts/………………………………..37

Bureau of Labor Statistics, U.S. Dep’t of Labor, Occupational Outlook Handbook,

2014-15 Edition, Pharmacy Technicians, (Jan. 8, 2014),

http://www.bls.gov/ooh/healthcare/pharmacy-technicians.htm……………….36

EEOC, Enforcement & Litigation Statistics: All Statutes FY 1997 – FY 2013,

http://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm (last visited Sep. 24,

2014)…………………………………………………………………………………….14

EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship

Under the Americans With Disabilities Act, (Oct. 17, 2002),

http://www.eeoc.gov/policy/docs/accommodation.html……………..26-27, 29, 39

Ka-Chun Cheung et al., Medication Errors: The Importance of Safe Dispensing,

U.S. Library of Med. Nat’l Inst. of Health (June 2009),

www.ncbi.nlm.nih.gov/pmc/articles/PMC2723208………………………….37, 40

NCCMERP, About Medication Errors (2014), available at www.nccmerp.org/about

MedErrors.html………………………………………………………………………37

xi

Pharmacy Technician Schools, Pharmacy Technician Job Description (Sep. 13,

2014), www.pharmacytechs.net/resources/career-description/………………..36

PTCB, About PTCB (Sep. 13, 2014), available at www.ptcb.org/aboutptcb#.V

BR5A0KKtUQ……………………………………………………………………..38-39

1

STATEMENT OF THE CASE

Lucy Fernandez (Fernandez) worked at Sunset ManorCare, LLC (Sunset) as

a Certified Nursing Assistant (CNA) for two years. (R. at 2.)1 Sunset is an assisted

living facility offering a multitude of services including daily living necessities,

health services, medication administration, housekeeping, recreational services,

and transportation. (R. at 1.) Sunset employs thousands of people in over 400

facilities across 29 states. (R. at 1.)

Fernandez injured her back vacationing in Colorado and could no longer

perform essential CNA duties due to a ten-pound lifting restriction. (R. at 2.) As a

result, Fernandez contacted Human Resources seeking to transfer to an open

Pharmacy Technician position. (R. at 2.) Fernandez did not meet the preferred

qualifications for the desired position because she did not have a Pharmacy

Technician certificate. (R. at 2.) The Pharmacy Technician certificate could be

earned through on the job training. (R. at 2.)

Another Sunset employee also applied for the full-time Pharmacy Technician

job. (R. at 2-3.) The other applicant worked at Sunset for four years, had a

Pharmacy Technician certificate, and had one of the highest evaluation scores in the

company. (R. at 2-3.) Moreover, the other applicant already worked part-time in

the pharmacy hoping to compete for a full-time position when one opened up. (R. at

3.)

Sunset, who utilized a “Best Qualified” hiring policy, ultimately determined

the other applicant was the most qualified for the Pharmacy Technician job and

denied Fernandez’s transfer request; however, it offered her an Educational

1 References to the record will be cited as (R. at ___.)

2

Services Aide job instead. (R. at 2-3.) Although the Educational Services Aide job

paid $4.25 per hour less than Fernandez’s CNA position, it was the most equivalent

open position for which she was the most qualified. (R. at 3.)

As a result, Fernandez filed a Complaint with the Equal Employment

Opportunity Commission (EEOC), alleging that Sunset had discriminated against

her by failing to adhere to her requested accommodation due to her disability. (R.

at 3.) The EEOC commenced an investigation, requesting information regarding

Sunset’s “Best Qualified” hiring policy. (R. at 2-3.) Sunset responded that its policy

considered objective factors including length of service, job evaluation scores, and

skills required for a position. (R. at 2.) Further, once an applicant was hired, there

was a six week “probationary” period to ensure that there were no patient safety

concerns. (R. at 2.) Sunset informed its employees of the policy both through its

Employee Handbook and during the initial hiring process. (R. at 3.) Sunset’s policy

uniformly applied to all of its employees with limited exceptions, including certain

management and administrative positions. (R. at 3.) Hence, Sunset’s employees

developed expectations regarding how the policy operated for promotions and

lateral transfers. (R. at 3.)

On April 5, 2012, the EEOC found there was reasonable cause to believe that

Sunset discriminated against Fernandez under the Americans with Disabilities Act

(ADA). (R. at 3.) As a result, the EEOC proposed conciliation and presented Sunset

with an agreement requiring it admit to discriminating against Fernandez, admit

its “Best Qualified” policy was illegal, and adopt a transfer policy that the EEOC

drafted. (R. at 3.)

3

On April 13, 2012, Sunset responded that its policy was not unlawful and

requested that the EEOC provide any and all information regarding the alleged

discrimination. (R. at 4.) While Sunset was unwilling to sign the EEOC’s initial

agreement under the circumstances, it was more than willing to discuss any case of

alleged discrimination. (R. at 4.) The EEOC ignored Sunset’s request for

information, and on April 20, 2012, informed Sunset that it was terminating

conciliation efforts because it would waste the EEOC’s limited resources. (R. at 4.)

Shortly thereafter, the EEOC filed suit against Sunset, alleging that Sunset

had discriminated under the ADA “against a class of employees across . . . [its] . . .

entire operations, by the operations of . . . [its] . . . Transfer policy, and specifically

as to employee Lucy Fernandez.” (R. at 4.) Sunset motioned to dismiss the EEOC’s

claims, arguing that the EEOC failed to meet its good faith conciliation obligation.

(R. at 4.) Moreover, Sunset argued that even if filing suit was proper, it reasonably

accommodated Fernandez with her new position. (R. at 4.)

The EEOC moved for Summary Judgment on Sunset’s affirmative defense,

arguing that a lack good faith conciliation efforts is not an affirmative defense

because no process for judicial review is outlined in the ADA. (R. at 4.)

Alternatively, the EEOC argued that no genuine issue of material fact or law

existed regarding its good faith conciliation efforts, thus, Summary Judgment was

proper. (R. at 4.) The EEOC also argued that Sunset’s “Best Qualified” policy

undisputedly violated the ADA because it prevented a qualified disabled employee

from transferring to a vacant position. (R. at 4-5.) Sunset opposed the EEOC’s

latter motion and filed its own cross-motion arguing that there was no genuine

issue of material fact or law in dispute because its policy was legal. (R. at 5.)

4

The United States District Court for the Southern District of New Canada

found that the three-pronged test was the most appropriate standard to apply, but

it also determined that dismissal was too harsh a penalty. (R. at 6.) The court

granted the EEOC’s Summary Judgment motion on Sunset’s affirmative defense

and noted that a stay of the proceedings was the proper approach. (R. at 6.) The

court dismissed the EEOC’s reasonable accommodation claim based on Sunset’s

cross-motion. (R. at 8.) Ultimately, the court found that the ADA did not require

Sunset to automatically reassign Fernandez to the Pharmacy Technician job merely

because she met the minimum qualifications considering there was a more qualified

applicant. (R. at 8.)

The Thirteenth Circuit of Appeals affirmed dismissal of Sunset’s affirmative

defense but found that the lower court should not have reviewed the EEOC’s

conciliation efforts. (R. at 13-14.) Specifically, the court held that the statutory

language emphasized that conciliation was within the EEOC’s discretion and that a

court cannot determine whether the EEOC has met the required standard. (R. at

13-14.) The court reversed dismissal of the EEOC’s Complaint, however, noting

that the court should have granted the EEOC’s Summary Judgment motion because

Sunset did not produce any evidence of undue hardship or expense concerning the

requested accommodation. (R. at 13.)

SUMMARY OF THE ARGUMENT

I. The EEOC’s Conciliation Efforts with Sunset Are Judicially Reviewable

Under the Objective Three-Pronged Test.

The EEOC’s conciliation efforts with Sunset are judicially reviewable under

the objective three-pronged test because Congress desired voluntary compliance to

5

be the preferred means of achieving Title VII’s objectives. The Administrative

Procedure Act authorizes review of the EEOC’s conciliation efforts with Sunset

because Congress did not intend to preclude review, nor are conciliation efforts

solely within the EEOC’s discretion. First, Title VII’s express language and

statutory scheme do not suggest Congress intended to preclude review.

Furthermore, the imperative “shall” contained in Title VII’s conciliation provision

eliminates the possibility that the EEOC’s conciliation efforts with Sunset were

solely within its discretion.

For more than three decades, Courts have applied two variations of a good

faith standard in reviewing the adequacy of the EEOC’s conciliation efforts, and

while the three-pronged test is more appropriate, neither standard has been

satisfied here. The three-pronged test is the proper standard because of its

objectivity and procedural focus, which fosters Congress’s voluntary compliance

objective. Conversely, the subjective good faith test does not ensure Congress’s

voluntary compliance objective is enforced and tempts courts to improperly delve

into the substance of conciliation as opposed to procedure.

The EEOC did not satisfy its conciliation obligation under the three-pronged

test because it refused to clearly define for Sunset its cause of action under Title VII

and refused to reasonably respond to Sunset’s conciliation attempts. Likewise, the

EEOC did not satisfy its conciliation duty under the subjective good faith test

because Sunset did not expressly reject the EEOC’s conciliation efforts.

6

II. The ADA Did Not Require Sunset to Violate its “Best Qualified”

Policy by Transferring Fernandez to the Pharmacy Technician

Position as a Reasonable Accommodation.

Sunset did not have to violate its “Best Qualified” hiring policy by

transferring Fernandez to the Pharmacy Technician job because it was a

presumptively unreasonable accommodation. Specifically, transferring Fernandez

to the desired position would undermine Sunset’s employees’ expectations of fair

and consistent treatment and conflict with the ADA’s goal of creating equal

employment opportunities for all – disabled and nondisabled alike. Even if this

Court were to hold Fernandez’s requested accommodation was presumptively

reasonable, it would still cause Sunset undue hardship. First, the more qualified

applicant who ultimately received the Pharmacy Technician job would be unfairly

impacted. Moreover, considering Sunset’s large scale business operations in the

healthcare industry, it would be poor public policy to undermine Sunset’s ability to

provide the safest and most cost-efficient patient care whenever possible.

ARGUMENT

I. THE EEOC’S CONCILIATION EFFORTS WITH SUNSET ARE

JUDICIALLY REVIEWABLE UNDER THE THREE-PRONGED TEST

BECAUSE CONGRESS DESIRED VOLUNTARY COMPLIANCE TO

BE THE PREFERRED METHOD OF ACHIEVING TITLE VII’S

OBJECTIVES.

The Thirteenth Circuit erroneously held the EEOC’s conciliation efforts with

Sunset were unreviewable and that there was no meaningful standard of review to

apply. (R. at 14.) The EEOC’s conciliation efforts with Sunset are reviewable under

the three-pronged test because Congress intended for “voluntary compliance to be

the preferred means of achieving” Title VII’s objectives. Ricci v. DeStefano, 557

U.S. 557, 581 (2009), quoting Firefighters v. Cleveland, 478 U.S. 501, 515 (1986).

7

“This view is shared by the . . . [EEOC] . . . which has promulgated guidelines

setting forth its understanding that ‘Congress strongly encouraged employers . . . to

act on a voluntary basis to modify employment practices and systems which

constituted barriers to equal employment opportunity . . . .” Firefighters, 478 U.S.

at 515 (citation omitted). The primary way voluntary compliance is achieved is

through Title VII’s mandate that the EEOC engage in conciliation before filing suit.

See Ford Motor Co. v. EEOC, 458 U.S. 219, 228 (1982). Conciliation cannot operate

as Congress intended unless the EEOC executes its statutory duty reasonably and

in good faith. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974).

Hence, reviewing the EEOC’s conciliation efforts with Sunset is proper

because, as this Court articulated: “Without judicial review of agency action,

statutory limits would be naught but empty words.” Bowen v. Mich. Acad. of

Family Physicians, 476 U.S. 667, 672 n.3 (1986) (citation omitted). The

Administrative Procedure Act (APA) authorizes review of the EEOC’s conciliation

efforts with Sunset because Congress did not intend to preclude review, nor are

conciliation efforts within the sole discretion of the EEOC. See 16 U.S.C. §

1536(a)(2) § 702. Moreover, for more than three decades, courts have applied two

variations of a good faith standard in reviewing the adequacy of the EEOC’s

conciliation efforts, including a three-pronged test that is consistent with Congress’s

voluntary compliance objective. See, e.g., EEOC v. Johnson & Higgins, Inc., 91 F.3d

1529, 1534-35 (2d. Cir. 1996) (mandating EEOC satisfy three-pronged good faith

test); EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979) (applying

subjective good faith test); EEOC v. Agro Distribution, LLC, 555 F.3d 462, 468 (5th

Cir. 2009) (using more objective three-pronged test to evaluate EEOC’s conciliation

8

efforts); Serrano v. Cintas Corp., 699 F.3d 884, 904 (6th Cir. 2012) (requiring

reasonableness); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984)

(expecting EEOC to make genuine effort to conciliate before filing suit); EEOC v.

Zia Co., 582 F.2d 527, 533 (10th Cir. 1978) (engaging in subjective good faith

inquiry); EEOC v. Asplundh Tree Expert, 340 F.3d 1256, 1259 (11th Cir. 2003)

(holding EEOC must satisfy three elements to have acted in good faith). The EEOC

here did not satisfy its conciliation duty under either standard.

A. The EEOC’s Conciliation Efforts With Sunset are Judicially Reviewable

Because Neither Exception to the APA Applies.

The District Court properly found that the EEOC’s conciliation efforts with

Sunset were reviewable because under the APA, “a person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. §

702. Under 42 U.S.C. § 2000e-5(b), the EEOC “shall endeavor to eliminate any . . .

alleged unlawful employment practice by informal methods of conference,

conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). Title VII permits the EEOC

to bring suit against Sunset if, and only if, it was unable to secure an acceptable

conciliation agreement within thirty days. 42 U.S.C. § 2000e-5(e); Alexander, 415

U.S. at 44.

Accordingly, judicial review of the EEOC’s actions is strongly presumed

where its filing suit before engaging in good faith conciliation adversely affected

Sunset. See EEOC v. Mach Mining, LLC, 738 F.3d 171, 177 (7th Cir. 2013). Under

the APA, the only time reviewing the EEOC’s conciliation efforts with Sunset would

not be strongly presumed is if: (1) Title VII precluded judicial review, or (2) the

9

EEOC’s conciliation efforts with Sunset were committed solely to its discretion by

law. 5 U.S.C. § 701(a). This Court has repeatedly emphasized that it “will not hold

the broad remedial provisions of the [APA] are unavailable to review administrative

decisions . . . in the absence of clear and convincing evidence that Congress so

intended.” Rusk v. Cort, 369 U.S. 367, 379-80 (1962). See also Abbott Labs. v.

Gardner, 387 U.S. 136, 138 (1967) (“[O]nly upon a showing of ‘clear and convincing

evidence of a contrary legislative intent should the courts restrict access to judicial

review.”); Brownell v. We Shung, 352 U.S. 180, 185 (1956) (indicating statute must

clearly state APA does not apply); Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)

(noting APA should be given hospitable interpretation); Marcello v. Bonds, 349 U.S.

302, 310 (1955) (“Exemptions from the terms of the [APA] are not lightly to be

presumed.”). Title VII’s text and statutory scheme highlight Congress’s intent that

the EEOC’s conciliation efforts be judicially reviewable. Moreover, the relevant text

of 42 U.S.C. § 2000e-5(b) illustrates that the EEOC’s conciliation efforts are not

solely committed to its discretion.

1. There is no Evidence Congress Intended to Preclude Judicial Review of

the EEOC’s Conciliation Efforts With Sunset.

The Thirteenth Circuit improperly held that the EEOC’s conciliation efforts

with Sunset were not reviewable because Title VII’s express language does not

preclude review, and review is consistent with the statutory scheme. (R. at 14.)

This Court has made clear: “Whether and to what extent a particular statute

precludes judicial review is determined not only from its express language, but also

from the structure of the statutory scheme, its objectives, its legislative history, and

the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst.,

10

467 U.S. 340, 345 (1984). The preclusion of judicial review of administrative action

is not to be inferred lightly. Barlow v. Collins, 397 U.S. 159, 166 (1970).

Without express preclusion language, the EEOC “bears the heavy burden of

overcoming the strong presumption that Congress did not mean to prohibit all

judicial review of [its conciliation efforts with Sunset] . . . . ” Dunlop v. Bachowski,

421 U.S 560, 567 (1975). Refusing an aggrieved party’s request for review of an

agency’s decision will not be renounced without a persuasive reason to believe that

preclusion was Congress’s intent. Id. at 561, quoting Abbott Labs., 387 U.S. at 140.

In Sackett v. EPA, for example, this Court determined that a United States

Environmental Protection Agency (EPA) decision was reviewable based on the

Clean Water Act’s (CWA) statutory scheme and express language. 132 S. Ct. 1367,

1368 (2012). In Sackett, the plaintiffs received an order from the EPA to comply

with the CWA after they filled about one half acre of their land with dirt while

preparing to build a house. Id. This Court held the EPA’s decision was reviewable,

noting that no part of the CWA explicitly precluded judicial review. Id. at 1372.

Furthermore, this Court acknowledged nothing in the CWA’s statutory scheme

suggested that Congress intended to preclude review. Id. at 1374. Specifically, this

Court said there is “no reason to think that the Clean Water Act was uniquely

designed to enable the strong-arming of regulated parties into ‘voluntary

compliance’ without the opportunity for judicial review . . . .” Id.

On the other hand, this Court held in Block that, based on the Agricultural

Marketing Agreement Act of 1937’s (Act) statutory scheme, ultimate consumers of

dairy products were not entitled to judicial review of the Secretary of Agriculture’s

(Secretary) milk market orders. 467 U.S. at 341. Specifically, this Court recognized

11

that the Act’s statutory scheme favored judicial preclusion because it only

contemplated a cooperative venture among the Secretary, producers, and handlers -

- not end consumers. Id. Significantly, this Court noted that the Act did not

provide for consumer participation and was not designed with consumers in mind,

which made Congress’s intent for consumers not to participate easily discernible.

Id. Allowing consumer suits would not only have undermined Congress’s intent,

but it would have provided a formal mechanism for disrupting it. Id.

Likewise, in Jordan Hosp. v. Shalala, the First Circuit held that, based on the

Medicare Act’s express language and overall scheme, a Health Care Financing

Administration (HCFA) decision was not judicially reviewable. 276 F.3d 72, 72-75

(1st Cir. 2004). In Jordan, the plaintiff was aggrieved by the HCFA dismissing a

geographic reclassification request that would have resulted in higher Medicare

reimbursements. Id. The Medicare Act provided in pertinent part that “[t]he

decision of the [Administrator] shall be final and shall not be subject to judicial

review.” Id. at 76, quoting 42 U.S.C. § 1395ww(d)(10)(C)(iii)(II). The court

ultimately concluded that the statutory language containing the phrase “shall not

be subject to judicial review” was so clear and plain that Congress undoubtedly

intended to preclude review. Id. at 77. Additionally, the court propounded that

unreviewability was consistent with the Medicare Act’s statutory scheme. Id. For

example, the court acknowledged unreviewability allowed parties to make proper

wage index and budget adjustments and allowed rate publication sixty days before

the start of a new fiscal year; unreviewability also promoted efficiency and avoided

frustrating Congress’s intent that there be finality for financial planning. Id. at 75.

12

The EEOC’s conciliation efforts with Sunset are judicially reviewable

because, like in Sackett, Title VII’s express language and statutory scheme do not

suggest Congress intended to preclude review. 132 S. Ct. at 1368. In its decision,

the Thirteenth Circuit does not imply its holding was based on Congress’s

discernible intent to preclude review; rather, the court focused on Title VII not

expressly providing for review. (R. at 14.) The court’s focus was misplaced,

however, because this Court strongly presumes administrative agency decisions are

reviewable. See, e.g., Dunlop, 421 U.S. at 567; Barlow, 397 U.S. at 166; Abbott

Labs., 387 U.S. at 140. Thus, the Thirteenth Circuit was required to assess

whether Congress took affirmative steps demonstrating its intent to prohibit review

and not the other way around. See, e.g., Dunlop, 421 U.S. at 567; Barlow, 397 U.S.

at 166; Abbott Labs., 387 U.S. at 140. Unlike in Jordan, Title VII’s language does

not plainly and clearly reveal Congress’s intent that the EEOC’s conciliation efforts

with Sunset be unreviewable; therefore, review is proper. 276 F.3d at 72-75.

While Title VII’s express language does not provide that the EEOC’s failure

to satisfy its conciliation precondition can be used as an affirmative defense by

Sunset, that argument is unpersuasive; this Court has consistently held that

statutory preconditions to suit are judicially reviewable, and noncompliance is a

valid defense. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989), quoting

Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) (“[I]n the long run, experience

teaches that strict adherence to the procedural requirements specified by the

legislature is the best guarantee of evenhanded administration of the law.”).

Specifically, this Court has explained that, “if an action is barred by the terms of a

statute, it must be dismissed.” Hallstrom, 493 U.S. at 31. See also Reed Elsevier,

13

Inc. v. Muchnick, 559 U.S. 154, 157-58 (2010) (holding parties must file copyright

registration before filing infringement claim); Jones v. Bock, 549 U.S. 199, 211-12

(2007) (providing noncompliance with administrative exhaustion requirement of

Prison Litigation Reform Act warrants dismissal); United Air Lines v. Evans, 431

U.S. 553, 557 (1977) (holding timely filing of Title VII is precondition to maintaining

an action); United States v. Zucca, 351 U.S. 91, 94 (1956) (affirming dismissal of

denaturalization suit because government did not comply with precondition to suit).

The general rule that failure to adhere to statutory preconditions is an affirmative

defense is even more remarkable with respect to the EEOC; this Court has

repeatedly said it strongly presumes Congress intends for reviewability of

administrative action. See Traynor v. Turnage, 485 U.S. 535, 542 (1988).

Contrary to the Thirteenth Circuit’s holding, not only does Title VII’s

language not preclude review of the EEOC’s conciliation efforts with Sunset, Title

VII’s statutory scheme provides evidence suggesting Congress intended for review.

As noted earlier, this Court has repeatedly acknowledged “Congress’[s] intent that

voluntary compliance be the preferred means of achieving the objectives of Title

VII.” Ricci, 557 U.S. at 581, quoting Firefighters, 478 U.S. at 515. As originally

enacted, the EEOC’s only enforcement power was the ability to conciliate with

employers. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367-68 (1977). The

EEOC can now file suit if conciliation efforts are unsuccessful; however, Congress’

intent that the EEOC continue to attempt conciliation as a primary means of

resolution remains, as seen by the retention of this provision as the statute has

been amended. EEOC v. Shell Oil Co., 466 U.S. 54, 78 (1984). Thus, Title VII

mandates the EEOC refrain from initiating suit until it has satisfied its

14

administrative obligations, including its duty to settle suits in an informal,

noncoercive manner whenever possible. Occidental, 432 U.S. at 368.

Without a referee to monitor the EEOC’s conciliation efforts with Sunset, the

EEOC could morph conciliation into a strategic precursor to litigation. For

example, in 2005, the EEOC only resolved 1,319 of its 4,426 reasonable cause

findings through conciliation; a resounding 3,107 reasonable cause findings were

resolved through litigation or other means. EEOC, Enforcement & Litigation

Statistics: All Statutes FY 1997-2013, http://www.eeoc.gov/eeoc/statistics/enforceme

nt/all.cfm (last visited Sep. 21, 2014). Since 2005, only between 29% and 40% of all

reasonable cause findings have resulted in successful conciliation. Id. Experience

illustrates that the EEOC too frequently evades its statutory obligation to engage in

good faith pre-suit conciliation.2 Diminishing this Court’s ability to review the

EEOC’s conciliation efforts with Sunset would run afoul of Congress’s intent that

Title VII’s objectives be achieved through informal resolution. See id.

2 See, e.g., EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 18-19 (2d. Cir. 1981); Patterson v. American

Tobacco Co., 535 F.2d 257, 271-72 (4th Cir. 1976); EEOC v. Agro Distrib. LLC, 555 F.3d 462, 468

(5th Cir. 2009); EEOC v. Pet, Inc., Funsten Nut Div., 612 F.2d 1001, 1002 (5th Cir. 1980); EEOC v.

CRST Van Expedited, 679 F.3d 657, 671-72 (8th Cir. 2012); Zia, 582 F.2d at 530-34; Asplundh, 340

F.3d at 1258-61; EEOC v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, 1036 (D. Ariz. 2013)

(ADEA case); EEOC v. Ruby Tuesday, Inc., 919 F. Supp. 2d 587, 595-98 (W.D. Pa. 2013);

EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., 918 F. Supp. 2d 1171 (D. Col. 2013); EEOC

v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1045 (D. Haw. 2012); EEOC v. Dillard’s Inc.,

No., 08-CV-1780-IEG(PCL), 2011 WL 2784516, at *5 (S.D. Cal. July 14, 2011); EEOC v.

Bloomberg, L.P., 751 F. Supp. 2d 628, 642 (S.D.N.Y. 2010); EEOC v. High Speed Enter., Inc., No.

CV-08-01789-PHX-ROS, 2010 WL 8367452, at *3 (D. Ariz. Sept. 30, 2010); EEOC v. Bimbo

Bakeries USA, Inc., No. 1:09-CV-1872, 2010 WL 598641, at *7 (M.D. Pa. Feb. 17, 2010); EEOC v.

UMB Bank, N.A., 432 F. Supp. 2d 948, 954-55 (W.D. Mo. 2006); EEOC v. Reeves, No.

CV0010515DT(RZX), 2002 WL 1151459, at *6 (C.D. Cal. 2002), rev’d on other grounds, 68 Fed. Appx.

830 (9th Cir. 2003); EEOC v. Golden Lender Fin. Grp., No. 99 Civ. 8591(JGK), 2000 WL

381426, at *5 (S.D.N.Y. Apr. 13, 2000); EEOC v. Pacific Mar. Ass’n, 188 F.R.D. 379, 380-81 (D. Or.

1999); EEOC v. Die Fliedermaus, LLC, 77 F. Supp. 2d 460, 467 (S.D.N.Y. 1999); EEOC v. First

Midwest Bank, N.A., 14 F. Supp. 2d 1028, 1031-33 (N.D. Ill. 1998).

15

Although it may be argued Congress intended for conciliation efforts to be

unreviewable because Title VII requires that the EEOC “endeavor” to reach an

agreement with Sunset through “informal methods,” that argument is

unpersuasive. 42 U.S.C. 2000e-5(b). Title VII does not authorize this Court to

assess whether the substance of the EEOC’s conciliation agreement with Sunset

was acceptable; however, nothing in Title VII suggests that this Court cannot

review the procedural adequacy of conciliation efforts.

Moreover, contrary to what may be argued, it does not necessarily follow that

because Title VII prohibits the public disclosure and subsequent use of the

substance of conciliation that Congress intended for unreviewability altogether. Id.

First, for Congress to indirectly preclude review by preventing the disclosure of

specific evidence makes little sense; a court can keep conciliation evidence

confidential by keeping it under seal. Fed. R. Civ. P. 5.2(d). The most natural

reading of Title VII’s confidentiality provision is to prevent parties from using

conciliation evidence to prove discrimination on the merits; the EEOC itself has

argued for that same interpretation. See 42 U.S.C. § 2000e-5(b); EEOC v. Philip

Svcs. Corp., 635 F.3d 164, 165 (5th Cir. 2011). In Philip, for example, the EEOC

correctly argued:

[T]his court should read the statute as prohibiting disclosure only in

subsequent proceedings on the merits of the charge, and that a suit to enforce

an oral conciliation agreement is not a subsequent proceeding within the

meaning of the statute . . . [T]his interpretation is consistent with the

legislative history and with Congress’s goal of encouraging settlement of

employment disputes through conciliation.

Id. at 165-66. The confidentiality provision of Title VII was incorporated into the

original enactment when only aggrieved parties could file suit and not the EEOC.

16

Civil Rights Act of 1964, Pub. L. No. 88-352, § 706(a), 78 Stat. 241, 259. Hence, the

only conceivable use of conciliation evidence at the time would have been in proving

or disproving the merits of alleged discrimination. See id.

2. Title VII’s Express Language Mandates the EEOC Engage in

Conciliation With Sunset.

The EEOC’s conciliation efforts with Sunset are not solely within its

discretion because Title VII’s conciliation provision contains the imperative “shall.”

42 U.S.C. § 2000e-5(b). The common sense principle of statutory construction is

that provisions should be read to give effect to their plain meaning whenever

possible. Heckler v. Chaney, 470 U.S. 821, 829 (1985). Accordingly, this Court has

repeatedly held that express words like “shall” preclude the possibility that a

relevant statutory provision is discretionary. Bennett v. Spear, 520 U.S. 154, 175

(1997).

In Bennett, 520 U.S. at 158, for example, the relevant statute provided in

pertinent part: “Each Federal Agency shall . . . insure that any action authorized,

funded, or carried out by such agency . . . is not likely to jeopardize the continued

existence of any endangered species . . . .” 16 U.S.C. § 1536(a)(2) (emphasis added).

Concluding agency action was not solely committed to agency discretion, this Court

said that “any contention that the relevant provision of 16 U.S.C. § 1536(a)(2) is

discretionary would fly in the face of its text, which uses the imperative “shall.”

Bennett, 520 U.S. at 175.

Similarly, in Brock v. Pierce County, the issue involved the Comprehensive

Employment and Training Act’s requirement that the Secretary of Labor

investigate when there was reason to believe parties were misusing funds. 476 U.S.

17

253, 255-56 (1986). The Act further stated that “the Secretary ‘shall’ determine ‘the

truth of the . . . belief involved, not later than 120 days after receiving the

complaint.’” Id. at 256 (emphasis added). Ultimately, this Court concluded

“[c]learly the statutory command that the Secretary ‘shall’ act within 120 days does

not commit such action to the Secretary’s discretion.” Id. at 266 n. 7.

Conversely, in Marcello v. Bonds, this Court determined whether the APA

applied to deportation proceedings. 349 U.S. 302, 309 (1955). The Immigration Act

provided in pertinent part, “[t]he procedure (herein prescribed) shall be the sole and

exclusive procedure for determining the deportability of an alien under this section.”

Id. (citation omitted) (emphasis added). This Court held the APA did not apply.

Id. Specifically, this Court reasoned “unless we are to require Congress to employ

magical words in order to effectuate an exemption from the [APA], we must hold

that the present statute expressly supersedes the hearing provisions of that Act.”

Id. at 310.

Like the statutes this Court reviewed in Bennett, 520 U.S. at 175, and Brock,

476 U.S. at 256, 266 n.7, Title VII contains the imperative “shall,” which eliminates

any possibility the EEOC’s conciliation efforts with Sunset were solely committed to

its discretion. 42 U.S.C. § 2000e-5(b). Unlike the statute in Marcello, 349 U.S. at

309-10, Title VII is devoid of any language indicating the EEOC’s conciliation

efforts were “sole[ly] and exclusive[ly]” within its discretion. 42 U.S.C. § 2000e-5(b).

Hence, the EEOC’s conciliation efforts are not exempt from the APA under 5 U.S.C.

§ 701(a)(2).

While it may be argued that agency enforcement actions are traditionally

committed to agency discretion, Title VII’s legislative direction evidenced by careful

18

inclusion of the imperative “shall” undermines that claim. Heckler, 470 U.S. at 832.

As this Court articulated in Heckler:

[C]ongress did not set agencies free to disregard legislative direction in

the statutory scheme that the agency administers. Congress may limit

[the EEOC’s] exercise of enforcement power if it wishes, either by

setting substantive priorities, or by otherwise circumscribing an agency’s

power to discriminate among issues or cases it will pursue.

Id. at 833. As illustrated by this Court’s decisions in Bennett, 520 U.S. at 175, and

Brock, 476 U.S. at 256, 266 n.7, even if the EEOC were to have some discretion in

its conciliation efforts, it does not necessarily follow that its actions are

unreviewable; the question is whether the EEOC enjoys absolute discretion in its

conciliation efforts, which it does not. Overall, Congress’s inclusion of the

imperative “shall” in the provisions governing the EEOC’s enforcement actions

illustrates that conciliation is a mandatory prerequisite to filing suit and not a

matter solely within the EEOC’s discretion.

B. The EEOC Did Not Satisfy its Duty to Conciliate With Sunset Under

Either Good Faith Standard.

The EEOC did not satisfy its duty to conciliate with Sunset under the more

appropriate three-pronged good faith test nor under the subjective good faith test

applied by other courts. Consistent with this Court’s decision in Heckler v. Chaney,

the EEOC’s conciliation efforts with Sunset are unreviewable without a meaningful

standard of review to apply. 470 U.S. 830. The Thirteenth Circuit incorrectly held

that no meaningful standard applied because, for more than three decades, courts

have applied two variations of a good faith standard in reviewing the adequacy of

the EEOC’s conciliation efforts: a purely subjective test, and a nonpartisan three-

pronged approach. See, e.g., Johnson, 91 F.3d at 1534-35; Radiator Specialty, 610

19

F.2d at 183; Agro, 555 F.3d at 468; Serrano, 699 F.3d at 904; Keco, 748 F.2d at

1102; Zia, 582 F.2d at 533; Asplundh, 340 F.3d at 1259.

The three-pronged test is a meaningful standard for this Court to apply in

reviewing the EEOC’s conciliation efforts with Sunset because it fosters Congress’s

voluntary compliance objective. Specifically, the three-pronged approach offers

fixed and objective factors for this Court to consider in analyzing the adequacy of

the EEOC’s conciliation efforts with Sunset. See Johnson, 91 F.3d at 1534-35;

Marshall v. Sun Oil Co. (Del.), 605 F.2d 1331, 1335 (5th Cir. 1979); Agro, 555 F.3d

at 468; Asplundh, 340 F.3d at 1259. Moreover, the three-pronged test’s structure is

more consistent with this Court’s limited authority to evaluate whether the EEOC

has satisfied Title VII’s procedural requirements. On the other hand, the subjective

good faith test is not a workable standard because it requires nothing more than lip

service from the EEOC that it attempted to conciliate with Sunset; hence, it would

not ensure constructive enforcement of Congress’s voluntary compliance objective.

See Radiator Specialty, 610 F.2d at 183; Serrano, 699 F.3d at 904; Keco, 748 F.2d

at 1102; Zia, 582 F.2d at 533. Unlike the three-pronged test, the subjective good

faith standard also tempts courts to improperly delve into the substance of

conciliation as opposed to procedure. The EEOC has not satisfied its conciliation

obligation under either standard because it failed to act reasonably and ignored

Sunset’s efforts to voluntarily comply.

20

1. The EEOC Did Not Satisfy its Conciliation Duty Under the Three-

Pronged Approach Because it Refused to Clearly Define for Sunset its

Cause of Action Under Title VII and Refused to Reasonably Respond to

Sunset’s Conciliation Attempts.

The EEOC did not satisfy its duty to conciliate with Sunset under the three-

pronged test because it acted unreasonably and coercively by withholding its proof

of discrimination despite Sunset’s willingness to negotiate. Satisfactory conciliation

under the three-pronged test required the EEOC to (1) outline to Sunset the

reasonable cause for its belief that Title VII had been violated, (2) offer Sunset an

opportunity to voluntarily comply, and (3) respond in a reasonable and flexible

manner to Sunset’s reasonable attitudes. EEOC v. Klingler Elec. Corp., 363 F.2d

104, 107 (5th Cir. 1981); Marshall, 605 F.2d at 1337–39. The EEOC’s all or nothing

approach to conciliation with Sunset was more coercive than conciliatory, which

does not satisfy Title VII’s procedural requirement that the EEOC conciliate in good

faith before filing suit. See Pet, Inc., 612 F.2d at 1002.

In reviewing the adequacy of the EEOC’s conciliation efforts with Sunset,

this Court must focus on the reasonableness and responsiveness of the EEOC’s

conduct under all the circumstances. Asplundh, 340 F.3d at 1259. In Asplundh, for

example, the EEOC sent the defendant a conciliation proposal seeking front pay,

nationwide notice to its employees of the alleged discrimination, and nationwide

anti-discrimination training for all of its management and hourly employees. Id.

The EEOC did not identify its theory of liability and demanded a reply within 12

days. Id. In response, the defendant requested time to “understand the

Commission’s basis for its determination” and adequately respond. Id.

Consequently, the EEOC terminated conciliation. Id.

21

The court rejected the EEOC’s “all or nothing” approach and concluded that

the EEOC did not satisfy its conciliation obligation because it acted in a “grossly

arbitrary manner” and “engage[d] in unreasonable conduct.” Id. (citation omitted).

The court even went as far as to say that the EEOC’s conduct “smacks more of

coercion than of conciliation.” 340 F.3d at 1260, quoting Pet, 612 F.2d at 1002. The

court further expounded that the EEOC had no good reason not to resume

conciliation when the defendant was willing to negotiate. Id. Moreover, the court

acknowledged that the EEOC’s conciliation duty is at the heart of Title VII; thus, at

minimum, the EEOC was legally obligated to make clear to the defendant the basis

for the charges against it. Id.

Conversely, in Marshall, the court held that the EEOC’s conciliation efforts

were reasonable because it (1) met with the defendant, (2) disclosed its investigation

results to the defendant, (3) provided the defendant with relevant case law, and (4)

gave the defendant an opportunity to voluntarily comply with Title VII. 605 F.2d at

1337. Due to the defendant’s intransigence, however, the plaintiff determined that

the conciliation process reached an impasse and further conciliation efforts would

have been futile. Id.

Similarly, in Johnson, the EEOC satisfied its conciliation duty by issuing a

letter to the defendant explaining it reasons to believe the defendant enforced a

discriminatory policy. 91 F.3d at 1535. The defendant disagreed that its policy was

discriminatory and refused to accommodate the EEOC’s requests for evidence

central to conciliation. Id. The court held that the EEOC satisfied its conciliation

duty because the defendant’s unwillingness to cooperate put the parties in a

deadlock that could not be resolved without court intervention. Id.

22

While conciliation efforts sufficient to further Congress’s voluntary

compliance objective will necessarily differ from case to case, precedent highlights

that the EEOC’s conciliation efforts with Sunset still fall short of Title VII’s

procedural requirement. Marshall, 605 F.2d at 1332. As courts have repeatedly

recognized, good faith conciliation required that the EEOC act flexible and

responsive to Sunset’s attitude and evolving position, which it did not. Id. Like in

Asplundh, 340 F.3d at 1259, for example, the EEOC sent Sunset a far-reaching

proposal without clearly defining its reason to believe Sunset had unlawfully

discriminated against Fernandez. (R. at 4.) Significantly, Sunset expressed a

willingness to work toward an informal resolution when it asked the EEOC to

explain in greater detail how it violated the ADA. (R. at 4.) The EEOC ultimately

adopted the “all or nothing” approach rejected in Asplundh, 340 F.3d at 1259, by

making no effort to reconcile any of its discrimination findings without court

intervention. (R. at 4.) The EEOC’s unwillingness to cooperate before filing suit

not only violated Title VII’s procedural requirement that it conciliate in good faith,

but it revealed the EEOC’s blatant disregard for Congress’s voluntary compliance

objective.

Unlike in Marshall, 605 F.2d at 1337, and Johnson, 91 F.3d at 1535, the

EEOC was not justified in terminating conciliation efforts because Sunset was more

than willing to cooperate to reach an informal resolution. To be specific, although

Sunset denied the EEOC’s discrimination findings, it specifically agreed to discuss

any alleged discrimination, including allegations not involving Fernandez, if

evidence was produced to support the allegations. (R. at 4.) The EEOC was, at

minimum, obliged to produce evidence supporting its allegations against Sunset

23

before it could be said to have satisfied its conciliation obligation under Title VII.

See 42 U.S.C. § 2000e-5(b); Radiator Specialty, 610 F.2d at 182. Ultimately, the

EEOC did not satisfy Title VII’s conciliation requirement under the three-pronged

standard because it did not provide Sunset with an explanation for its theory of

discrimination under Title VII nor did the EEOC reasonably respond to Sunset’s

reasonable request for evidence.

2. The EEOC Did Not Satisfy its Conciliation Obligation Under the

Subjective Good Faith Standard Because Sunset Did Not Expressly

Reject the EEOC’s Conciliation Efforts.

Even if this Court were to reject the nonpartisan three-pronged approach, the

EEOC has still not met its obligation under the good faith standard, which the

Thirteenth Circuit recognized as the proper approach. (R. at 14.) Under the good

faith test, the EEOC had to make a genuine effort to conciliate with Sunset before

filing suit. See, e.g., Radiator Specialty, 610 F.2d at 182; Serrano, 699 F.3d at 904;

Keco, 748 F.2d at 1102; Zia, 582 F.2d at 533. At a minimum, Sunset should have

been given the opportunity to engage in conciliation and be informed of the EEOC’s

allegations, which it was not. 42 U.S.C. § 2000e-5(b); Radiator Specialty, 610 F.2d at

182; (R. at 4.)

While the substance of the EEOC’s conciliation proposal to Sunset is beyond

judicial review, this Court must still ensure that the EEOC made a good faith effort

to affect Sunset’s voluntary compliance with the ADA. Keco, 748 F.2d at 1102. As

courts have repeatedly recognized, the EEOC’s bad faith effort to conciliate can be

measured by its failure to entertain negotiations with Sunset. Asplundh, 340 F.3d

at 1258-1259; Zia, 582 F.2d at 534; Patterson, 535 F.2d at 272.

24

For example, in Keco, a distinguishable case, the court held that the EEOC

conciliated in good faith when it offered the defendant a conciliation agreement,

which the defendant expressly rejected. 748 F.2d at 1102. Specifically, unlike

Sunset’s cooperative approach, the defendant in Keco expressed that it had no

interest in settling on the EEOC’s claims. Id. at 1101; (R. at 4.) The key factor the

court relied on in reaching its conclusion was that, unlike here, conciliation efforts

had clearly broken down. Id. at 1102; (R. at 4.)

In another distinguishable case, Radiator Specialty, the EEOC sent the

defendant an invitation to conciliate that clearly defined the EEOC’s reason to

believe that the defendant unlawfully discriminated against some of its employees.

610 F.2d at 183. Three months later, the defendant sent the EEOC a letter

rejecting conciliation. Id. The EEOC responded that conciliation would be deemed

to have failed unless the defendant indicated that it wished to resume, to which the

defendant did not respond. Id. The court concluded that because the defendant was

uncooperative, conciliation efforts had effectively broken down and the EEOC

satisfied its duty. Id.

Unlike in Keco, 748 F.2d at 1102, and Radiator Specialty, 610 F.2d at 183,

here the EEOC did not conciliate in good faith because Sunset did not terminate

conciliation efforts. (R. at 4.) Conversely, Sunset was more than willing to discuss

with the EEOC the specific details of any alleged discrimination to try and reach an

informal resolution. (R. at 4.) Sunset’s willingness to participate in conciliation is

made clear by its request for evidence supporting the systematic discrimination

alleged. (R. at 4.) Sunset never indicated it was unwilling to sign any conciliation

agreement; it merely rejected to sign the EEOC’s initial proposal without further

25

information. (R. at 4.) In fact, the EEOC’s outright refusal to entertain

negotiations with Sunset is the exact type of conduct courts have held to indicate

bad faith. See Patterson, 535 F.2d at 272; (R. at 4.) Overall, the EEOC did not

conciliate with Sunset in good faith because it provided no support for any alleged

discrimination as requested, and Sunset did not expressly reject the EEOC’s

conciliation efforts.

II. SUNSET DID NOT HAVE TO TRANSFER FERNANDEZ TO THE

PHARMACY TECHNICIAN POSITION BECAUSE IT WAS A

PRESUMPTIVELY UNREASONABLE ACCOMMODATION AND WOULD

CAUSE UNDUE HARDSHIP.

Sunset satisfied its obligation to reasonably accommodate Fernandez by

transferring her to the Educational Services Aide position – the most equivalent

vacant position for which she was most qualified. (R. at 3.) Under the Americans

with Disabilities Act (ADA), “[n]o [employer] shall discriminate against a qualified

individual on the basis of disability in regard to . . . terms, conditions, and privileges

of employment.” 42 U.S.C. § 12112(a). Discrimination includes not providing a

reasonable accommodation to the known physical restrictions of an otherwise

qualified disabled employee. 42 U.S.C. § 1359ww(d)(10)(C)(iii)(II). Transferring

Fernandez to the Pharmacy Technician position was unreasonable if it would pose

an undue hardship on Sunset’s business. See id.

For the EEOC to make a prima facie case of disability discrimination against

Sunset, it had to demonstrate the following: (1) Fernandez was disabled under the

ADA, (2) Fernandez was qualified for the Pharmacy Technician job, and (3)

Fernandez suffered an adverse employment action because of her disability. Huber

v. Wal-Mart Stores, Inc., 486 F.3d 480, 482 (8th Cir. 2007). The issue here is

26

whether, as a reasonable accommodation, Sunset had to give Fernandez preference

in filling the Pharmacy Technician position although she was not the most qualified

applicant. See (R. at 3-4.)

This Court developed a two-pronged test for evaluating whether Sunset must

reassign Fernandez in violation of its “Best Qualified” hiring policy. Shapiro v.

Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002); EEOC v. United Airlines,

Inc., 693 F.3d 760, 765 n.1 (7th Cir. 2012). First, the EEOC must show that Sunset

violating its “Best Qualified” policy by transferring Fernandez to the Pharmacy

Technician position was a presumptively reasonable accommodation, or reasonable

on its face. See Shapiro, 292 F.3d at 361; United Airlines, 693 F.3d at 765 n.1;

EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship

Under the Americans With Disabilities Act (Oct. 17, 2002), http://www.eeoc.gov

/policy/docs/accommodation.html. If Sunset violating its “Best Qualified” policy by

transferring Fernandez to the Pharmacy Technician job was presumptively

reasonable, then Sunset must demonstrate undue hardship. See Shapiro, 292 F.3d

at 361; United Airlines, 693 F.3d at 765 n.1; EEOC, Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the Americans With

Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html. If

transferring Fernandez to the Pharmacy Technician job was presumptively

unreasonable, however, the EEOC must show “special circumstances” made it

reasonable for Sunset to violate its “Best Qualified” policy. See U.S. Airways, Inc. v.

Barnett, 535 U.S. 391, 394 (2007); Shapiro, 292 F.3d at 361; United Airlines, 693

F.3d at 765 n.1; EEOC, Enforcement Guidance: Reasonable Accommodation and

27

Undue Hardship Under the Americans With Disabilities Act, http://www.eeoc.gov/p

olicy/docs/accommodation.html.

The limited circumstances warranting an exception to Sunset’s “Best

Qualified” hiring policy would include, for example, if it retained the right to

unilaterally alter its policy and invoked that right frequently, which it did not.

Barnett, 535 U.S. at 405; (R. at 3.) An exception to Sunset’s policy might also be

warranted if the policy already contained several other exceptions such that one

more would unlikely matter, which it did not. Barnett, 535 U.S. at 405; (R. at 3.).

More generally, this Court must determine whether making an exception for

Fernandez was unlikely to have made a difference because employees had minimal

expectations Sunset’s policy would be followed regardless; however, that is not the

case here. Barnett, 535 U.S. at 405; (R. at 3.) This Court should hold transferring

Fernandez to the Pharmacy Technician position was presumptively unreasonable,

and the EEOC did not meet its burden of demonstrating “special circumstances”

warrant an exception here; notwithstanding, reassigning Fernandez to the desired

position would cause undue hardship on Sunset.

A. Requiring Sunset to Disregard its Nondiscriminatory Policy That

Creates and Satisfies Employee Expectations of Fair and Consistent

Treatment Would Undermine the ADA’s Objectives.

To comply with the ADA, Sunset did not have to disregard the expectations of

other employees in favor of Fernandez by transferring her to the Pharmacy

Technician position she desired as an accommodation. See Barnett, 535 U.S. at

393-94; Charles Conway, Ordinarily Reasonable: Using the Supreme Court’s

Barnett Analysis to Clarify Preferential Treatment Under the Americans With

Disabilities Act, 22 Am. U. J. Gender Soc. Pol’y & L. 721, 729 (2014). The ADA is

28

not an affirmative action statute that guaranteed Fernandez transfer to the

Pharmacy Technician job as a reasonable accommodation. See Barnett, 535 U.S. at

393-94; Charles Conway, Ordinarily Reasonable: Using the Supreme Court’s

Barnett Analysis to Clarify Preferential Treatment Under the Americans With

Disabilities Act, 22 Am. U. J. Gender Soc. Pol’y & L. 721, 729 (2014). Compliance

with the ADA only required Sunset to ensure Fernandez had equal employment

opportunities. Wernick v. Fed. Reserve Bank of NY, 91 F.3d 379, 384-85 (2d Cir.

1996); EEOC v. Sara Lee Corp., 237 F.3d 349, 355 (4th Cir. 2001); Stacy M. Hickox,

Transfer as an Accommodation: Standards From Discrimination Cases and Theory,

62 Ark. L. Rev. 195 (2009). Specifically, Sunset only needed to place Fernandez on

an even playing field with nondisabled individuals and nothing more, which it did.

See Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (per

curiam); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. 2004); Kellogg

v. Union Pac. R.R. Co., 233 F.3d 1083, 1089 (8th Cir. 2000) (per curiam); Terrell v.

USAir, 132 F.3d 621, 627 (11th Cir. 1998); (R. at 2-3.) Notably, the EEOC impliedly

realized the difficulties associated with Sunset transferring Fernandez to the

Pharmacy Technician job by acknowledging it was an accommodation of “last

resort.” See EEOC, Enforcement Guidance: Reasonable Accommodation and

Undue Hardship Under the Americans With Disabilities Act (Oct. 17, 2002),

http://www.eeoc.gov/policy/docs/accommodation.html.

In the analogous case Barnett, for example, this Court decided how the ADA

settles a possible divergence between: “(1) the interests of a disabled worker[, like

Fernandez,] who seeks assignment to a particular position[, like the Pharmacy

Technician job,] as a ‘reasonable accommodation,’ and (2) the interests of other

29

workers with superior rights to bid for the job[, like the other applicant for the

Pharmacy Technician position,] under an employer’s non-contractual seniority

system.” 535 U.S. at 393-94, 404; (R. at 2-3.) Unlike Fernandez, the plaintiff in

Barnett injured his back while at work; he worked as a cargo-handler. 535 U.S. at

394; (R. at 2). Consequently, the plaintiff invoked his seniority rights to transfer to

a less demanding mailroom position. 535 U.S. at 393-94, 404. Under the

employer’s seniority system, however, the plaintiff’s mailroom job occasionally

opened up for seniority-based employee bidding. Id. The plaintiff learned that at

least two more senior employees intended to bid for his job. Id. Therefore, he asked

the employer to make an exception that would allow him to stay in the mailroom

position based on his disability. Id. The employer declined to make an exception for

the plaintiff, and he lost his job. Id.

Ultimately, this Court concluded a requested accommodation that violates a

seniority system is presumptively unreasonable. Id. Accordingly, the ADA does not

require proof on a case-by-case basis that violating a seniority system is an

unreasonable accommodation – the unreasonableness of violating such a system is

presumed unless the plaintiff shows “special circumstances” warrant an exception.

Barnett, 535 U.S. at 394. This Court reasoned: “[T]he typical seniority system

provides important employee benefits by creating, and fulfilling, employee

expectations of fair, uniform treatment. These benefits include ‘job security and an

opportunity for steady and predictable advancement . . . .” Id. at 404. Requiring

employers to demonstrate more than the existence of a seniority system risks

undermining “the employees’ expectations of consistent, uniform treatment.” Id. at

404.

30

Likewise in Huber, a case with substantially similar facts to those here, the

Eighth Circuit applied the Barnett framework to conclude, like with seniority

systems, employers are not required to violate a “Best Qualified” policy in

accommodating an employee’s disability. 486 F.3d at 481. The plaintiff in Huber

worked as a dry grocery order filler for Wal-Mart; she earned $13.00 per hour,

including a $.50 shift differential. Id. While working, the plaintiff permanently

injured her arm and hand and could no longer perform the essential duties of her

position. Id. As a result, the plaintiff asked to transfer to a router position as a

reasonable accommodation; the job was vacant and equivalent in pay to the

plaintiff’s dry grocery order filler position. Id. Wal-Mart refused to automatically

reassign the plaintiff to the router position but, pursuant to the employer’s “Best

Qualified” policy, she, like Fernandez, was able to compete for the job with other

applicants. Huber, 486 F.3d at 481; (R. at 2-3.) Ultimately, the plaintiff did not

receive the router job because, also like Fernandez, she was not the most qualified

candidate, to which the parties stipulated, as also occurred here. Huber, 486 F.3d

at 481; (R. at 3.)

Instead, Wal-Mart assigned the plaintiff to a janitorial position at another

facility, which paid $6.20 per hour. Huber, 486 F.3d at 481. The court held an

employer does not have to offer an accommodation that would subvert the rights of

other employees who are more qualified for the job. Id. at 484. “To conclude

otherwise is ‘affirmative action with a vengeance. This is giving a job to someone

solely on the basis of his status as a member of a statutorily protected group.’” Id.,

quoting EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1027-28 (7th Cir. 2000).

The court also determined that by transferring the plaintiff to the janitorial

31

position, Wal-Mart did not violate its duty to provide a reasonable accommodation.

Huber, 486 F.3d at 484. “The maintenance position may not have been a perfect

substitute job, or the employee’s most preferred alternative job, but an employer is

not required to provide a disabled employee with an accommodation that is ideal

from the employee’s perspective, only an accommodation that is reasonable.” Id.

The District Court correctly found that Sunset violating its “Best Qualified”

policy by transferring Fernandez to the Pharmacy Technician job was

presumptively unreasonable; specifically, violating the policy would undermine the

fair and consistent treatment employees with superior qualifications expect, like the

seniority system in Barnett, 535 U.S. at 404. See (R. at 8.) Sunset’s “Best

Qualified” policy was well-established and uniformly applied in all of its more than

400 facilities. (R. at 3.) Employees, including Fernandez, were informed of the

policy both in Sunset’s Employee Handbook and upon initial hire. (R. at 3.)

Moreover, consistent application was a fundamental feature of the policy. (R. at 3.)

Although the “Best Qualified” policy did not apply to certain management and

administrative positions, it was uniformly applied to all the positions for which it

did apply. (R. at 2.) Hence, unlike what the Thirteenth Circuit held, Sunset’s

employees developed expectations about how the policy functioned to provide both

promotions and lateral transfers within the company as it pertained to particular

jobs. (R. at 3.)

For example, the employee who ultimately received the Pharmacy Technician

job initially worked part time for Sunset with the expectation that he would receive

a full-time position for which he was most qualified when available. (R. at 3.)

Consistent with the seniority system in Barnett, Sunset’s “Best Qualified” policy

32

was largely objective, taking into account the following: seniority, job evaluation

scores, and skills required for the position. See (R. at 2.) The EEOC stipulated that

the other applicant was more qualified than Fernandez in every respect. (R. at 3.)

Specifically, the other applicant worked for Sunset longer, and unlike Fernandez,

possessed the desired Pharmacy Technician certificate. (R. at 3.) Additionally, the

other applicant received one of the highest evaluation scores in the Company, and

Sunset considered him an extremely valuable employee. (R. at 3.) Thus, the other

applicant expected and, pursuant to Sunset’s policy, objectively deserved the

Pharmacy Technician job over Fernandez. See (R. at 3.)

As demonstrated in Huber, 486 F.3d at 484, Sunset satisfied its duty to

reasonably accommodate Fernandez by transferring her to the Educational Services

Aide job, the most equivalent open position for which she was the most qualified;

Fernandez’s dissatisfaction with that reassignment was irrelevant. (R. at 3.)

Notably, Fernandez was not displaced from a position she already held, like the

plaintiff was in Barnett, 535 U.S. at 394; she was merely transferred to an

alternative job than what she requested. (R. at 3.) Moreover, unlike the plaintiffs

in Barnett, 535 U.S. at 394, and Huber, 486 F.3d at 481, who were both injured on

the job, Fernandez was not injured at work, making it even more unlikely Sunset

would be required to violate its policy in accommodating her disability. (R. at 2.)

Accordingly, the EEOC had the burden to show “special circumstances” made

violating Sunset’s “Best Qualified” policy reasonable here, which it failed to do. See

Barnett, 535 U.S. at 394; Shapiro, 292 F.3d at 361; United Airlines, 693 F.3d at 765

n.1. Ultimately, Sunset violating its “Best Qualified” policy by transferring

Fernandez to the Pharmacy Technician was presumptively unreasonable because it

33

would undermine other employees’ expectations of fair and consistent treatment.

See Barnett, 535 U.S. at 404; Huber, 486 F.3d at 481.

B. Violating Sunset’s “Best Qualified” Policy Would Negatively Impact

Another Employee and Undermine Safe and Cost-Efficient Patient Care.

Even if this Court were to hold that Sunset violating its “Best Qualified”

policy was reasonable on its face, the negative impact it would have on another

employee coupled with the nature of Sunset’s business demonstrates the undue

hardship it would cause. See (R. at 1-3.) The ADA defines undue hardship as “an

action requiring significant difficulty or expense, when considered in light of

[various] factors . . . .” 42 U.S.C. § 12111(10). Relatively few cases, however, have

closely examined what constitutes undue hardship in this context; like in Barnett,

535 U.S. at 394, and Huber, 486 F.3d at 481, proposed accommodations are usually

considered presumptively unreasonable, which means employers need not show

undue hardship. Michael J. Zimmer et al., Cases and Materials on Employment

Discrimination 563 (8th ed. 2013).

This Court nevertheless recognized in Barnett that an accommodation could

cause undue hardship “because of its impact, not [just] on business operations, but

on fellow employees — say, because it will lead to dismissals, relocations, or

modification of employee benefits . . . .” 535 U.S. at 400-01. Barnett’s dicta is

consistent with what this Court has consistently held in other types of

discrimination cases — a burden on co-workers is a factor that can, and often will,

create undue hardship on an employer. See Barnett, 535 U.S. 400-01; Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 77-84 (1977); Michael J. Zimmer et al., Cases

and Materials on Employment Discrimination (8th ed. 2013). Although a clear cut

34

definition of undue hardship in the ADA context with respect to “Best Qualified”

hiring policies has not yet been articulated, this Court’s interpretation of undue

hardship in Title VII religious discrimination cases provide illustrative examples.

See Michael J. Zimmer et al., Cases and Materials on Employment Discrimination

563 (8th ed. 2013). Not only are Title VII provisions incorporated into aspects of the

ADA highlighting the analogous nature of the statutes, but this Court’s Barnett,

535 U.S. 400-01, decision shows undue hardship analysis is seemingly the same in

both contexts. 42 U.S.C. § 12117.

For example, this Court defined undue hardship quite broadly in Hardison, a

Title VII religious discrimination case. 432 U.S. at 77-84. The plaintiff in Hardison

was a Saturday Sabbatarian who requested a shift schedule requiring Saturday

work be modified for him. Id. at 63. The plaintiff proposed various alternatives, but

this Court held under a highly deferential standard that each proposal would cause

an undue hardship. Id. at 84. One of the primary factors this Court considered was

that if the plaintiff received Saturdays off for religious reasons, co-workers would

lose their opportunity to have Saturdays off. Id. at 80. This Court stated: “It would

be anomalous to conclude that by ‘reasonable accommodation’ Congress meant that

an employer must deny the shift and job preference of some employees, as well as

deprive them of their contractual rights, in order to accommodate or prefer the

religious needs of others . . . .” Id. at 81.

Requiring Sunset to violate its “Best Qualified” policy would impede the

rights of the employee who bid for, and ultimately received the Pharmacy

Technician job Fernandez sought, causing undue hardship. See Barnett, 535 U.S.

at 400-01; Hardison, 432 U.S. at 77-84; (R. at 3.) As discussed previously, Sunset’s

35

policy was long-standing and uniformly applied, creating employee expectations of

how the system worked. (R. at 3.) Under its “Best Qualified” policy, Sunset

considered objective criteria such as seniority, job evaluation scores, and any other

skills required for a position. (R. at 3.)

The EEOC stipulated that the employee who received the Pharmacy

Technician position was more qualified than Fernandez. (R. at 3.) Specifically, the

other employee worked for Sunset for four years; Fernandez only worked for the

company for two years. (R. at 3.) The other applicant also surpassed Fernandez’s

evaluation scores receiving among the highest in the company. (R. at 3.) Finally,

the other applicant had a Pharmacy Technician certificate; Fernandez did not. (R.

at 3.) Ultimately, Sunset considered the other applicant to be an extremely

valuable employee. (R. at 3.)

Unlike in Hardison, 432 U.S. at 80, where the requested accommodation

merely inconvenienced co-workers, the desired accommodation here would have put

another more qualified co-worker’s livelihood in jeopardy; specifically, the applicant

who ultimately received the Pharmacy Technician job went from part-time to full-

time with the transfer. (R. at 3.) Hence, this Court should consider that the burden

on co-workers here is more severe than in cases where this Court has held there

was undue hardship in the past. See Hardison, 432 U.S. at 80.

In addition to burdening co-workers, this Court should hold requiring Sunset

to violate its “Best Qualified” policy would undermine its efforts to deliver safe and

cost-efficient patient care, as well. Under 42 U.S.C. § 12111(10)(B)(iv), another

factor this Court should consider in determining undue hardship is the type of

Sunset’s operations, including the composition, structure, and functions of its

36

workforce. One of Sunset’s primary functions includes providing health services

and medication administration. (R. at 1.) The composition of Sunset’s workforce

affected by its “Best Qualified” hiring policy included Pharmacy Technicians. (R. at

2.) The U.S. Department of Labor defines a Pharmacy Technician as someone

responsible for assisting pharmacists dispense prescription medication. Bureau of

Labor Statistics, U.S. Dep’t of Labor, Occupational Outlook Handbook, 2014-15

Edition, Pharmacy Technicians, (Jan. 8, 2014), http://www.bls.gov/ooh/healthcare/

pharmacy-technicians.htm. A Pharmacy Technician’s duties may include, but are

not limited to: retrieving prescription orders; counting, pouring, measuring, and

weighing tablets and medications; developing prescription labels; selecting the

correct prescription container; and mixing medications. Pharmacy Technician

Schools, Pharmacy Technician Job Description (Sep. 13, 2014), www.pharmacytechs

.net/resources/career-description/.

An article published in 2013 by the Journal of Participatory Medication

indicates medical errors are one of the leading causes of death in the United States.

Bart Windrum, It’s Time to Account for Medical Error in “Top Causes of Death”

Charts,” Journal of Participatory Med. (Apr. 24, 2013), www.jopm.org/opinion/com

mentary/2013/04/24/it’s-time-to-account-for-medical-error-in-top-ten-causes-of-

death-charts/. A report conducted by the U.S. Department of Health and Human

Services in 2010 identified at least 180,000 deaths annually attributable to medical

error. Id. According to the Academy of Managed Care Pharmacy, medication errors

are among the most prevalent medical errors, impacting at least 1.5 million

individuals annually. Acad. of Managed Care Pharmacy, The Academy of Managed

Care Pharmacy’s Concepts in Managed Care Pharmacy (June 2010), www.amcp.org/

37

WorkArea/DownloadAsset.aspx?id=9300. Even a low error rate can translate into a

substantial number of errors because of the high volumes of medications

pharmacies dispense. Ka-Chun Cheung et al., Medication Errors: The Importance

of Safe Dispensing, U.S. Library of Med. Nat’l Inst. of Health (June 2009),

www.ncbi.nlm.nih.gov/pmc/articles/PMC2723208.

The National Coordinating Council for Medication Error and Prevention

(NCCMERP) define “medication error” as:

[A]ny preventable event that may cause or lead to inappropriate medication

use or patient harm while the medication is in the control of the health care

professional, patient, or consumer. Such events may be related to

professional practice, health care products, procedures, and systems

including: prescribing, order communication; product labeling; packaging and

nomenclature; compounding; dispensing; distribution; administration;

education; monitoring; and use.

NCCMERP, About Medication Errors (2014), available at www.nccmerp.org/about

MedErrors.html. The additional costs of treating injuries from medication errors in

hospitals alone equals at least $3.5 billion a year, which does not account for lost

wages and productivity or extra medical costs. Acad. of Managed Care Pharmacy,

The Academy of Managed Care Pharmacy’s Concepts in Managed Care Pharmacy

(June 2010), www.amcp.org/WorkArea/DownloadAsset.aspx?id=9300. In total, the

costs of medication errors are estimated to run $77 billion annually. Id. Therefore,

patient safety is a significant concern. Id.

Customary causes of medication error include dose miscalculations, poor drug

distribution practices, and incorrect drug administration. Id. From 1995 to 2000,

the number of fatalities resulting from drug errors increased from 198,000 to

218,000. Id. The impact of medication errors on the U.S. economy is more than

$177 billion per year. Id.

38

Considering the negative externalities associated with medication errors, the

American Pharmacists Association, American Society of Health-System

Pharmacists, Illinois Council of Health-System Pharmacists, and Michigan

Pharmacists Association created the Pharmacy Technician Certification Board

(PTCB) in 1995; the National Association of Boards of Pharmacy joined the PTCB in

2001. PTCB, About PTCB (Sep. 13, 2014), available at www.ptcb.org/aboutptcb#.V

BR5A0KKtUQ. “PTCB develops, maintains, promotes, and administers a

nationally accredited certification and recertification program for pharmacy

technicians to enable the most effective support of pharmacists to advance patient

safety.” Id. According to PTCB, certified Pharmacy Technicians have increased

knowledge, can make a positive impact on patient care, and ultimately represent a

higher standard of practice. Id.

With the aforementioned considerations in mind, it would be poor public

policy to require Sunset to violate its “Best Qualified” policy in light of the nature of

its business operations in healthcare. See (R. at 1.) Sunset’s “Best Qualified” policy

is narrowly tailored to positions that pose significant safety and financial risks to

not only the company, but to society at large; the only positions the policy does not

apply to are certain management and administrative jobs. (R. at 2.) Requiring

Sunset to transfer Fernandez, a less qualified employee, would undermine the

company’s goals of providing the safest and most cost-efficient patient care

whenever possible. See Acad. of Managed Care Pharmacy, The Academy of

Managed Care Pharmacy’s Concepts in Managed Care Pharmacy (June 2010),

www.amcp.org/WorkArea/DownloadAsset.aspx?id=9300; PTCB, About PTCB (Sep.

13, 2014), available at www.ptcb.org/aboutptcb#.VBR5A0KKtUQ. Sunset’s concern

39

for patient safety is highlighted by the fact that even when the most qualified

applicant is hired for a position, Sunset enacts a six month probationary period to

ensure quality care. (R. at 2.)

While it may be argued Fernandez could obtain certification through on the

job training, the EEOC Guidelines indicate Sunset is under no obligation to provide

that kind of training in determining her qualifications. EEOC, Enforcement

Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

With Disabilities Act (Oct. 17, 2002), http://www.eeoc.gov/policy/docs/accommodatio

n.html. There is nothing to suggest Fernandez did not have a Pharmacy Technician

certificate because of her disability; Fernandez presumably did not have a

Pharmacy Technician position because she simply did not complete the process

whereby she could become certified. (R. at 2.) Notwithstanding, even with the

Pharmacy Technician certificate, Fernandez was still not the most qualified

applicant. (R. at 3.) Fernandez conceded that the other applicant was more

qualified than she was. (R. at 3.) Therefore, as the court noted in Huber, if

Fernandez were transferred to the Pharmacy Technician job it would only be

because of her disabled status, which undermines the ADA’s objectives of creating

equal employment opportunities for all. 486 F.3d at 484. This Court should

consider the public policy concerns associated with requiring Sunset violate a policy

enforced in part to foster safe patient care and avoid costs that have consistently

had a significant impact on the U.S. economy annually. See Ka-Chun Cheung, et

al., Medication Errors: The Importance of Safe Dispensing, U.S. Library of Med.

Nat’l Inst. of Health (June 2009), www.ncbi.nlm.nih.gov/pmc/articles/PMC2

40

723208. Considering Sunset operates more than 400 facilities nationwide,

establishing such precedent could have far-reaching negative implications. Id.; (R.

at 1.) Overall, this Court should hold Sunset did not have to accommodate

Fernandez by transferring her to the Pharmacy Technician position because it

would negatively impact her co-worker; additionally, such precedent could cause

catastrophic safety and financial concerns considering Sunset’s large scale business

operations in healthcare.

CONCLUSION

For the foregoing reasons, this Court should (1) deny the EEOC’s motion for

Summary Judgment on Sunset’s affirmative defense because the EEOC’s

conciliation efforts with Sunset are judicially reviewable under the more demanding

three-pronged test and (2) deny the EEOC’s motion for Summary Judgment on the

ADA accommodation issue, given that transferring Fernandez to the Pharmacy

Technician position in violation of Sunset’s “Best Qualified” hiring policy was both

presumptively unreasonable and would cause undue hardship.

Respectfully Submitted,

Team 1412

Counselors for the Petitioner

a

APPENDIX A

Team Certification

We hereby certify that the brief for __________________ (school name) Law School is

the product solely of the undersigned, that the undersigned have not received any

faculty or other assistance in connection with the preparation of the brief other than

as permitted by Rule 8, and that the Computer Disk submitted herewith truly and

accurately represents the contents of the body of the brief as provided for in

Rule 4(b) of the Rules of the National Health Law Moot Court Competition.

__________________________________

(Team member’s name)

___________________________________


__________________________________


b

APPENDIX B

Title VII of the Civil Rights Act of 1964

Section 2000e-5

(b) Charges by persons aggrieved or member of Commission of unlawful

employment practices by employers, etc.; filing; allegations; notice to respondent;

contents of notice; investigation by Commission; contents of charges; prohibition on

disclosure of charges; determination of reasonable cause; conference, conciliation,

and persuasion for elimination of unlawful practices; prohibition on disclosure of

informal endeavors to end unlawful practices; use of evidence in subsequent

proceedings; penalties for disclosure of information; time for determination of

reasonable cause.

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or

by a member of the Commission, alleging that an employer, employment agency,

labor organization, or joint labormanagement committee controlling apprenticeship

or other training or retraining, including on-- the-job training programs, has

engaged in an unlawful employment practice, the Commission shall serve a notice

of the charge (including the date, place and circumstances of the alleged unlawful

employment practice) on such employer, employment agency, labor organization, or

joint labor--management committee (hereinafter referred to as the “respondent”)

within ten days, and shall make an investigation thereof. Charges shall be in

writing under oath or affirmation and shall contain such information and be in such

form as the Commission requires. Charges shall not be made public by the

Commission. If the Commission determines after such investigation that there is

not reasonable cause to believe that the charge is true, it shall dismiss the charge

and promptly notify the person claiming to be aggrieved and the respondent of its

action. In determining whether reasonable cause exists, the Commission shall

accord substantial weight to final findings and orders made by State or local

authorities in proceedings commenced under State or local law pursuant to the

requirements of subsections (c) and (d) of this section. If the Commission determines

after such 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. Nothing said or done during and as a part of such informal endeavors

may be made public by the Commission, its officers or employees, or used as

evidence in a subsequent proceeding without the written consent of the persons

concerned. Any person who makes public information in violation of this subsection

shall be fined not more than $1,000 or imprisoned for not more than one year, or

both. The Commission shall make its determination on reasonable cause as

promptly as possible and, so far as practicable, not later than one hundred and

twenty days from the filing of the charge or, where applicable under subsection (c)

or (d) of this section, from the date upon which the Commission is authorized to

take action with respect to the charge.

c

APPENDIX C


Section 2000e-5

(e) Time for filing charges; time for service of notice of charge on respondent; filing

of charge by Commission with State or local agency; seniority

system

(1) A charge under this section shall be filed within one hundred and eighty

days after the alleged unlawful employment practice occurred and notice

of the charge (including the date, place and circumstances of the alleged

unlawful employment practice) shall be served upon the person against

whom such charge is made within ten days thereafter, except that in a

case of an unlawful employment practice with respect to which the person

aggrieved has initially instituted proceedings with a State or local agency

with authority to grant or seek relief from such practice or to institute

criminal proceedings with respect thereto upon receiving notice thereof,

such charge shall be filed by or on behalf of the person aggrieved within

three hundred days after the alleged unlawful employment practice

occurred, or within thirty days after receiving notice that the State or

local agency has terminated the proceedings under the State or local law,

whichever is earlier, and a copy of such charge shall be filed by the

Commission with the State or local agency.

d

APPENDIX D


Section 2000e-5

(f) Civil action by Commission, Attorney General, or person aggrieved;

preconditions; procedure; appointment of attorney; payment of fees, costs, or

security; intervention; stay of Federal proceedings; action for appropriate temporary

or preliminary relief pending final disposition of charge; jurisdiction and venue of

United States courts; designation of judge to hear and determine case; assignment

of case for hearing; expedition of case; appointment of master

(1) If within thirty days after a charge is filed with the Commission or within

thirty days after expiration of any period of reference under subsection (c)

or (d) of this section, 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 any respondent not a

government, governmental agency, or political subdivision named in the

charge. In the case of a respondent which is a government, governmental

agency, or political subdivision, if the Commission has been unable to

secure from the respondent a conciliation agreement acceptable to the

Commission, the Commission shall take no further action and shall refer

the case to the Attorney General who may bring a civil action against such

respondent in the appropriate United States district court. The person or

persons aggrieved shall have the right to intervene in a civil action

brought by the Commission or the Attorney General in a case involving a

government, governmental agency, or political subdivision. If a charge

filed with the Commission pursuant to subsection (b) of this section is

dismissed by the Commission, or if within one hundred and eighty days

from the filing of such charge or the expiration of any period of reference

under subsection (c) or (d) of this section, whichever is later, the

Commission has not filed a civil action under this section or the Attorney

General has not filed a civil action in a case involving a government,

governmental agency, or political subdivision, or the Commission has not

entered into a conciliation agreement to which the person aggrieved is a

party, the Commission, or the Attorney General in a case involving a

government, governmental agency, or political subdivision, shall so notify

the person aggrieved and within ninety days after the giving of such

notice a civil action may be brought against the respondent named in the

charge (A) by the person claiming to be aggrieved or (B) if such charge was

filed by a member of the Commission, by any person whom the charge

alleges was aggrieved by the alleged unlawful employment practice. Upon

application by the complainant and in such circumstances as the court

may deem just, the court may appoint an attorney for such complainant

and may authorize the commencement of the action without the payment

of fees, costs, or security. Upon timely application, the court may, in its

e

discretion, permit the Commission, or the Attorney General in a case

involving a government, governmental agency, or political subdivision, to

intervene in such civil action upon certification that the case is of general

public importance. Upon request, the court may, in its discretion, stay

further proceedings for not more than sixty days pending the termination

of State or local proceedings described in subsection (c) or (d) of this

section or further efforts of the Commission to obtain voluntary

compliance.

f

APPENDIX E

Congressional Record: Civil Rights Act of 1964

Sec 706 (a)

Whenever it is charged in writing under oath by a person claiming to be aggrieved,

or a written charge has been filed by a member of the Commission where he has

reasonable cause to believe a violation of this title has occurred (and such charge

sets forth the facts upon which it is based) that an employer, employment agency, or

labor organization has engaged in an unlawful employment practice, the

Commission shall furnish, such employer, employment agency, or labor

organization (hereinafter referred to as the “respondent”) with a copy of such charge

and shall make an investigation of such charge, provided that such charge shall not

be made public by the Commission. If the Commission shall determine, after such

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. Nothing

said or done during and as part of such endeavors may be made public by the

Commission without the written consent of the parties, or used as evidence in a

subsequent proceeding. Any officer or employee of the Commission, who shall make

public in any manner whatever any information in violation of this subsection shall

be deemed guilty of a misdemeanor and upon conviction thereof shall be fined no

more than $1,000 or imprisoned not more than one year.

Supreme Court of the United States - law.siu.edu · NO. 14-1184 IN THE Supreme Court of the United...

Documents

Transcript of Supreme Court of the United States - law.siu.edu · NO. 14-1184 IN THE Supreme Court of the United...