The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
The Equal Employment Opportunity Commission ("EEOC") brought this employment discrimination suit against International Profit Associates, Inc. ("IPA") under Title VII of the Civil Rights Act of 1964, enacted as amended at 42 U.S.C. § 2000e et seq. (2006) and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The EEOC alleges that IPA engaged in a pattern or practice of sexual harassment and seeks prospective relief on behalf of a class*fn1 of individual claimants. The EEOC also seeks compensatory and punitive damages on behalf of these individual claimants. This matter is currently before the court on IPA's motion for summary judgment on the EEOC's pattern or practice claim.
As its number denotes, this case is long in the tooth, and its age is due in large part to its extensive summary judgment history. IPA previously sought summary judgment on the individual claims in this case in a series of motions spanning several years. Prior to addressing the substance of these motions, the court, with assistance from the parties, resolved numerous questions regarding the legal framework of this case. See EEOC v. Int'l Profit Assocs., Inc. (IPA I), No. 01 C 4427, 2007 WL 844555 (N.D. Ill. Mar. 16, 2007); see also EEOC v. Int'l Profit Assocs., Inc. (IPA II), No. 01 C 4427, 2007 WL 3120069 (N.D. Ill. Oct. 23, 2007). The court then addressed IPA's motions on the individual claims in three opinions over two years. See EEOC v. Int'l Profit Assocs., Inc. (IPA III), No. 01 C 4427, 2008 WL 4876860 (N.D. Ill. July 14, 2008); see also EEOC v. Int'l Profit Assocs., Inc., 654 F. Supp. 2d 767 (N.D. Ill. 2009); EEOC v. Int'l Profit Assocs., Inc., 647 F. Supp. 2d 951 (N.D. Ill. 2009).
IPA did not indicate that it would seek summary judgment on the EEOC's pattern or practice claim until a September 2009 status hearing, when it requested leave to file the instant motion. In that hearing, IPA's counsel summarized the issue meriting consideration as follows:
[H]ere's the issue: . . . you have to look at the volumetrics, the mathematics of the number of people during the period of time in the company who were the subject of harassment versus the amount of people who go through the company to see whether or not it's useful to talk about a pattern and practice. . . .
Here's the issue I want to brief, your Honor. If we are correct that the principles of this case law apply, and looking at the numbers over the period of time, the numbers of people who are plaintiffs is [sic] less than a half percent of the total workforce of IPA over the relevant period.
I think that your Honor could, on the basis of that, grant us summary judgment on the pattern and practice. (Sept. 9, 2009 Tr. 6:3-13, 6:19-7:1.) Counsel repeatedly emphasized that the basis of the proposed motion, which the court granted IPA leave to file, would be a statistical argument, and made no mention of any other basis for summary judgment on the EEOC's pattern or practice claim. However, in the instant motion, IPA goes beyond the statistical argument outlined above to also maintain that the facts and circumstances prevailing at IPA entitle it to summary judgment (even if numbers alone do not) and that, even if a pattern or practice once existed at IPA, the EEOC is not entitled to injunctive relief in this case.
The parties have had nearly a decade to anticipate legal strategy in this case, and several years to anticipate their summary judgment briefs in particular. The court originally required that the parties file dispositive motions by July 15, 2004, nearly six years ago, see Doc. No. 210, and has extended that deadline three times on IPA's motion, seeDocs. Nos. 285, 289, 303, 306, 367, and several more times to adequately resolve the dozens of individual motions. The parties and the court spent over two years litigating and deciding IPA's individual motions. During this period, IPA had the foresight to request staggered deadlines for those summary judgment motions, see Doc. No. 487, but made no mention of any forthcoming "pattern or practice" summary judgment motion.
Given this extended summary judgment schedule and IPA's in-court representation of a limited basis for the instant motion, the court will not consider IPA's fact-intensive non-statistical arguments, and denies the instant motion on those separate asserted grounds. Instead, the court will consider the instant motion only on the ground presented in the September 2009 status hearing--i.e., that the number of individual claimants is too statistically insignificant to present a triable claim for a "pattern or practice" of sexual harassment.
The court likewise declines to reconsider its previous ruling that the EEOC can maintain its "pattern or practice" claim under section 706, 42 U.S.C. §2000e-5, which reconsideration IPA urged in a still-later filing. In IPA I,the court addressed and rejected IPA's contention that the EEOC was not entitled to pursue a "pattern or practice" claim pursuant to section 706. See IPA I, 2007 WL 844555, at *9. Since that opinion, other courts have had the opportunity to opine on the same narrow question. IPA calls the court's attention to a recent decision holding that the EEOC cannot pursue a pattern or practice claim under section 706. See Serrano v. Cintas Corp., Nos. 04-40132 & 06-12311, 2010 WL 522846, at *13 (E.D. Mich. Feb. 9, 2010). In reaching its decision, the Serrano court summarized this court's opinion in IPA I as well as the opinions of two other district courts on the same narrow question, ultimately departing from this court's interpretation of section 706. Id., 2010 WL 522846, at *9-*12.
While the Serrano court's opinion is thorough and cogent, this court declines to follow it. In EEOC v. Scolari Warehouse Markets, Inc. (Scolari), 488 F. Supp. 2d 1117, 1144-46 (D. Nev. 2007), decided just shy of two months after this court's IPA I decision, another district court also found that section 706 permits the EEOC to pursue a "pattern or practice" claim, much like it could under section 707. The Scolari court reasoned that, while allowing "pattern or practice" claims to proceed under section 706 "creates an apparent redundancy in the law," given section 707's explicit provision for such claims, the liberal construction given to Title VII and the statute's remedial purpose both counseled the allowance of such claims to ...