The EEOC contends that res judicata is inapplicable because res judicata only applies when the parties or those in privity with them are identical in both the prior and present actions, and the same cause of action is involved in both suits. The EEOC argues that the prior actions only involved the employees, and not the EEOC. Res judicata does not apply because the EEOC was not a party, or in privity with a party, to the prior actions. The EEOC also argues that the prior cases did not resolve the legality of Form PF-116-B/C, so these prior cases are not res judicata in the present case.
As a general matter, res judicata does not bar the EEOC in the present case. "The EEOC exists to advance the public interest in preventing and remedying employment discrimination. . . ." General Telephone Company v. EEOC, 446 U.S. 318, 331, 64 L. Ed. 2d 319, 100 S. Ct. 1698 (1980). "When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it also acts to vindicate the public interest in preventing employment discrimination." Id. at 326. In fact, under the ADEA, an individual's right to seek redress is subordinate to the enforcement activities of the EEOC. Nicholson v. CPC International, Inc., 877 F.2d 221, 225 (3d Cir. 1989). The EEOC may "sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices." General Telephone, 446 U.S. at 324-25. The EEOC is "not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable." Id. at 331.
A number of courts have considered the issue of whether the EEOC is barred by res judicata due to prior individual actions by charging parties. These courts uniformly find that res judicata does not apply to the EEOC.
See EEOC v. North Hills Passavant Hospital, 544 F.2d 664 (3d Cir. 1976) (involuntary dismissal of charging party's private action does not bar EEOC from filing suit; Title VII action); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987) (settlement of charging plaintiff's claim does not moot the EEOC claim; Title VII action); EEOC v. United Parcel Service, 860 F.2d 372, 374 (10th Cir. 1988) (EEOC has standing by itself to challenge a policy of ongoing discrimination. The fact that the original plaintiff settles his claim does not moot the EEOC's claim; Title VII action); EEOC v. McLean Trucking Company, 525 F.2d 1007, 1010 (6th Cir. 1975) (EEOC is not barred by res judicata from basing its complaint on charges of discrimination which it did not agree to settle; Title VII action). These cases apply as a rationale the fact that the United States has an interest in enforcing federal law that is independent of any claims of private citizens. As stated by one court, "the government is not barred by the doctrine of res judicata from maintaining actions asking courts to enforce federal statutes implicating both public and private interests merely because independent private litigation has also been commenced or concluded." Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692 (7th Cir. 1986).
However, although the EEOC is not barred by res judicata, most courts have not allowed individual claimants to recover both on their own behalf and then again pursuant to an EEOC action. See EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) (claim for backpay in an EEOC Title VII action on behalf of charging plaintiff is moot once plaintiff settles); EEOC v. Cosmair, Inc., L'Oreal Hair Care Division, 821 F.2d 1085, 1091 (5th Cir. 1987) ("Although an employee cannot waive the right to file a charge with the EEOC, the employee can waive not only the right to recover in his or her own lawsuit but also the right to recover in the suit brought by the EEOC on the employee's behalf."); New Orleans S.S. Ass'n v. EEOC, 680 F.2d 23, 25 (5th Cir. 1982) ("The EEOC may challenge a transaction which was the subject of prior judicial scrutiny in a private suit, if the subsequent challenge seeks different relief."); EEOC v. McLean Trucking Company, 525 F.2d 1007, 1011 (6th Cir. 1975) (charging party who settles may not recover any private benefit from the EEOC suit such as backpay, but may enjoy the benefits inuring to all employees as the result of any unlawful practices which may be proved to exist or the benefits of improvements in working conditions).
At least one court has allowed a plaintiff to recover pursuant to both an individual action and an EEOC action. EEOC v. Dayton Tire and Rubber Company, 573 F. Supp. 782 (S.D.Ohio 1983) (EEOC may recover monetary damages on behalf of a charging party who has settled his claim). The rationale of this case is that the EEOC acts in the public interest. As a means of vindicating the public interest, the "EEOC may feel that only a larger settlement (or award) will deter violations of the discrimination laws by the present defendants or similarly situated defendants." Id. at 787.
Considerations of equity persuade this Court that employees Mitchell, Ward, Thayer and Coventry shall be allowed to recover improperly withheld pension benefits. 29 U.S.C. § 626(b) provides that in EEOC actions to enforce the ADEA, a court has jurisdiction "to grant such legal and equitable relief as may be appropriate to effectuate the purposes [of the ADEA]." Courts have broad power under § 626(b) to award equitable relief. Nicholson v. CPC International, Inc., 877 F.2d 221, 228 (3d Cir. 1989). The inclusion of equitable relief in § 626(b) demonstrates that Congress intended the victims of age discrimination to be made whole by restoring them to the position they would have been in had the discrimination never occurred. Blum v. Witco Chemical Corporation, 829 F.2d 367, 373 (3d Cir. 1987). Courts hearing ADEA actions are vested with power to resolve the problem of age discrimination effectively. Nicholson, 877 F.2d at 228-29. "Congress intended the EEOC and the courts to 'eliminate' discriminatory practices from the workplace. . . ." Id. at 229.
This case differs from most of the previously cited cases which denied employees the ability to recover pursuant to an EEOC suit. The present case does not present the situation where an employee willingly chooses to settle his lawsuit. Instead, these employees have not recovered any compensation for USS' discriminatory actions. Allowing these employees to recover pursuant to the EEOC action will not provide the employees with an impermissible double recovery. See General Telephone, 446 U.S. at 333; Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 n.14, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). Additionally, the scope of the EEOC action is broader than that of the individual actions -- the EEOC is suing as a means of vindicating the public interest in equal treatment of employees.
In the present case, this Court must weigh the harm involved by allowing employees to repeatedly litigate an issue versus the harm involved by allowing USS to profit by its discriminatory practices. This Court is persuaded that considerations of equity tip the scales of justice in favor of the employees. Congress intended the EEOC and the courts to eliminate discriminatory practices. USS acted willfully in its wrongful use of Form PF-116-B/C. Such conduct must be eliminated from the workplace. Allowing these employees to recover pursuant to the EEOC action will further the public interest by deterring future violations of the discrimination laws by USS and other employers.
As admitted by the defendant, employees Coventry and Ward applied for 70/80 mutually satisfactory pensions, but such pensions were denied "on the basis of their either filing ADEA charges or advising USS that ADEA charges by them were imminent." Defendant's Objections at 2-3. The denial by USS of the pensions for these reasons violates the ADEA. See EEOC v. United States Steel, 671 F. Supp. 351 (W.D.Pa. 1987). Therefore, USS shall retroactively reinstate Coventry and Ward to mutually satisfactory 70/80 pensions.
USS also admits that "Gary Thayer applied for and received a 70/80 mutually satisfactory pension effective December 1, 1982, which pension was reclassified to a 30 year sole option effective July 1, 1983 as a result of his opting into the [ Coventry v. United States Steel Corp., No. 83-977 (W.D.Pa.)] lawsuit." Defendant's objections at 3. Such reclassification violates the ADEA. EEOC v. United States Steel, 671 F. Supp. 351. Therefore, USS shall retroactively reinstate Thayer to a mutually satisfactory 70/80 pension.
As to Robert Mitchell, USS states that Mitchell "requested a 70/80 mutually satisfactory pension [on November 29, 1982] which request was denied because Mr. Mitchell had been placed on layoff on July 15, 1982." Defendant's Objections at 3. However, evidence exists that Mitchell requested a 70/80 mutually satisfactory pension prior to his retirement. See Letter from S. W. Menzel, Jr. to R. E. Mitchell (July 21, 1982) (stating that Mitchell requested a 70/80 mutual pension on July 1 and July 19, 1982). Questions of material fact exist as to when Mitchell requested a 70/80 mutual pension and why such pension was denied. Therefore, this case will proceed to trial as to these questions.
An appropriate Order will be issued.
AND NOW, this 21st day of November, 1989, upon consideration of Defendant's Motion to Supplement This Court's October 1st Injunction and to Bar Certain Claims, and, in accordance with this Court's Memorandum Opinion filed herewith,
IT IS HEREBY ORDERED that employees Avera, Bryar, Bush, Coventry, Cunningham, Fasekas, Hallas, Lewis, Mularski, Naylor, Thayer, and Ward shall be retroactively reinstated to the 70/80 mutually satisfactory pension plan, plus pre-judgment interest. Employee DiVirgilio's claim has been settled. The claims in regard to Cole and Nix are denied. A trial will be had on the claim on Mitchell's behalf.
Date: November 21, 1989