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September 22, 2004.


The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


The Equal Employment Opportunity Commission ("EEOC") has filed this class action lawsuit against Defendant Caterpillar Inc., alleging a pattern and practice of sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Complaint arises out of a Charge of Discrimination filed by Karon Lambert, a former employee of Caterpillar, in which she alleged that her supervisor sexually harassed her and then terminated her employment when she rebuffed his advances. The charge did not purport to raise any "pattern or practice" claims, but the EEOC seeks in this case to represent a "class of female employees." Asserting that this lawsuit is limited by the scope of Ms. Lambert's charge, Caterpillar seeks partial summary judgment on the EEOC's class-based allegations. For the reasons set forth below, the motion is denied.


  Karon Lambert worked for Caterpillar as an Industrial Hygiene & Safety Supervisor at the company's Aurora, Illinois facility. (Def. 56.1 ¶ 6.)*fn1 Throughout her employment, she reported to Robert Garcia, Caterpillar's Safety & Security Manager. (Id. ¶ 7.) On February 5, 2002, Lambert filed a Charge of Discrimination with the EEOC alleging that Garcia terminated her employment on January 3, 2002 because she rejected his sexual advances. (Id. ¶¶ 6, 8, 9.) The charge did not allege that Garcia or any other Caterpillar employee had sexually harassed or retaliated against any other named female employees, though it did state generally that Garcia "advised me [Lambert] which . . . employees would `sleep with me' if given an opportunity"; that Garcia said Lambert was "a part of his `harem'"; and that Garcia "would make comments about women in the office and identify those who had `good looking boobs.'" (Id. ¶ 10; Pl. 56.1 Resp. ¶ 10; Charge of Discrimination, Ex. A to Pl. 56.1.)*fn2

  On February 6, 2002, the EEOC sent Caterpillar a Notice of Charge of Discrimination ("Notice") regarding Lambert's charge. The Notice had an "X" marked in the box indicating that Lambert "claims to be aggrieved," but did not have a similar mark indicating that she was "filing on behalf of another." (Def. 56.1 ¶¶ 12, 13.) Caterpillar responded to Lambert's charge on March 5, 2002, denying the allegations and submitting affidavits from three female employees — Ergonomics Coordinator Jessica Hardy, Safety Statistician Jennifer Logel, and Ergonomics Intern Vickie Pittenger — all of whom denied that Garcia had acted unprofessionally or inappropriately towards them. (Id. ¶¶ 9-21; Hardy, Logel, and Pittenger Affs., Exs. B, C, and D to Def. 56.1; Statement of Position, Ex. 3 to Miller Aff., at CAT0061-0063.) Caterpillar claims that "[a]t no time did [the company] believe that the EEOC was investigating any class-type allegations." (Id. ¶¶ 17, 18.)

  The EEOC insists that on May 15, 2002, Investigator Kathleen Leaver told two Caterpillar managers, Sharon Hoerr, Corporate Employment Programs, and William Miller, Labor Relations Representative, that women other than Lambert had complained about Garcia's sexual harassment. Specifically, Leaver assertedly reported that Judy Green Sawyer, an employee of Vallens Safety Supply, an independent contractor that operated the Safety Store at Caterpillar's Aurora facility, told Leaver during an interview on March 14, 2002, that Garcia had sexually harassed her on multiple occasions.*fn3 (Id. ¶ 27; Pl. 56.1 Resp. ¶ 18; Leaver Decl. ¶¶ 7, 8; Pl. 56.1 ¶ 12; Leaver Notes of 3/14/02, Ex. 2 to Leaver Decl., at E096.) In addition, the EEOC notes that as part of its investigation, it requested "all employee complaints made against Mr. Garcia, including those made by contracted employees," and not just complaints raised by Lambert. In response to that request, Caterpillar disclosed that Ann Marie Logan, a manager trainee with Vallens Safety Supply, had alleged that Garcia had brushed against her breasts, making her feel uncomfortable.*fn4 According to Leaver, Logan told her during an April 30, 2002 interview that Garcia had also "touched Melanie [Hatland], Judy [Green Sawyer], [and] Dena [Behrens]." (Def. 56.1 ¶¶ 25-27, 29; Pl. 56.1 Resp. ¶¶ 36, 39, 45; Leaver Notes of 4/30/02, Ex. 1 to Leaver Decl., at E088; Pl. 56.1 ¶¶ 15, 16.)

  Miller says that Logan admitted during Caterpillar's investigation of the complaint that she did not know whether Garcia's conduct was inadvertent or intentional. (Def. 56.1 ¶ 28; Miller Aff. ¶ 16.) Leaver insists, however, that Logan told her during the April 30, 2002 interview that she had notified Caterpillar that Garcia's actions were intentional. (Pl. 56.1 Resp. ¶ 28; Leaver Notes of 4/30/02, Ex. 1 to Leaver Decl.) In any event, after investigating Logan's complaint, Caterpillar removed Garcia from his responsibility for the Safety Store on or about February 25, 2000, "as a precautionary measure." (Def. 56.1 ¶ 30; Answers to Questionnaire, Ex. 4 to Miller Aff.) Logan reportedly told Leaver, however, that after about a month, Garcia started going into the store again "but would bring security with him and smirk at Logan." (Pl. 56.1 Resp. ¶ 30.) On May 15, 2002, the EEOC interviewed Garcia, Hardy, and Logel at Caterpillar's Aurora facility.*fn5 Hardy and Logel denied that Garcia had ever acted inappropriately towards them and generally failed to corroborate Lambert's allegations against him. (Def. 56.1 ¶¶ 32, 33; Pl. 56.1 Resp. ¶ 33.) On September 13, 2002, the EEOC issued its Determination of Lambert's charge, finding that "the evidence obtained in the investigation establishes reasonable cause to believe that Caterpillar discriminated against Lambert and a class of female employees, based on their sex, female, in that they were subjected to sexual harassment and retaliation, including discharge." (Id. ¶ 35; Ex. 5 to Miller Aff.) The Determination did not identify any female employees other than Lambert who had allegedly been subjected to sexual harassment or retaliation. (Id. ¶ 37.) Caterpillar claims that the Determination letter constituted its first notice of class-wide Title VII allegations. (Id. ¶¶ 36, 39, 45.)

  On August 13, 2003, the EEOC filed this lawsuit alleging that Caterpillar subjected Lambert and "a class of female employees" to a pattern and practice of sexual harassment and retaliation since at least 1999. (Def. 56.1 ¶¶ 42, 43.) The Complaint does not identify by name any female employees besides Lambert who were subjected to sexual harassment and retaliation. (Id. ¶ 47.)


  Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, the court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001). The court's function in ruling on a motion for summary judgment is not to weigh the evidence, but rather to determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249. Where factual matters are in dispute, the court is required to credit the nonmovant's version of events. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 802 (7th Cir. 2000).

  Caterpillar seeks partial summary judgment on the EEOC's pattern and practice claim, arguing that (1) there is no reasonable nexus between Lambert's charge and the pattern and practice allegations; (2) the pattern and practice claim did not grow out of the EEOC's investigation of Lambert's charge; and (3) pattern and practice claims are not appropriate in sexual harassment cases. The court addresses each argument in turn.

  A. Reasonable Nexus

  Title VII establishes several prerequisites to the EEOC's filing suit in federal court: (1) a timely charge of discrimination; (2) employer notification and an investigation; and (3) if reasonable cause is found, an attempt to eliminate the offending practice through "conference, conciliation, and persuasion." EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996). If conciliation fails, the EEOC may commence a civil action and may allege "whatever unlawful conduct it has uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint." Id. See also 42 U.S.C. § 2000e-5.

  Caterpillar argues that the EEOC cannot assert pattern or practice allegations in this case because it did not first file a Commissioner's charge raising such claims. (Def. Mem., at 3-5.)*fn6 Title VII provides that "the Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission." 42 U.S.C. § 2000e-6(e). In Caterpillar's view, "[b]ecause [Lambert's] charge was not a pattern and practice charge, the ...

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