IN RE: Sears, Roebuck & Co. Employment Practices Litigation

Case MDL No. 413 Document 2 Filed 05/20/15 Page 1 of 7
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1 FL AT ER : oo _
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PATE 0 - Yesg SE
3 BEFORE THE JUDICIAL PANEL | RS Fy bo
4 MULTIDISTRICT LITIGATION
5 | IN RE SEARS, ROEBUCK & CO. ) DOCKET NO. 413EMPLOYMENT PRACTICES LITIGATION )
6 OPINION AND ORDER - hn RA
, 5 3
8 BEFORE ANDREW A. CAFFREY, CHAIRMAN, AND ROY W. HARPER, CHARLES SURER. WEINER, EDWARD S. NORTHROP, AND ROBERT H. SCHNACKE, JUDGES :
9 OF THE PANEL.
"PER CURIAM :
10 LL
This litigation consists of five actions pending in five : So
1 federal districts: one each in the Northern District of Illinois; oo
12 the Northern District of Georgia; the Middle District of Alabama; 8
13 the Western District of Tennessee; and the Southern District |
14 of New York. “
15 The present five actions between the Equal Employment : ’
16 Opportunity Commission (EEOC) and Sears, Roebuck and Company i |
17 (Sears) have evolved over a period of years. On August 30, i.
15 1973, the Chairman of EEOC filed an unsworn Commissioner's oo 0
charge alleging patterns and practices of nationwide discrimi- ie SE
19 nation by Sears against minority and female persons. On April :
20 19, 1977, EEOC, by two-to-one vote, found reasonable cause
21 to believe that Sears' employment practices discriminated against B SE
22 minority and female persons. On February 27, 1978, Sears moved - : a
23 EEOC to reconsider the decision, charging, inter alia, . |
24 "the invalidity of the Commissioner's charge and conflicts ’
05 of interest which invalidated the investigation and denied }
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1 procedural and substantive due process to Sears." On January | . RE2 24, 1979, Sears sued EEOC, among other parties, "seeking to SEE SI
3 require the federal government to cease restricting the employment -
4 opportunities of American citizens." :
On October 22, 1979, EEOC filed five separate actions
° (which are the subject of the present motion before the Panel) SR REE
6 in five districts against Sears. Each action is brought under Co g
7 Title VII of the Civil Rights Act of 1964, as amended, 28 U.S.C. : TE B
8 §2000e et seq. (1976) (Title VII).
9 The complaint in the Illinois action alleges that, in
10 violation of Title VII, Sears has, since July 2, 1965, intention- E : RI
11 ally engaged in, and continues intentionally to engage in, PU x
10 employment practices that discriminate against female individuals.
The alleged unlawful practices include, but are not limited
13 to, discrimination in recruitment, selection, assignment, transfer
14 training, promotion, wages and policies related to pregnancy : -
15 at all Sears facilities in the continental United States.
16 EEOC also alleges that Sears has willfully violated Sections
17 6(d)(1l) and 15(a)(2) of the Fair Labor Standards Act, 29 U.S.C. oo Co
18 §206, by discriminating against female employees by paying : Le
19 them at its establishments throughout the United States at
rates lower than the rates at which it pays wages to male employees
2° in those establishments for equal work on jobs, the performance
21 of which requires equal skills, effort, and responsibility, : }
22 and which are performed under similar working conditions. =
23 The complaint in the Tennessee action alleges that Sears Co
24 has intentionally engaged in, and continues intentionally to
55 engage in, unlawful employment practices that discriminate || FPi—~-MAR—3.27-79.6M-.1781

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. 1 against black applicants with respect to hiring at one of its
® 2 facilities in Memphis, Tennessee.
3 The complaint in the New York action alleges that Sears
" has intentionally engaged in, and continues intentionally to
engage in, unlawful employment practices that discriminate
> against black and Hispanic applicants at two Sears' facilities
6 in the New York City area.
7 The complaint in the Georgia action alleges that Sears
8 has intentionally engaged in, and continues intentionally to
9 engage in, unlawful employment practices that discriminate
10 against black applicants at three of its facilities in the
11 Atlanta, Georgia area.
The complaint in the Alabama action alleges that Sears
12 has intentionally engaged in, and continues intentionally to
( 13 engage in, unlawful employment practices that discriminate
14 against black applicants with respect to hiring at one of its
15 facilities in Montgomery, Alabama.
16 Only limited discovery has occurred in each of the actions.
17 In addition, motions to dismiss and/or motions for summary
18 judgment are pending in each of the five actions. These motions |
19 are based on, inter alia, allegations of misconduct by EEOC,
including conflicts of interest among EEOC personnel involved
20 in EEOC's investigation of Sears.
21 Presently before the Panel is a motion filed by EEOC,
22 pursuant to 28 U.S.C. §1407, to centralize all actions in this
23 litigation in the Northern District of Illinois for coordinated
24 or consolidated pretrial proceedings. Sears opposes the motion.
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1 | We find that, although some or all of these actions may | .
2 involve some common questions of fact, transfer under Section
3 1407 would not necessarily serve the convenience of the parties
4 and witnesses or promote the just and efficient conduct of
5 the litigation. Accordingly, we deny the motion to transfer.
EEOC states as follows in its reply brief before the Panel:
° While Sears' role in controlling and monitoring the employment;
7 practices of all its facilities may raise certain common
issues, it is clear that the distinctive elements of the
8 issue of Sears’ liability in these five cases -- one involving
across-the-board allegations of sex discrimination at
3,000 facilities, the others involving allegations of
9 hiring discrimination as to minorities at no more than
three facilities in any one case -- overwhelmingly predominate].
10 Nevertheless, EEOC argues that transfer under Section
11 1407 is appropriate in order to resolve the questions raised
12 by Sears in its motions for dismissal and/or summary judgment.
13 EEOC contends that resolving those motions will raise the following
14 common questions of fact, inter alia: (1) "whether [Sears']
15 requested discovery of [EEOC's] internal process is sufficiently
16 relevant and material to justify the expense and inconvenience
to [EEOC] of complying with the requests"; and (2) "whether
tr [Sears'] need for the requested discovery outweighs	the privileges
18 [EEOC] will assert with respect to much of the material sought
19 and outweighs the rights of privacy of [EEOC] employees to
20 whom parts of the discovery pertain." EEOC represents that
21 Sears has made "extensive" and "identical" interrogatory inquiries
29 in each of the actions, and that Sears is seeking confidential
93 memoranda that EEOC contends are protected by the attorney-client
privilege.
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Thus, EEOC asserts, coordinated or consolidated pretrial
’ ! proceedings before a single judge would prevent unnecessary
® 2 duplication in discovery, eliminate the possibility of inconsistent
3 pretrial rulings, and reduce the expense and inconvenience
4 to the courts and all parties.
5 We find movant's arguments self-defeating. Individual
6 rather than common factual questions predominate regarding
7 the liability aspects of the five actions before us, as movant
8 candidly recognizes. EEOC represents that it is pushing for
denial of the dismissal and/or summary judgment motions without
i discovery. If EEOC prevails on this contention, these motions
10 will involve no factual questions. If EEOC loses on this con-
11 tention, resolution of the motions, at best, will involve mixed
12 questions of fact and law. In any event, whatever common questions
13 of fact that may be involved in determining these motions are
[| 14 simply insufficient, in our view, to overcome the overall pre-
15 dominance of individual factual questions regarding all the
issues presented in each of these five actions. Thus, we conclude
re that these actions can proceed more expeditiously if left alone.
17 Compare In re Gasoline Lessee Dealers Antitrust Litigation,
18 479 F. Supp. 578, 580 (J.P.M.L. 1979) with In re Oklahoma Insurance
19 Holding Company Act Litigation, 464 F. Supp. 961, 965 (J.P.M.L.
20 1979).
21 We observe that suitable alternatives to Section 1407
29 transfer are available in order to minimize the possibility
03 of duplicative discovery, especially because the same plaintiff
and defendant are involved in all five actions. For example,
® 24 notices for a particular deposition could be filed in all actions,25 thereby making the deposition applicable in each action; the
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1 relevant to more than one action may be used in all those actions; }
5 either party could seek orders from the appropriate district
3 courts directing the parties to coordinate any pretrial efforts
germane to more than one action; and either party may request
* from the appropriate district courts that discovery completed
> in any action and relevant to one or more of the other actions
6 be made applicable to those actions. See also In re The Upjohn
7 Company Antibiotic Cleocin Products Liability Litigation, 81
8 F.R.D. 482 (E.D. Mich. 1979); Manual for Complex Litigation,
9 Parts I and II, §§3.11 (rev. ed. 1977). Also, consultation
10 and cooperation among the five concerned district courts, if
1 viewed appropriate by those courts, coupled with the cooperation
: of the parties, would minimize the possibility of conflicting
12 pretrial rulings. See In re Texas Instruments Inc. Employment
13 Practices Litigation, 441 F. Supp. 928, 929 (J.P.M.L. 1977). [
14 IT IS THEREFORE ORDERED that the motion pursuant to 28
15 U.S.C. §1407 to transfer the actions listed on the following
16 Schedule A be, and the same hereby is, DENIED.
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1 DOCKET NO. 413
: Schedule A |
_ 3 |	Northern District of Illinois |
3 Equal Employment Opportunity Commission v. Sears, Roebuck
& Co., C.A.No. 79C4373
4 Northern District of Georgia
Equal Employment Opportunity Commission v. Sears, Roebuck
5 & Co., C.A. No. C79-1957A
Middle District of Alabama
6 Equal Employment Opportunity Commission v. Sears, Roebuck& Co., C.A. No. 79-507-N
Western District of Tennessee
7 Equal Employment Opportunity Commission v. Sears, Roebuck
& Co., C.A. No. 79-2695-B
8 Southern District of New York
Equal Employment Opportunity Commission v. Sears, Roebuck
9 & Co., C.A. No. 79 Civ. 5708
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