On September 21, 2011, the Equal Employment Opportunity Commission (EEOC) filed this federal Southern District of Texas lawsuit against Bass Pro Outdoor World, LLC, for alleged violations of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC alleged that since November of 2005 Bass Pro engaged in a nationwide pattern or practice of denying employment to qualified black and Hispanic applicants for hourly and salaried positions and that it retaliated against employees who opposed actions they perceived as unlawful or who otherwise complained or reported such incidents (including but not limited to sexual harassment and gender discrimination). The EEOC also alleged that Bass Pro destroyed or failed to preserve relevant records in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), such as employment applications, personnel files, tests, lists of job candidates, and efforts to contact the corporate complaint center. The EEOC sought back pay, economic compensation, compensation for emotional suffering, punitive damages, and reinstatement on behalf of those affected and sought injunctions to end the allegedly discriminatory and retaliatory practices and to create and preserve records in compliance with the Civil Rights Act. Unusually, for the EEOC, the lawsuit was based on a "Commissioner's Charge" rather than a complaint by an employee.
The case is still in early stages and a significant portion of it has been devoted to the sufficiency of the allegations and to jurisdictional issues, as described below.
Bass Pro responded to the EEOC's 9-page complaint on January 5, 2012 with a motion to dismiss complaint under Rule 12(b)(6) of the Federal Rules of Procedure for failure to state a claim upon which relief can be granted. On January 26, 2012, the EEOC filed a 12-page amended complaint giving more factual detail for its allegations, such as statistics on the number of black and Hispanic managers and another instance of retaliation. In this complaint the EEOC also added Bass Pro, Inc., and Tracker Marine, LLC, as defendants. Because the EEOC had filed a new complaint, the Court (Keith P. Ellison) denied Bass Pro's motion to dismiss the original complaint as moot. On March 5, 2012 Bass Pro filed a new motion to dismiss seeking, among other things, to have all claims dismissed under Rule 12(b)(6) but also to have the claims against Tracker and Bass Pro, Inc. dismissed on jurisdictional and procedural grounds.
On May 31, 2012, the Court granted Bass Pro's in part, giving the EEOC leave to amend the complaint. 884 F.Supp.2d 499 (S.D. Tex. 2012). The Court found that the EEOC had made sufficient allegations to state the recordkeeping claim. Because the EEOC had not identified even one particular individual for its retaliation claim, that claim was dismissed with leave to amend. The Court's treatment of the discrimination claims involved two questions of law on which, as of this writing, courts are split: the Court ruled that the 300-day limitation (barring suits for conduct that occurred more than 300 days before a charge is filed with the EEOC) applies to both claims under § 706 and claims under § 707 (pattern or practice); the Court also ruled that the EEOC could not proceed on a hybrid § 706 and § 707 claim--pattern or practice claims could not be brought under § 706, and the EEOC had to provide sufficient allegations for each type of claim. For those reasons the Court restricted the EEOC's claims to those that fell within the time period and dismissed the EEOC's discriminatory hiring claims because the statistics on managers did not plausibly suggest a pattern or practice of hiring discrimination for the wider category of salaried and hourly positions, as opposed to just manager positions.
The EEOC filed a 247-page second amended complaint on July 20, 2012. The complaint greatly elaborated the factual details of the claims. The most notable additions were as follows: connecting the behavior of store lower-level management to a profile allegedly established by the owner of the companies at a meeting of Store General Managers; listing a total of 201 individuals (184 black and 18 Hispanic) covering a range of states who were denied employment with details of their application efforts; identifying 5 targets of retaliation and narrating their attempts to complain about or correct unlawful activity; providing statistic data from 24 stores across the country on the number of total black and Hispanic employees as well as store-specific comparisons of percentages of black and Hispanic Bass Pro employees to the percentage of black and Hispanic employees in the county respectively (the comparisons involved manager and non-manager positions). The complaint did not explicitly differentiate §706 claims from §707 claims. The complaint also addressed jurisdictional issues.
Bass Pro filed another motion to dismiss for failure to state a claim on August 24, 2012. On October 25, 2012, the Court dismissed the claims against BPI for lack of jurisdiction but deferred deciding jurisdiction over Tracker because Bass Pro had misidentified Tracker Marine Retail, LLC, as Tracker Marine and the EEOC hadn't had a full opportunity for discovery to establish jurisdiction.
On March 18, 2013, the Court granted Bass Pro's motion to dismiss in part, with leave to amend. Noting that the allegations did not constitute a prima facie case of discriminatory hiring under § 706, the Court found them sufficient to state the claim. The Court held the combination of statistics and anecdotes to be sufficient to state a §707 pattern or practice claim. The Court dismissed retaliation claims for 2 of the 5 individuals. The record-keeping claim was still valid.
The EEOC filed a third amended complaint on April 15, 2013 adding details for the retaliation claims that had been dismissed. On May 15, 2013, Bass Pro filed its response and a motion for summary judgement (final judgement without a jury because the law permits only a certain outcome). On June 5, 2013, the Court gave the EEOC four weeks to determine whether the case needed additional discovery, with discovery and filing deadlines depending on the answer. As of this writing, there has been no further development in the case. The case is ongoing.Kenneth Gray - 06/20/2013