Adam J.Conti, LLC - 404.531.0701

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

MITSUBISHI MOTOR MANUFACTURING

OF AMERICA, INC., f/k/a "DIAMOND-STAR MOTORS CORPORATION,"

Defendant.

No. 96-1192
Judge McDade

PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S MEMORANDUM IN OPPOSITION TO DEFENDANT
MITSUBISHI'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("EEOC" or the "Commission") submits this memorandum in opposition to the motion of Defendant Mitsubishi Motor Manufacturing of America, Inc. ("Mitsubishi") for partial summary judgment.

INTRODUCTION

This is a case about the infection of a huge, state-of-the-art automobile manufacturing plant with the poison of discrimination. The discrimination challenged by EEOC is Mitsubishi's creation and toleration of a sexually hostile and abusive work environment in flagrant violation of federal law. The already available evidence indicates that the magnitude and scope of sexual and sex-based harassment at Mitsubishi, and the degree of managerial complicity therein, are unprecedented.

As the evidence more fully discussed below shows, sexual harassment at Mitsubishi was not isolated, insignificant, sporadic, or unknown to management. It was repeated, routine, generalized, serious, pervasive and known to and supported by management. The environment created by the harassment and the company's role in that environment amounted to Mitsubishi's standard operating procedure--its regular rather than an unusual practice. Accordingly, it constituted a "pattern or practice" of resistance by Mitsubishi to its female employees' right to work without being subjected to a sexually hostile and abusive environment based upon unwelcome sexual advances, demands for sexual favors, and other offensive verbal and physical conduct of a sexual nature or based on sex, in violation of Section 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6 ("Title VII").

A working environment conducive to sexual harassment began at Mitsubishi at the time of hire when employees were told that the Japanese did not believe women should work in factories and that female employees should not make eye contact with Japanese managers. It developed with the placement in management of personnel whose training in Japan included visits to bars where members of the audience engaged in sexual acts with prostitutes on stage. It was locked into place with management participation in large scale sex parties in Bloomington Normal hotels and in the circulation of pornographic pictures from the parties on the plant floor.

Against this background, the working environment for women inside the plant was predictable: Women were subjected to verbal and physical sexual harassment.- There was graffiti in public and private areas with obscene depictions of women and individual employees. Women were referred to by terms such as "cunt," "whore," "bitch" There were threatened and actual physical assaults. Pornographic photographs were circulated. Repeated comments were made to and about women and their sex lives. Women were propositioned. Men discussed their sexual exploits and exposed themselves to women.

Far from having effective policies and practices to eradicate and prevent sexual harassment, Mitsubishi discouraged complaints and permitted retaliation against women who dared to complain. Small wonder, then, that EEOC has already identified more than 400 male employees (Ex. 78) against whom allegations of sexual harassment have been made and more than 300 women (Ex. 85) who appear to have been victims of Mitsubishi's discrimination.

Mitsubishi's suggestion that this litigation cannot be pursued as a pattern or practice case stands reality on its head. If any sexual harassment case has ever involved a "pattern or practice" of discrimination under Title VII, this one does.

Mitsubishi's other arguments--relating to the doctrine of laches, statutory conciliation, and the impact of the 300 day charge filing period--are also without merit. All of the arguments advanced by Mitsubishi in support of its motion are dead wrong. Mitsubishi's Motion for Partial Summary Judgment must be denied in its entirety. /1

ARGUMENT

I. EEOC'S PATTERN OR PRACTICE CLAIM IS LEGALLY VIABLE AND FACTUALLY UNDENIABLE

A. Title VII Authorizes "Pattern or Practice" Cases For Class Sexual Harassment Claims

EEOC is authorized by Section 707 of Title VII to bring "pattern or practice" cases when it finds, as it has here, "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described . . ." 42 U.S.C. §2000e 6(a), (c)-(e). Freedom from sexual harassment is, of course, among the rights secured by Title VII.

The elements of a pattern or practice case were set forth by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977):

[T]he Government [must] prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts. It [must] establish by a preponderance of the evidence . . . that discrimination was the company's standard operating procedure-the regular rather than the unusual practice.

In a footnote to the quoted language, the Court cited with approval from the legislative history to Title VII, noting that the words "pattern or practice" were not intended as a term of art, but reflect only their usual meaning. Id., n.16. "When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief."

Section 707, of course, has no exception for sexual harassment claims. What Mitsubishi is seeking from this Court is an exemption from the plain language of Title VII, an exemption without precedent. While it is true that there have been few such claims brought, presumably because it is a rare case where an employer engages in sexual harassment on such a scale, the courts which have addressed the issue have had no difficulty in utilizing a Teamsters-style "pattern or practice" approach in class cases of sexual harassment. See Jenson v. Eveleth Taconite Co. 824 F. Supp. 847 (D. Minn. 1993); Neal v Director. District of Columbia Dept. of Corrections ("Neal I"), 1995 WL 517248 (Memorandum Opinion I, D.D.C. Aug. 9, 1995)(attached hereto as Exhibit ("Ex.") 1), rev'd on other grounds, sub nom Bonds v. Director.

District of Columbia Dep't of Corrections, 93 F.3d 801 (D.C. Cir. 1996).

ln its motion (styled as a "Motion for Partial Summary Judgment" rather than a motion to dismiss) Mitsubishi does not really argue that EEOC cannot state a claim of a pattern or practice of sexual harassment under Section 707, or that it has not done so. Although Mitsubishi concludes its argument on the subject by saying that "the 'pattern or practice' theory cannot apply in sexual harassment or sex-based harassment cases such as those presented here," Mitsubishi Memorandum ("Mitsu. Mem."), p. 22, it cites no authority for that proposition and has not moved to dismiss EEOC's pattern or practice claims. Indeed, Mitsubishi virtually admits that a pattern or practice claim is proper where, as here, EEOC alleges that Mitsubishi "routinely and purposefully followed a practice of ignoring, or giving very short shrift to, sexual harassment complaints" Mitsu. Mem., p. 6, n. 4.

Similarly, Mitsubishi is not making a full-blown summary judgment motion on the ultimate question of whether there is a genuine issue of material fact with respect to EEOC's "pattern or practice" claims. It is premature for the Court to decide at this stage of the litigation ╬before EEOC has taken depositions of any harassers or Employee Relations /2 personnel who investigated sexual harassment claims, and before Mitsubishi has produced disciplinary files for hundreds of alleged harassers /3--a summary judgment motion on the issue of whether there exists any genuine issue of material fact upon which a jury could reasonably find in favor of EEOC on its "pattern or practice" claim. /4

So what then is this motion about? What Mitsubishi is really objecting to in this motion is the use of Teamsters-like hearings to determine relief for individual victims after EEOC successfully proves its pattern or practice claim. Specifically, Mitsubishi argues that the normal allocation of burdens in the Teamsters recovery phase does not apply and that Jenson, supra, a case which applied the pattern or practice model to a sex harassment case, and is discussed more fully below, does not entitle claimants to a presumption that they were sexually harassed. See Mitsu. Mem., p. 13. The consequence, according to Mitsubishi, is that individualized remedial hearings do not fit neatly within the Teamster's framework insofar as the shifting of the burdens of proof is concerned.

The argument is without merit. /5 The courts that have found a "pattern or practice" of sexual harassment have proceeded in the remedial phase utilizing the very Teamster's framework that Mitsubishi claims is unworkable.

In Jenson v. Eveleth Taconite Co., 139 F.R.D. 657 (D.Minn. 1991), the court certified a class pursuant to Rule 23, /6 and, following a finding of liability on the class claims, applied the Teamsters paradigm./7 Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 874-876 (D. Minn. 1993). Similarly, in Neal v. Director. District of Columbia Dept. of Corrections. et al. ("Neal II"), 1995 WL at 517249 (Memorandum Opinion II, D.C. Cir., August 9, 1995) (attached as Ex. 2 to this Memorandum) and Neal v. Director. District of Columbia Dept. of Corrections. et al. ("Neal IV"), 1995 WL at 517246 "Memorandum Opinion IV,.D.D.C. August 9, 1995)(attached as Ex. 3 to this Memorandum), rev'd on other grounds sub nom Bonds v.

Director, District of Columbia Dep't of Corrections, supra, following a jury verdict finding a pattern or practice of sexual harassment at the District of Columbia Department of Corrections, the court established a procedure for identifying unnamed class members and determining relief pursuant to Teamsters.

Both courts used substantially the same standards for burden of proof in hostile environment sexual harassment cases as does the Seventh Circuit: a victim of such harassment must show that (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment was sufficiently severe or pervasive as to alter a term, condition or privilege of employment or to create an abusive work environment, and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 444 (7th Cir. 1994). See. Jenson, 824 F. Supp. at 876; Neal II, p. 1.

Both courts went on to kind that proof of the pattern or practice established the elements of a hostile environment claim with respect to female employees in general. Jenson, 824 F. Supp. at 30; Neal II, at 1. /8 Thus, the proof of a pattern or practice established the objective prong of the lest for environmental sexual harassment: "an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive.." Harris v. Forklift Systems. Inc., 510 U.S. 17, 21-22 (1993).

Both courts also found, as Mitsubishi argues in its Memorandum, that the Teamsters hiring case model is not identical to a sex harassment pattern or practice case. In particular, the subjective aspect of the test for a hostile environment --"If the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment," Harris, 510 U.S. at 23╬is unique to sexual harassment hostile environment claims, and requires individual proof. /9 See Jenson, 824 F. Supp at 876, Neal IV, at 8.

The fact that hiring cases and sexual harassment cases have different subjective elements, however, does not make the Teamsters model inapplicable. /10 Rather, it merely requires the court to adjust the Teamsters paradigm to account for the different elements that need to tee proven in a sexual harassment hostile environment case. In both a failure to hire "pattern or practice" case and a sexual harassment "pattern or practice" case, the claimant will bear the burden of showing those personal factors which demonstrate that she or he is a victim of the pattern or practice. In the hiring context, each class member must show that he applied and was not hired. In the sexual harassment context, each must show that she was affected by Mitsubishi's pattern or practice of harassment and/or retaliation, and subjectively offended by the pervasive hostile work environment.

In truth, EEOC and Mitsubishi are not far apart in their conclusion about the applicability of the Teamster's paradigm to sexual harassment cases. Both EEOC and Mitsubishi agree that the Teamster's model needs to be adjusted to require individual proof of each woman's subjective response to the "pattern or practice." Mitsu. Mem., p. 53. And both EEOC and Mitsubishi agree with the analysis of the court in Jenson. Mitsu. Mem., p. 13. In addressing the concerns raised by Mitsubishi, this Court need look no further than the holding of Jenson:

[L]iability to the class is established by a determination that the employer engaged in a pattern or practice of exposing women to acts of sexual harassment sufficient to alter terms and conditions of the reasonable woman's employment. Accordingly, individual class members need only show that they were at least as affected as the reasonable woman. The other elements of a hostile environment claim are established by the court's determination in the liability phase of the proceedings. [Emphasis added.]

Jenson, 824 F. Supp. at 876.

EEOC will prove a pattern or practice of sexual harassment, sex-based harassment and retaliation during the liability phase of the trial of this case. /11 It will then ask the Court to set Teamsters-style hearings at which EEOC will prove that each victim was subject to and actually offended by the hostile environment. Each claimant will be entitled to a presumption under Teamsters. deriving from the jury's liability phase verdict, that any sexual harassment to which she was subjected arose from Mitsubishi's pattern or practice. See Neal IV at p. 4. See also Jenson, 824 F. Supp. at 875. In order to be eligible for relief at the remedial Teamsters phase, each individual claimant must establish only that she is a member of the class, was unfavorably affected by Mitsubishi's pattern or practice of harassment and/or retaliation, and was offended by the hostile environment.

EEOC's proposal for the allocation of burdens in the Teamsters phase mirrors the allocations set forth in Jenson and in Neal, and should be adopted by this Court as well.

* * *

In short, Mitsubishi does not want EEOC to litigate this case in discovery and at trial as though it were a class action, and does not want there to be any presumptions established or burdens shifted as a result of a "pattern or practice" finding. Instead, Mitsubishi argues that this case should be litigated and tried (presumably over a period of months or years) as an aggregation of individual claims╬more than 300. This would, of course, be extremely burdensome to the Court and to the parties, involving the testimony from each side of those 300 plus victims and hundreds of other witnesses. But, it would not change the substantive outcome. Each victim would be entitled to show the entire environment to which she was subjected, which would include the type of evidence set forth below. "[E]vidence of sex harassment directed at employees other than plaintiff is relevant to show a hostile work environment. [Citations omitted.]" Hall v. Gus Construction Co", 842 F.2d 1010, 1015 (8th Cir. 1988). Such evidence would also be obviously relevant to whether Mitsubishi knew or should have known of the harassment. "[T]he greater the [sexual] harassment╬the more protracted or egregious, as distinct from isolated . . . or ambiguous, it is -- the likelier is the employer to know about it or to be blameworthy for failing to discover it." Carr v. Allison Gas Turbine, 32 F.3d 1007, 1009 (7th Cir. 1994)(internal citations omitted), cited in Janson v. Packaging Corporation of America, _ F.3d _, 74 Fair Empl. Prac. Cas. (BNA) 1138, 1997 WL 459001 (7th Cir., August 12, 1997) at 10, Flaum, J., concurring. Thus, were Mitsubishi's motion granted, EEOC would prove each individual claim, in part, by proof of the same pattern or practice which it has alleged under Section 707. Although possible, that would require an inordinate expenditure of judicial resources -- an expenditure not required by Title VII.

B. Evidence Demonstrates Pattern Or Practice Of Sexual Harassment. Sex-Based Harassment And Retaliation

In arguing that the proof of an objectively hostile environment and proof that Mitsubishi knew or should have known of the harassment and failed to take appropriate remedial action are highly individualized inquiries, Mitsubishi apparently argues that it is entitled to partial summary judgment because EEOC will not be able to put forward evidence at trial to establish a "pattern or practice" with respect to these cements of a sex harassment claim. In fact, as is set forth below, the evidence already available in this case overwhelmingly demonstrates that incidents of sex harassment, and Mitsubishi's failure to respond to them, were not insignificant or sporadic, but were repeated, routine and of a generalized nature. /12

The following discussion of the pattern or practice of harassment at Mitsubishi focuses on five of the types of sexual harassment which individually and together created the hostile working environment: 1) orientation during which female employees were characterized as inferior and during which management training included trips to "audience participation" sex bars; 2) sex-based harassment where women were told that they were unwelcome in the workplace and were treated less favorably than male employees; 3) the sexualized environment which included graffiti, sexual comments, objects and gestures demonstrating sexual organs and positions, and male employees exposing themselves to women; 4) display of pornography, some of which depicted Mitsubishi employees and managers engaged in sexual acts at company sex parties; and 5) verbal and physical assaults directed at individual women. Cf;, Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995), describing conduct which could constitute actionable sex harassment: "sexual assaults; other physical contact whether amorous or hostile, for which there is no consent, express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. [Citations omitted.]" Id The discussion is based primarily on the sworn declarations of approximately 50 of the class members identified by EEOC as victims and/or witnesses to the pervasive harassment and the company's ineffectiveness responding to the harassment and in eradicating harassment at the plant. /13 It also relies upon the sworn charges of a handful of the plaintiffs in Evans v. Mitsubishi, /14 on the statements of class members attached as Exhibits to Mitsubishi's Motion, and upon Mitsubishi's own disciplinary files. Obviously, the evidence introduced in this section represents but a sampling of the pattern or practice of harassment and retaliation to which female employees at Mitsubishi were subjected.

1. Orientation And Management Training: Setting The Tone

From the evidence relating to Mitsubishi's orientation and training practices for new employees emerge two startling conclusions. First, women were subjected to a hostile work environment at Mitsubishi from the day they set foot in the plant. Second, Mitsubishi's upper management set the tone for the prevailing attitude at in the plant among associates /15 and their immediate supervisors of disrespect toward women and contempt for "anti-harassment" policies.

New employees at Mitsubishi were provided with orientation during which, at least from 1988 through 1993, they received instruction on Japanese culture and were told, among other things, that Japanese businessmen believed that women should not work in factories. See e.g., Ex. 16, 25, 31, 38, 43, 50, 53. See also Mitsu. Ex. 6, 11 and 12. Women were also told that they should not touch a Japanese male on the shoulder (Ex. 50), and that female employees should not look Japanese managers directly in the face because these would be regarded as come-ons. Ex. 16, 43. In fact, one Japanese manager would not speak directly to his female subordinates. Ex. 18. Women were told during orientation that Japanese men do not believe that women are equals, and that Japanese men will walk in front of you if you are a woman. Ex. 25.

As part of orientation, new employees were taken on a tour of the plant. During such tours women were routinely subjected to catcalls, whistling, screaming and howling. See e.g., Ex. 17. One woman was so disturbed by the hostile work environment that she resigned her employment during her first week at Mitsubishi rather than be subjected to it. Ex. 17.

From the opening of the plant, Mitsubishi provided training in Japan to line supervisors and other managers. A pattern quickly developed of providing sexual entertainment for male - but not female American managers thus taken to Japan. /16 The Americans would be taken by the Japanese hosts -- members of Mitsubishi's management -- to "audience participation" bars where customers' sex acts with prostitutes were part of the entertainment. Ex. 18, 56. Back home, various men boasted about their "audience participation bar" experiences, which became widely discussed within the plant. Ex. 18, 56. Male employees at the plant would talk about certain people who would bring back "souvenirs" other than gifts (referring to sexually transmitted diseases) from their trips to Japan. Ex. 18. Such conduct set the tone for the workplace. A workplace where floor-level managers like to talk of pornographic hospitality lavished on them by the managers responsible for training them is an ominous place for women.

With such orientation, it is not surprising that women in the work place were subjected to a barrage of unwelcome physical and verbal conduct of a sexual nature or because of their sex, including, as discussed in greater detail below, verbal comments that they did not belong in the work place; graffiti in public and private areas of the plant with obscene verbal and pictorial depictions of women in general and of individual women; abusive name calling referring to them by such terms as "bitch, " "whore," "cunt" and other derogatory and insulting terms /17; display of pornography in the work place including magazines, photographs, and drawings or models of male and female sex organs /18; continents to or about specific women and their sex lives, including proposing sexual relationships and discussing sexual exploits /19; men exposing themselves to women, and physical assaults ranging from pats- on buttocks, grabbing of breasts, knocking a woman down, to criminal sexual assault. /20 The pattern or practice of harassment began in 1988 with the first management "training" in Japan, and was still going strong in the spring of 1996, immediately before the complaint in this case was filed, when several employees, including managers, displayed at work pornographic pictures of their behavior with prostitutes at sex parties arranged by Mitsubishi managers.

2. Sex-Based Harassment: Pervasive Anti--Female Sentiment

Female associates at Mitsubishi were told constantly by their male supervisors and coworkers that women did not belong in the plant, that they were not welcome, and that they were considered second-class employees. See, e.g., Ex. 6, 7, 9, 10, 13, 14, 15, 16, 18, 21, 24, 25, 26, 27, 30, 31, 32, 34, 35, 37, 38, 41, 44, 45, 47, 48, 50, 52, 53, 56, 60, 61, 62. This sexbased harassment, this hostility towards women merely on account of their sex, occurred on a vast scale. The hostility ranged from merely contemptuous and misogynistic to threatening. Women at Mitsubishi have been subjected to an unending stream of offensive names such as "fucking bitch" (Ex. 21), "whore" (Ex. 15) "slut" (Ex. 32, 62), "stupid bitch" (Ex. 39, 10), "lazy bitch" (Ex. 48), "moo" and "boom-boom" (Mitsu. Ex 10), "Nigger black bitch" (Ex. 60, par. m.), and "cunt" (Ex. 16). Women were constantly being blamed for problems that occurred on the line, with statement such as "It's because of the female persuasion" and "you girls couldn't do your job on the F--- line so they moved you up here." See , e.g., Ex. 13. Doctor Vlachos, the company doctor, was notorious for making anti-female remarks. One employee recalls Dr. Vlachos once telling her, "You have the 3 F's against you -- you're fat, female and forty." See also Ex. 27. See also Ex. 32.

Other examples of typical anti-female comments that pervaded the work environment include:

* "If you can't do the job you fucking women shouldn't be here." (Ex. 26)

* "I bet you'd like a big click instead of money." (Ex. 14)

* "Life's a bitch and then you have to work with one." (Ex. 19)

Women were asked why they were not home cooking for their husbands. Ex. 18. One woman was told by her co-workers that the line was "no place for a whore" Ex. 62. Women were told by group leaders and by co-workers that "women should be at home pregnant.

63, p. 0035577.

Women were more likely to be assigned to perform unpleasant jobs, such as "knee jobs," which had to be performed while kneeling. Ex. 15. They were denied bathroom breaks. Ex. 32.

Some women were not so fortunate as to receive merely anti-female comments, or be made to work unpleasant jobs. They were threatened, stalked and menaced. See, e.g., Ex. 6, 7, 31, 45. Take, for example, the experiences of Victim #26. One of her co-workers, Male Assoc. #1 terrorized many of the women in her working group. See Ex. 6, 9, 26. He talked about wanting to kill women, said he would force one woman in particular to perform oral sex on him, and that he would "blow her away" just as he was ready to ejaculate. He personally threatened to kill Victim #26 and her children. Ex. 6.

Victim #26's supervisors were aware of Male Assoc. #1's behavior but they failed to stop him or even discipline him for this conduct, which continued unabated for years. Id. In response to Victim #26's complaints, her supervisor, Group Leader #1, responded, "He's a hard ~worker. He deserves a chance." Id This was typical of Mitsubishi's response to such menacing behavior. See, e.g., Ex. 7, 45. It was not until after women began filing Charges of Discrimination against Mitsubishi in late 1992 and early 1993 that the company began to react to such conduct. /21 Even today, Mitsubishi remains derelict in its duty to protect women from such threats and menacing behavior. Victim #154, for example, reported during the summer of 1996 that she was being stalked by a former boyfriend who worked at the plant, and requested merely to be moved to an area of the plant where he would not be present. Ex. 31. The company refused to honor this request even after Victim #154 began having panic attacks at work when she came into contact with him. Ex. 31. As a result of her experiences at Mitsubishi, Victim #154 now suffers from and is being treated for post-traumatic stress disorder. Ex. 31.

3. Hyper-Sexualized Environment At Mitsubishi

Victim after victim reports a work place saturated with sexuality, most of it demeaning to women. Sexual graffiti was placed on the cars as they came down the line containing sexual statements such as "Eat me" and "Suck me" (Ex. 10, 22), and on women's lockers and trucks. Ex. 39, 53. The men's bathrooms were virtually papered with sexual graffiti including insulting pictures and names and phone numbers of individual female employees. See, e.g., Ex. 5, 16, 41, 54, 55. See also Mitsu. Ex. 5, 10. Models of male and female genitals were crafted from company scrap and placed on display. Ex. 15. A crude picture depicting a woman with her legs spread apart was etched into the face shield of one female employee. Ex. 19. Whistles, cat calls and sexual comments aimed at passing women were routine. Ex. 10, 56.

A common form of "horseplay" was to pin notes on women's backs. /22 Such notes included "Blow up Doll" (Ex. 15), "Sexually overactive" (Ex. 43), and "Sperm bank, deposit here," with an arrow pointing towards the woman's buttocks. Ex. 16.

Male associates frequently engaged in physical gestures such as "humping." See, e.g., Ex. 10, 24, 31, 47. Women observed two male associates demonstrate the "doggie style" sexual position to an approving upper level manager. /23 Ex. 41, 58. Male employees engaged in painful and degrading "horse play" with air guns, shooting air between women's legs when they bent over (Ex. 8), or aiming at their breasts and buttocks (Ex. 14, 22). Water was sprayed at women's breasts. (Ex. 43)

It was common for male employees to simulate masturbation or fondle themselves in front of their female co-workers. See, e.g., Ex. 7, 15, 25. Obscene comments (for example, "The way you're sucking that sucker, you must be good. That's how you got [your boyfriend] ") continued to be made as late as October, 1996, long after EEOC filed this suit. Ex. 11. Other male employees exposed themselves to their female co-workers. Ex. 16, 26, 31, 44.

4. Pornographic Materials In The Plant

The victims' declarations paint a picture of a work place littered with pornographic materials. Ex. 10, 15, 35, 47, 58. Sexually explicit graffiti was placed in a booth in the metal repair department. Ex. 24. Pornographic pictures were drawn with finesse (a liquid used for buffing) while working on the line. Ex. 26. Pornographic pictures appeared in the Maintenance Quality Control Room. Ex. 7. During a period of several weeks men passed around photos of women having sex with animals. Ex. 12.

5. Verbal And Physical Sexual Assaults

Male employees, including numerous supervisors-made frequent verbal comments about the bodies of female employees. See, e.g., Ex. 12, 25, 38, 48. See e.g. Mitsu. Ex. 11. They also proposed or imagined sex acts. See e g., Ex. 5, 12, 15, 22, 23, 25, 30, 31, 32, 38, 47, 52, 54. See also Mitsu. Ex. 8.

One male worker would make repeated sexual remarks to numerous women such as "I'd like a hot bath and lick you all over" and "I suppose a fuck is out of the question." Ex. 15. Objects were thrown down women's blouses. Ex. 22. Obscene insults directed at particular women were common. See, e g., Ex. 13, 35, 50, 55. One woman was forced to endure the humiliation of a string of offensive statements written about her on display in her work area, containing witty insults like "V...'s like a doorknob. Everybody takes a turn,. and 'The line for blow jobs start here for V." Ex. 32. Another woman was told of her picture in the men's room, depicting her having sex with a horse and including the words "free riding lessons." Ex. 26. Another woman observed a drawing on a piece of cardboard propped on a car moving down the assembly line, which, with her name, depicted her having anal intercourse. Ex. 47. A note saying "Do you know the five people V... slept with?" was placed on the locker of the victim's husband. Ex. 54.

Many women were persistently asked out or propositioned by their group leaders after they had made clear that such invitations were unwelcome. See e.g., Ex. 5, 6, 10, 35, 50, 55, 56. See also Mitsu. Ex. 10. When one woman asked her group leader for a paid time off day, she was told it "depends who else asks and who's the first on her knees," as he pointed to his crotch. Ex. 16.

Women were regularly squeezed and touched on the breasts, buttocks and other parts by male employees and managers. See, e.g., Ex. 14, 24, 44, 50. See also Mitsu. Ex. 11. One woman had her legs forced apart by a male associate who told her "I am going to fuck you up the ass." Ex. 33. Men would come up behind women and lean against them to simulate having sex. Ex. 31, 60 (Para. j).

The hostile and offensive environment which could range on a daily basis from annoying to disgusting also became frightening and dangerous. Male associates used threatening words and actions to women, particularly those who had complained of sexual harassment. One frequent harasser said, in front of group leaders who did nothing, that he would force one woman to have sex with him before he killed her. See Ex. 6, 7, 9, 26. One woman had a paper mache object in the form of a penis thrown in her face. Ex. 31 When another woman fainted on the conveyor belt, the associate with whom she was paired, who had been harassing her and who was angry about her complaints to Employee Relations, started the line causing her to be hit by materials on the line and to fall to the ground. Ex. 44. Another woman was accosted by two men in the plant who taped her hands and feet to a cart and pushed it up and down the aisles while people laughed. Ex. 50. In another case a male associate forcibly cut the hair of a female worker. Mitsu. Ex. 10. /24 Women were subjected to threatening telephone calls (Ex. 30; Mitsu. Ex. 4 and 11), a threat of rape (Mitsu. Ex. 11) and stalking and assaults off work premises after they had made complaints. Ex. 31, 52. One woman, driven home from work by a branch manager because she was ill, was subjected to an assault during which he stopped the car, pulled down his pants, and, despite her frightened protests, kissed her. Ex. 66.

In its Motion for Partial Summary Judgment, Mitsubishi does not argue that EEOC cannot show a pervasive hostile environment based on sex harassment, which met the objective standard of Harris, supra. See, Mitsu. Mem., p. 10. Its 58 proposed Statements of Undisputed Facts, submitted with its Motion, include no proposed facts which would deny any of the harassment set forth in this Memorandum.

C. Mitsubishi Toleration Of Hostile Work Environment

As shocking and disgraceful as the magnitude and severity of the harassment and hostility that women have suffered at Mitsubishi may be, management's complicity in fostering and maintaining such a hostile work environment is even more appalling.

Since the Supreme Court's seminal decision in Vinson v Meritor Savings Bank, 477 U.S. 57 (1986), it has been clear that the mere existence of a policy against sexual harassment is insufficient to insulate an employer from liability. Instead, an employer will be liable for sexual harassment by its supervisors and employees if it knew or should have known of the harassment and failed to take adequate steps to prevent it. This is the negligence standard set forth by the Seventh Circuit in Janson v. Packaging Corporation of America, supra. See also Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) ("The employer acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not reasonably likely to prevent the misconduct from recurring.").

Thus, Mitsubishi acknowledges that "[a]t least arguably, a pattern and practice theory may apply to a claim that the employer . . . routinely and purposefully followed a practice of ignoring, or giving very short shrift to, sexual harassment complaints." Mits. Mem. p. 6, n. 4. EEOC can already make such a showing, and as discovery progresses, the evidence will become even stronger.

The evidence shows that a) Mitsubishi has never had an effective sex harassment policy, b) victims routinely complained about sex harassment to their supervisors, the group leaders, without result, and c) that when complaints were made the to the Employee Relations Department, the consequences were little or no disciplinary action against the harassers and ostracism or even retaliation against the victims by co-workers. When a victim dared to go further and complain to EEOC, retaliation by co-workers was encouraged by Mitsubishi: derogatory and defamatory statements about plaintiffs in the Evans suit were permitted to be posted on bulletin boards (Ex. 81), employees were advised by Mitsubishi that the complaints were "vicious lies" (Ex. 71), employees were told that EEOC suit could cost male employees their jobs (Ex. 57), and women who refused to attend a march against EEOC were ostracized and threatened. Ex. 20, 37.

1. How Mitsubishi Made Such A Mess Of Things

The working environment at Mitsubishi spun out of control because the company did not have adequate policies and procedures in place to deter harassment. While sexual harassment was widespread from the time the plant opened in 1988, Mitsubishi never dealt effectively with the harassment that was brought to its attention. As will be noted repeatedly below in the discussion of the company's response to particular incidents, Mitsubishi was generally unwilling to take decisive action on sexual harassment complaints, even where other employees backed up the accuser and even when the accused had a prior history of similar complaints.

This problem was due, in large part, to the complete absence of any meaningful progressive discipline in Mitsubishi's sexual harassment policies. There was no provision for suspension of employees, for demotions, for the docking of pay, for denials of promotions. In fact, so far as EEOC has been able to ascertain through Mitsubishi's disciplinary files, Mitsubishi did not fire its first associate for sexual harassment until September of 1992; by which time the harassment at the plant was epidemic. /25 By the time that EEOC filed its Commissioner's Charge in April 1994, so far as EEOC has been able to ascertain, a total of only three associates had been fired for sexual harassment. Only in 1995 and 1996, with EEOC, the Evans plaintiffs, and the media breathing down its neck, did Mitsubishi begin to pick up the disciplinary pace. Thus, when Mitsubishi tells the Court that it has fired fifteen associates for sexual harassment (Mitsu. Mem., p.6, n.4), /26 the proper response is to ask why it took so long to reach this figure, and why is it still so small, given the widespread harassment that has occurred and the huge numbers involved.

2. Mitsubishi Management Was A Big Part Of The Problem

As is reflected in the declarations and charges of some 60 victims submitted herewith, the vast majority of the victims in this case did complain about their harassment. Many of these victims complained to their immediate supervisors. See e.g.., Ex. 4, 7, 9, 21, 23, 25, 30, 31, 32, 35, 44, 52. This was the procedure set forth in the articles which appeared in the company newsletters, "DSM encourages any employee who believes that he or she has been subjected to conduct that may constitute sexual harassment to report the offensive conduct to his or her immediate supervisor and the Employee Relations Department." (Emphasis added.) See Affidavit of Paul Betts filed by Mitsubishi ("Betts. Aff."), Ex. F and J. /27

The results of such complaints did not, to say the least, demonstrate an effective sex harassment policy. To the contrary, in case after case, Mitsubishi's own supervisory employees actively discouraged women from making complaints of harassment. One woman who complained to her group leader about a notorious harasser was told, "This is a factory. If you don't like it, go sling hamburgers." Ex. 16. Another woman asked not to be paired with the man who was harassing her. She was told by her group leader that he could not honor her request, because otherwise everyone would be making similar requests. She continued to be assigned with the harasser, even after she had complained to Employee Relations. This resulted in the incident described above when he started the line after she had fainted, thus risking serious injury to her. Ex. 44.

Although many victims of sexual harassment and sex-based harassment complained to supervisors, many others did not, for the simple reason that it was their supervisors who were doing the harassing. Harassment by supervisors at Mitsubishi was legion. Almost half of the women whose declarations are submitted herewith speak of harassment by their supervisors.

New female associates were considered fair game by many supervisors, who made unwanted sexual advances with impunity. /28 See, e.g., Ex. 6, 10. One supervisor told a new female hire that "she belonged to him" during her probationary period, and retaliated against her when she rebuked his sexual advances. Ex. 6. Another supervisor grabbed a new female hire and forcibly kissed her and groped her against her will. Ex. 24. Another supervisor's sexual harassment of new female associates earned him the nickname: "Chester the Molester" n Ex. 37.

Still other supervisors took a nastier approach toward new female hires, making comments like "women do not belong in a plant. (Ex. 7, 31) and "women should be at home," (Mitsu. Ex. 10) or failing to rotate or train new female hires (Ex. 31) or relegating women to undesirable jobs, such as "knee jobs" (Ex. 15). One woman was asked by the Manager of her department, "Why are you not at home cooking for a husband." (Ex. 18) And so on.

These supervisors were the same individuals to whom, under Mitsubishi's sexual harassment policy, women are supposed to complain. These supervisors were the same individuals who are obligated, under Mitsubishi's own sexual harassment policy, to report all incidents of harassment of which they become aware. The behavior of Mitsubishi's supervisors stands in stark contrast to the paper policies that purported to impose real responsibilities upon supervisory employees, but which were observed only in the breach. In short, Mitsubishi's supervisory employees actively contributed to creating an environment in which harassment was not only tolerated, but encouraged.

3. Employee Relations' Ineffectiveness

The attitude and conduct of Mitsubishi's supervisory employees obviously discouraged women from complaining of harassment. Despite this discouragement, scores of women did in fact complain to Employee Relations. Many of these women complained on numerous occasions. See, e.g., Ex. 7, 15, 16, 21, 31, 32, 35, 52.

When women did complain to the Employee Relations Department, the most common reaction was for ER managers to express skepticism, indifference or outright hostility, and an inability or unwillingness to address the problem. For example, one woman who complained to ER was told that if she could not tolerate the harassment, she should just quit. Ex. 31. One woman complained about an associate who was harassing her and, who following her first complaint, talked about "getting that bitch. and "kicking her ass" and waited for her outside her car. The victim complained to ER three times before he was moved from her area, she believes as the result of complaints made by other women. Ex. 52. Another woman complained three times about a man who harassed her and other females, and asked that he be transferred out of her group; she was told that it was not up to ER to make transfers. Ex. 30 29 A woman complained about an obscene drawing and was told that nothing could be done if she did not know who had placed the drawing on a truck. Ex. 39.

Another common response was to advise the work group of the complaining woman about problems with "interpersonal conflict." Ex. 15, 35. This approach of responding to claims of harassment tended merely to fuel ostracism and retaliation by male associates against women who dared to utilize the company's complaint procedure.

Even in those instances where males were found by the company to have harassed females, the company generally did not discipline the employees, other than to have them watch a thirty-minute sexual harassment video and to place a memo to the file which usually did not even contain a finding of harassment. Ex. 25. Indeed, watching the sexual harassment video became a company-wide joke, a badge of honor. Ex. 47. As far as EEOC can discern from the documents supplied by Mitsubishi, it was not until 1992 that a male employee was fired, suspended, demoted, fined or denied a merit increase because of harassment.

As is discussed above, it was rare that any meaningful disciplinary action was taken by Employee Relations against the harasser. A branch manager was promoted shortly after a woman reported to ER that she had seen him make the "jack off" gesture in front of thirty people. Ex. 15. When women complained that one of the worst harassers had exposed himself to several female employees, ER conducted an investigation by interviewing women on the line in his presence! The complaints were withdrawn after he successfully intimidated them. Ex. 9, 26. The harassment then intensified and continued for a least a year despite numerous additional complaints. Ex. 9. Another woman complained that her group leader was harassing her by attempting to kiss and grab her and by asking questions about her underwear. ER interviewed her co-workers, making them walk past the alleged harasser to meet with ER. The harasser remained as her group leader. Some women simply gave up. "If you went upstairs (to ER) for every incident, you'd be up there all the time. I only went when I could not deal with it." Mitsu. Ex. 11. /30

In a particularly shocking example, ER investigated a complaint that a woman had been assaulted while being driven home ill by her Branch Manager and was continuing to be harassed by him. Ex. 66. After determining that the victim was credible, that her complaints were, in large part, corroborated by her group leader, and that the harasser's denials were inconsistent and not credible, the recommendation was that the harasser should be removed from any supervisory position. The recommendation was ignored and the harasser remained as branch manager. Id.

Women who complained to ER were routinely ostracized or worse by their male coworkers and/or supervisors. See e.g., Ex. 29, 47, 48, 54, 55. Some women who observed such harassment did not complain. Ex. 43. As one woman who was harassed by her group leader, stated: "I was afraid to complain to ER about the sexual harassment and sex based harassment because I feared the consequences from my male co-workers. I also came to believe that I was in a 'man's workplace,' taking a 'man's job,' so I just had to endure this treatment if I wanted to keep my job." Ex. 55. Another said, "I was afraid to complain to Employee Relations because a female co-worker who had complained to ER about [the same harasser] was then directly threatened by him which made her so afraid she withdrew her complaint." Ex. 10. Given the company's practice of not imposing any meaningful discipline on its employees, and its practice of turning a blind eye to the retaliation of coworkers, it is hardly surprising that both men and women learned that complaints to ER were generally futile, and that many women were compelled to endure the harassment as a condition of employment.

Two final examples dramatically illustrate Mitsubishi's typical non-responsiveness to complaints of sexual harassment. The first involved an ER investigation of a charge filed with EEOC in late 1993 which alleged sexual and racial harassment. In response to the charge, ten male and female associates who worked with the charging party were interviewed. Ex. 60.

The investigation disclosed that "there are a lot of sexist remarks," (confirmed by at feast five of the witnesses), which included "cunt, pussy, bush; oh my dick; and I laid my old lady before coming to work." Seven of the witnesses confirmed that comments were made such as "women shouldn't be here, they should be at home pregnant," by the group leader and by the associates. At least six witnesses confirmed statements such as "nigger-this" and "nigger-that," and "black bitch." The alleged harasser was observed by two witnesses grabbing, pinching and patting women, bending over and leaning against women, including the charging party, and performing acts simulating sex about once a week. The comments were common knowledge, and everyone including supervisors knew what was going on. One witness said that the harasser had said to her and other women, "why don't you sit on my face," and that she heard the harasser say to the charging party, "bring your brown juggy mountains back here," and make comments about her "black box." The interviews disclosed that the group leader and several associates in addition to the harasser being investigated had been involved in this behavior over a period of years. Ex. 60.

The result of the investigation was that the harasser was interviewed by Employee Relations and read highlights from the sex harassment policy. He was shown the videotape. He was told that he could write a response to the letter in his file, and that ER was "not here to place judgment of guilt or innocence." Ex. 60.

The second example involved ER's response to a complaint made in 1995 which alleged that a unit group leader was sexually harassing his subordinates. ER representatives interviewed seven female associates. Ex. 67, pp. 3018568-3018560. Four of the seven women said they had been subjected to sexual harassment by the unit group leader, who was their boss. Ex. 67, pp. 3018576-3018560. Women complained of being subject to unwanted kissing, grabbing, being hugged, inappropriate touching, sexual comments, "gawking," and retaliation for complaining.

ER then interviewed the unit group leader. Not surprisingly, he admitted very few of the allegations. Ex. 67, pp. 3018573-3018569. Upon completion of the "investigation," the ER representative in charge of he investigation documented the company's response (or lack thereof) to these serious allegations:

I advised [the unit group leader] there were some very serious allegations being made about his behavior.... I advised him ... these allegations were not confirmed by any witnesses. I advised [the unit group leader] the allegations he admitted to and that were confirmed by witnesses were of a more minor degree.... I told [the unit group leader] he needed to not touch anyone....

It is my recommendation that no further action take place involving [the unit group leader].

Ex. 67, pp. 3018570-3018569.

When the ER representative informed the women that the "investigation" was complete, two women were "distraught" that the unit group leader would remain their supervisor. Ex. 67, p 3018574. One inquired about what action, if any, was taken. Id The ER representative refused to tell them. Id She then informed the women:

[N]o further investigations would be conducted into previous behaviors and we would focus on events ; that occurred from this date forward.

Id.

In other words, Employee Relations took no action, placed the complainants back under the supervision of the harasser, and instructed them not to report any previous sexual harassment by the unit group leader.

4. Mitsubishi Sex Parties

Additional evidence of Mitsubishi's pattern or practice of long-term tolerance of a sexually hostile work environment relates to the organization and presentation of sex parties by managers and other employees and the subsequent circulation within the plant of pornographic color photographs taken at the parties. As described in Mitsubishi personnel documents:

Present at these parties were a multitude of Japanese [Technical Advisers]/[Coordinators], staff employees, supervisory employees and associates. In addition, it should be noted that photographs were taken of the strippers and circulated within the . . . shop. (Group Exhibit No. 68 [.G. Ex. 68"], p. 59.)

Although additional discovery is required as to the full extent of Mitsubishi's managerial and corporate involvement in these events, photographic and documentary evidence already obtained reveals that it was substantial and continued over a period of years. Mitsubishi's own documents show that the sex parties had been going on from 1992 (G. Ex. 68, p. 59) to 1996 (G. Ex. 68, pp. 72, 74) and, although held at local motels, had been organized by Mitsubishi personnel "on company time" and through the use of Mitsubishi facilities:

[Staff Engineer #1] stated that he made the arrangements, collected money at work and attended all the parties. . . [He] admitted that he was given pictures taken at the parties with him in them and he had shown them to other employees while at work.

The last few parties included having three or four women who [Staff Engineer #1] contacted . . . [He] usually called this guy from work and would leave a message on his phone service. This guy would then call . . . back and they would make the arrangement . . . [Staff Engineer #1] also admitted that despite being told [not to do so] he again used the phone several months later to make party arrangements.

. . . The parties always included strippers taking their cloth[e]s off and guys being able to lick whipped creme off their breasts. Later parties included guys taking cherries out of the girls vagina's [sic] with their teeth and it became known the girls were willing to do sexual favors for money. The guy who ran the service and the girls made it known that sex and oral sex was available for more money.

G. Ex. 68, p. 69

Those organizing and attending these parties and knowingly permitting the photographs of sex acts to circulate within the plant were not short-term or "renegade" line employees. They were long term employees and the very managers╬unit group leaders, for example--to whom women suffering sexual harassment within the plant were expected to complain. /31

Unit Group Leader #4 started with Mitsubishi in January 1988 and became a unit group leader in September 1989. G. Ex. 68, p. 34. He stated that "over the last few years he attended 4 or 5 of these stripper parties" and that "he is aware that 2 or 3 sets of pictures of nude women . . were brought into the plant after each party." G. Ex. 68, p. 57. Unit Group Leader #4's description of the parties, and the photographs of his participation (G. Ex. 68, pp. 2-3), are consistent with the others and equally stomach turning:

[Unit Group Leader #4] estimates that he went to five parties and all included a mix of Japanese, Associates and Staff. The parties usually included a buffet dinner, keg of beer and then the dancing girls would come in and strip.

[Unit Group Leader #41 stated the parties were basically the same all the time and for money you could lick whipped creme off of the girls [sic] breast, take cherries out of their vagina or pull off the G-string with their teeth. [He] participated in licking whip creme off a woman's breast and also took a cherry out of one of their vagina's [sic]. [He] said there is one picture he knows of where he is licking whipped creme of[f] a woman's breast and there could possibly be one of him taking a cherry out of the girl's vagina. At one party the girls did a floor show with dildos and vibrators. . .

[Unit Group Leader #4] said he heard about people going in the back room with the girls and paying for sex. . . [He] said he went into the back room once with one of the girls because she had recognized him and was a friend of [his] son's. The reason he went to talk to her was to find out what she was doing and asked her if she was old enough to be doing this type of thing. [He] found out that the girl had just turned 18 years old and had worked and went to school with his sons. [He] said that he did not pay for sex with this girl. (G. Ex. 68, p. 55.)

When asked why he as a manager did nothing to stop the circulation of the photographs inside the plant, Unit Group Leader #4's response revealed his attitude toward women and the impossibility of his responding effectively as a manager to complaints of sexual harassment: .[He] did not think of [the photographs] in terms of being offensive and said he looked at them as the same as guys coming in after a hunting trip and showing pictures of the deer. n G. Ex. 68, p. 56.

The bizarre ritual of circulating the pornographic pictures at Mitsubishi╬knowingly permitted by its managers--included making it impossible for women to avoid either actually seeing them or being made acutely aware that they were being circulated in their presence. Mitsubishi's own documents show that:

On 10-9-95, when [one woman] reported to work and unlocked her desk she found an explicit, inappropriate picture of a nude woman shoved in the top middle drawer of her desk.

G. Ex. 68, p. 45.

The same documents show that the net result of this woman's complaint to ER was that two days later she was herself threatened with termination by Mitsubishi management:

She was informed [managers] would be meeting with members of the department to inform them that all of the joking and inappropriate behavior was to stop immediately. I explained to her that she was an equal partner. . . [She] was informed . . . that if she continued, or if I received a complaint against her, that she would lose her position at Mitsubishi.

G. Ex. 68,p. 47.

Her experience, however, was not unusual. The declarations of other women show the same pattern./32 The deposition testimony of one of them underscores, with painful irony, how the culture of the Mitsubishi sex parties and the pattern and practice of management participation and tolerance infected the complaint process:

Q:I think you testified that you saw the existence of the pictures but not the substance of the pictures. Is that accurate?

A:Yes.

Q:Did you ever complain about those?

A:It would be difficult to complain to the supervisors that queued up in line to see.

Ex. 73

It is not surprising that Employee Relations Department personnel, unit group leaders, and others acted as if participation in the Mitsubishi sex parties and circulation of the 38 photographs inside the plant was consistent with expected norms at Mitsubishi. /33 After all, Coordinator #1, a higher ranking Japanese official (G. Ex. 68, p. 40), also attended "quite a few. of the sex parties (G. Ex. 68, p. 72) and permitted himself to be photographed, repeatedly, sucking a young woman's breast (G. Ex. 68, pp. 4-5.), and Branch Manager #1 --group leaders and unit group leaders were subordinate to branch managers╬stated that "he was aware that pictures of the stripper parties were in the plant and . . . [that] he had seen them . . . [and that] he did not confiscate or tell anyone that having the pictures in the plant was a violation of policy of that it was inappropriate." (G. Ex. 68, p. 75.) Further, Branch Manager #1's acquiescence in these events, his contribution to the pattern and practice, was within the parameters of what he had been told was going on at Mitsubishi╬in particular, according to Mitsubishi documents-- that the sex parties were being set up "at the request of Japanese [Technical Advisers] and Coordinators.. G. Ex. 68, p. 74.

Notwithstanding the open and notorious organization and conduct of the sex parties, and the circulation of the pornographic photographs within the plant, the evidence presently available indicates that Mitsubishi did not react to these practices until February 1996. /34 Even then, Mitsubishi appears to have been more concerned with creating a paper record to blunt the forthcoming EEOC lawsuit than with changing patterns inside the plant.

That paper record is, however, transparent. Initial personnel interviews of almost all of the managers and employees referred to above, and others, occurred on two days, February 28 and 29, 1996. The reports of the February interviews were written-up on March 6 and March 7, 1996. Second interviews were conducted on March 6, 1996. And, the second interviews were written up on March 7, 1996. G. Ex. 68, pp. 44 80.

There things apparently stood until Friday, April 5, 1996 when EEOC issued a press release (G. Ex. 68, pp. 82-83) announcing that the following Tuesday that EEOC Vice Chairman would be in Chicago to announce the filing of "a sexual harassment lawsuit against a major downstate employer. and that EEOC anticipated "that the evidence in the case will show that egregious class-wide sexual harassment has been going on sine-e at least 1990." Mitsubishi management knew the company was the target of the lawsuit. G. Ex. 68, p. 88. So called "last chance agreements" prepared by Mitsubishi to "discipline" the managers directly involved all bear that following Monday's typewritten date (April 8, 1996), and they were all signed on April 10, 1996, the day after EEOC's suit was filed. G. Ex. 68, pp. 4480.

The lock-step coincidence of these events itself suggests that Mitsubishi was not serious about disciplining those involved in utilizing Mitsubishi's facilities to organize the sex parties and in acquiescing in the circulation of the pornographic pictures within the plant. The agreements themselves confirm that suggestion. They recite that the signatory is only placed on probation and may be penalized for future offenses, with no immediate discipline. To the contrary, those who signed "last chance agreements" received "merit" pay increases after their February 1996 interviews, after their March 1996 write-ups and before signing their "last chance agreements." Ex. 68, pp. 2840.

The entire nauseating history of the Mitsubishi sex parties is highly probative evidence of Mitsubishi management's view of women and of its continuous pattern or practice of toleration of a sexually hostile and abusive work environment. The parties and the circulation of the pornographic photographs were not an aberration or merely an after-hours "frolic and detour." They were organized by and for company personnel on company time through the use of company facilities, and the poison they spawned was brought right back on to the plant floor with the knowledge and acquiescence of company managers. Evidence already available demonstrates that this was, at Mitsubishi, "standard operating procedure--the regular rather than the unusual practice." Teamsters v. U.S., 431 U.S. at 336 (1977). It shows that what happened was part and parcel of Mitsubishi's pattern or practice of facilitation of conduct within the plant which amounted to an "open season" on women: As Unit Group Leader #4 stated, it was "the same as guys coming in after a hunting trip and showing pictures of the deer." G. Ex. 68, p. 56.

5. Mitsubishi Response To EEOC Lawsuit

Mitsubishi's contempt for the rights of victims of sexual harassment is perhaps best illustrated by the company's response to EEOC's suit in April 1996. On the day after EEOC filed suit, Mitsubishi sent a letter signed by both its Chairman (Tsuneo Ohinouye) and President (Takahisa Komoto) to employees stating that its response to EEOC's allegations was a "complete and absolute denial" of the Commission's sexual harassment allegations. /35 Ex. 69. A few days later, Gary Schultz, Mitsubishi's General Counsel and Director of Public Relations summoned all of Mitsubishi's employees to a series of plant-wide meetings to rally support for the company, meetings in which he: (i) encouraged employees to use phone banks that had been set up at the plant so that people could call their Congresspersons; (ii) announced that the company was "going to get some buses together" and shut down the plant so that employees could march on EEOC, "parading thousands strong"; (iii) encouraged employees to sign petitions--all the while denying management sponsorship. Ex. 70. As their public relations director put it: "It's that type of action we're looking for and we can't tell you what to do, because if we do then it comes across as so biased that it loses its effect." Id. /36

The response to the letter and the pep-rallies was predictable. Harassment against women who had complained about sex harassment intensified. Women quickly learned of graffiti in one of the men's rooms: "If a fucking cunt causes me to lose my job, I'm going on a cunt hunt." /37 Ex. 13, 41, 58; Mitsu. Ex. 5. Other graffiti appeared, stating, "If I lose my job over some whore, there's going to be hell to pay." Ex. 13. Retaliatory acts against female employees increased and hundreds of women feared being exposed as participants in this suit.

Also circulating around the plant at around this same time was a poster that said: "Sexual harassment would not be reported to the supervisor, but it will be graded on a scale of one to ten.. Ex. 88. Few events could have better symbolized Mitsubishi's attitude, as of April 1996, toward real control of sexual harassment at the plant. .

On April 22, 1996, Mitsubishi orchestrated and paid for a "spontaneous" march on EEOC's offices. The company paid more than $30,000 for buses (Ex. 86), provided each participating employee with a day's pay and free lunch (at a cost of $515,000) (Ex. 87), and shut down the assembly line at a cost which EEOC cannot yet estimate. While doing this it retaliated against employees who chose not to participate by requiring them to report for work or be docked a day's pay and suffer discipline. The obvious intent and effect of the Mitsubishi march was to demand of each employee, in full view of his or her coworkers, "Are you with us or against us?" and to increase hostility against employees (both males and females) asserting Title VII rights. Some women went on the bus because the alternative was to stay in the plant and clean. Ex. 52.

The company's private and public reactions to the lawsuit are merely the latest manifestations of the Company's continuing practice of "resistance to the full enjoyment of any of the rights secured by [Title VII]," including the right to work in an environment that is not hostile to women, the right to work in an environment free from sexual harassment and sexbased harassment, the right to work in an environment that does not seek to punish employees for asserting their rights under Title VII.

D. Mitsubishi's Class-Wide Defenses Are Meritless

In the face of Mitsubishi's record of hostility toward and mistreatment of women, and its toleration and support of a hostile and abusive work environment, Mitsubishi raises two principal defenses: (i) the existence of its ineffective anti-harassment policies and complaint procedures, and (ii) its purported lack of notice. Neither has any merit.

1. Mitsubishi's Lack Of Notice Defense Is Frivolous

As is apparent from its discussions of the experiences of particular victims (Mitsu. Mem., pp. 14-22) and its discussion of its timeliness arguments (Mitsu. Mem, Section II, and Mitsu. Ex. 14), Mitsubishi believes that it should only be held accountable for acts of harassment where women formally complained to ER. This argument is preposterous, contradicted by the relevant legal authority, and contrary to Mitsubishi's own sexual harassment policies.

Many of the victims for whom EEOC is seeking relief in this suit complained to their supervisors--following the very procedures that the company disseminated to its employees through the company's newsletters. See Betts Aff., Ex. F and J. Mitsubishi's own sexual harassment policies not only directed women to complain to supervisors, the polices imposed upon those supervisors the obligation to report all complaints (as well as observed incidents) to Employee Relations. As discussed above. it was proper to complain to group leaders under the "policy" set forth in the newsletter. However, even if the policy did require the employee to go to ER to complain, the group leaders themselves were required, according to the policy, to report to ER misconduct of which they were aware. Under traditional agency principles, notice to an agent with a duty to report to his principal, is notice to the principal. Juarez v. Ameritech Mobile Communications, 957 F 2d 317, 321 (7th Cir. 1992). Mitsubishi's attempt to ignore its own procedures (See Mitsu. Ex. 14) and to deny that complaints to managers gave the company adequate notice is utterly baffling.

As the case law makes clear, even if the particular complainant has never complained, the employer will be liable if it knew or should have known what was going on. Thus, in Janson, all of the judges participating in the decision except one agreed that the plaintiff could withstand summary judgment on her hostile environment claim even though she had failed for eighteen months to complain to her supervisor or though other channels of the harassment.

An employer will be liable for sex harassment despite the victim's failure to complain where the employer knows of the pervasive atmosphere through some other source. See, EEOC v. Mitsubishi, 102 F.3d 869, 870 (7th Cir. 1996): "Although an employer often is not liable for sexual harassment unless the affected employee has complained, See Zimmerman v. Cook County Sheriff's department, 96 F.3d 1017 (7th Cir. 1996), we have suggested that protest is unnecessary if the employer knows the harassment is pervasive, id, at 1018-19, a condition EEOC believes exists at Mitsubishi's plant."

An employer may be liable for harassment in the absence of a complaint when the employee knows that a complaint is useless, a factor overwhelmingly present here. Cf, Brooms v. Regal Tube Co, 8812 F.2d at 421, n.5.

2. Mitsubishi Cannot Hide Behind Its Paper Policies

Mitsubishi also argues that the company's sexual harassment policy and complaint procedures should somehow shield it from exposure to a "pattern or practice" suit. However, corporate action which is so totally ineffective that EEOC has been able to identify more than 300 victims of harassment by more than 400 different men is perhaps the best evidence of the company's toleration of the hostile working environment. /38 See, Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1112 (7th Cir. 1994)("It is difficult for an employer to sort out charges and countercharges of sexual harassment among feuding employees, but we are dealing here with a situation in which for years one of the nation's largest enterprises found itself helpless to respond effectively to an egregious campaign of sexual harassment directed at one woman. No reasonable person could imagine that General Motors was genuinely helpless, that it did all it could reasonably have done.").

* * *

The evidence available already demonstrates convincingly an overwhelming pattern or practice of toleration of a work environment that was extremely hostile to women. As in Jenson, 824 F.Supp at 886, at Mitsubishi "women are presented with constant and pervasive references to women, perhaps even themselves, as sexual objects and are subjected to acts in which their sexuality and sex role is elevated over their status as an employee╬that is, they are subjected to pervasive sexual harassment on account of their sex." The evidence will further show that Mitsubishi's response was "at most situation specific: [Mitsubishi] responded only to complaints about specific incidents of sexual harassment. Id. at 887 Indeed, the evidence already demonstrates a pattern or practice far more egregious than that which "existed at the Eveleth Mine.

II. EEOC MAY SEEK RELIEF FOR ALL VICTIMS

Mitsubishi contends that EEOC is barred from seeking relief for individuals subjected to discriminatory conduct prior to June 23, 1993--300 days before April 19, 1994, when EEOC filed its Commissioner's Charge. Specifically, Defendant argues that no relief should be provided to any individual for injury caused by its hostile work environment prior to June 23, 1993 because those claims are "untimely."

Mitsubishi's argument misapprehends the nature of this case. As discussed above, EEOC will prove an open and notorious policy of sexual harassment, based on overwhelming unwelcome verbal and physical conduct of a sexual nature, and of sex-based harassment, caused in large part by Mitsubishi's failure to respond to or take any action to prevent such conduct. This pattern and practice was the continuous standard operating procedure at Mitsubishi from the plant opening in 1988 until after this lawsuit was filed in April, 1996.

As in its argument with respect to EEOC's pattern and practice claims, Mitsubishi attempts to dissect the hostile work environment claim into compartmentalized "incidents" of harassment for each of the identified 300 plus victims. It is, however, the ongoing pattern and practice of discrimination, as well as each of its particular manifestations, that is the subject of challenge in this litigation. Defendant's timeliness arguments must fail because: (1) EEOC has authority to seek relief for aggrieved individuals irrespective of the 300 day limitations period, and (2) EEOC can proceed with claims beyond the 300 day period because Mitsubishi's conduct constitutes a continuing violation. In the alternative, the charges of Terry Paz, Lena Rector, and Brenda Schillaci, would, in any event, extend the so-called "limitations period" to January 18, 1992; September 22, 1992; and January 20, 1993 respectively. /39

A. Aggrieved Individuals Beyond 300 Days

Mitsubishi urges this Court to limit the scope of the Commission's ability to seek relief for the 300 victims to those who would have individual "in a vacuum" standing to bring suit on their own. This position is in contravention to Supreme Court and Seventh Circuit authority.

The Supreme Court, in General Telephone Company of the Northwest v. EEOC, 446 U.S. 318, 331 (1980), made it clear that the Commission's authority to seek relief for a class of individuals is inherent in its role as the agency designated by Congress to enforce Title VII. Limiting EEOC's ability to seek relief for only those persons with independent standing would contravene the role of EEOC in the enforcement of Title VII. Id. at 331. The Seventh Circuit, in permitting the Commission to seek relief for individuals harmed prior to the charge-filing period, expressly recognized that the Commission has broader standing than a private class representative. See EEOC v. Gurnee Inn Corp., 914 F.2d 815, 819 n. 6 (7th Cir. 1990).

In Gurnee Inn the defendant argued that EEOC could not obtain back pay for persons who were terminated more than two years prior to the date on which the charge was filed. /40 The Court squarely rejected that argument, and had, citing Stewart v CPC International. Inc., 679 F.2d 117, 121 (7th Cir. 1982), that EEOC could obtain relief for individuals who were terminated by the defendant more than two years before the filing of the charge. Id at 819. See also EEOC v. Newspapers. Inc., 39 Fair Empl. Prac. Cas. (BNA) 891, 892 (E.D. Wis. 1985)(Ex. 89). As the Seventh Circuit stated in Gurnee Inn, "a suit brought by the EEOC is not limited to discriminations that [an individual] had standing to raise." Gurnee Inn, 914 F.2d at 819 n. 6 (citations omitted).

Defendant's cite to EEOC v. Elrod, 47 FEP Cases 1651 (N.D. III. 1986), aff'd sub nom in part on other grounds, rev'd sub nom in part on other grounds, 857 F.2d 383 (7th Cir. 1988), is inapposite to the issues before this Court. Elrod was brought under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (the "ADEA") which, unlike Title VII, then contained a statute of limitations of two or three years (depending on whether the violation was willful). 29 U.S.C. § 626(e)(1) (incorporating 29 U.S.C. § 255). Unlike cases brought under Title VII, EEOC, in actions it brings under the ADEA, "is bound by the statute of limitations for the employees on whose behalf it sues." Id at 1655. Accordingly, the Elrod holding has no bearing on this case.

Therefore, EEOC has authority to pursue claims on behalf of all aggrieved individuals in this pattern and practice litigation irrespective of the period of harm suffered by the individuals.

B. Mitsubishi's Continuing Violation

The crux of EEOC's claim is that Mitsubishi created a hostile work environment by engaging in a pattern and practice of sex-based discrimination which poisoned the atmosphere of employment and subjected female workers to an offensive and hyper-sexualized environment. Thus, Mitsubishi is simply wrong when it asserts that "EEOC-does not allege that Mitsubishi's anti-harassment policies themselves violated Title VII." Mitsu. Mem. p. 26, n. 43. These polices and the resulting hostile environment constitute the pattern and practice of discrimination alleged in this suit.

The leading Seventh Circuit case discussing continuing violations is Stewart v. CPC International. Inc., supra. In that decision, the Court sets forth three types of continuing violations. It is the second which is applicable here: "in which the employer's express, openly espoused policy [is] alleged to be discriminatory." 679 F.2d at 121. When an employer engages in such a pattern and practice (which need not, of course, be in writing or admitted by the Defendant) all victims of a discriminatory policy while the policy was in effect, regardless of whether those persons did or could have filed a timely charge of discrimination, are entitled to relief. EEOC v. Gurnee Inn Corp., 914 F.2d 815, 819 and n. 6 (7th Cir. 1990). See also EEOC v. Chicago Miniature, 640 F. Supp. 1291 (N.D. Ill. 1986) (In pattern and practice race recruitment and hiring case based on 1978 charge, court permitted Commission to include victims from March 1970.), rev'd on other grounds, 947 F.2d 292 (7th Cir. 1991); EEOC v. O & G Spring & Wire, 38 F.3d 872, 880 (7th Cir. 1994), cert. denied, 513 U.S. 1198 (1995) (ln pattern and practice race recruitment and hiring case based on 1984 charge, court awarded relief, backpay and eligibility for reinstatement, to applicants from 1979).

The purpose of the continuing violation doctrine was articulated in EEOC v. City of Chicago, 51 Fair Empl. Prac. Cas. (BNA) 503, 1989 WL 134788 (N.D. III. 1989)(attached as Ex. 74):

[W]here as here, a plaintiff attacks a rule or policy that continued to exist right up into the limitations period, concerns about prejudice to the defendant are absent or diminished . . . the continued nature of the policy represents its affirmative perpetuation . . . and is susceptible to characterization as a conscious waiver of limitations period protection .... Simply put, an employer that maintains a continuing violation neither deserves nor obtains repose. EEOC v. City of Chicago, Ex. 74, p. 9, citing EEOC v. Home Ins. Co., 553 F. Supp. 704, 713 (S.D. N.Y. 1982).

1. A Pattern or Practice Violation Is A Continuing Violation

A sexual harassment pattern and practice case, such as this one, is by its nature a continuing violation. Therefore, Mitsubishi's arguments with respect to "serial" continuing violations miss the point. Defendant cites Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983), Mitsu. Mem. at p. 30, an individual Equal Pay Act case which set forth factors to consider in such serial violations. Mitsubishi fails to note, however, the Fifth Circuits's later discussion of those factors in the context of a hostile environment sexual harassment claim:

It is noteworthy that since this court's decision in Berry. the Supreme Court decided Meritor Savings Bank, which established that a plaintiff can bring a claim for sexual harassment based on acts that created a "hostile environment." The Meritor Savings Bank decision is relevant to the continuing violation theory because a hostile environment claim usually involves a continuing violation.... [I]n light of Meritor Savings Bank, the court should review the pattern and frequency of the harassment and determine whether a reasonable person would feel that the environment was hostile throughout the period that formed the basis of the plaintiff's claim. (Emphasis supplied.)

Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir. 1989). /41

Indeed, the cases which have found pattern and practice sexual harassment have assumed or expressly decided that the hostile environment constituted a continuing violation. In Jenson v. Eleveth Taconite Company, 824 F. Supp 847, 877 (D. Minn. 1993), the court held:

In the arena of sexual harassment, particularly that which is based on the existence of a hostile environment, it is reasonable to expect that violations are continuing in nature: a hostile environment results from am of sexual harassment which are pervasive and continue over time, whereas isolated or single incidents of harassment are insufficient to constitute a hostile environment. /42

The court concluded that if plaintiffs established that defendant maintained a companywide pattern or practice of sexual harassment both before and after December 30, 1983 (limitation period), the defendant would be liable for acts of sexual harassment reaching back to the commencement of that policy, which plaintiffs alleged to be 1975. In EEOC v. Blue Ox Restaurant, supra, Ex. 4, the court defined the class to include all victims of sexual harassment since December 5, 1979 (Ex. 4, at 43,367) (the date on which the harassers began operating the restaurant), although the charges had been filed on February 12, 1981. Ex. 4, at 43,350. These cases are, of course, consistent with the Seventh Circuit's decision in EEOC v. Gurnee Inns Corp., supra, discussed above.

Defendant ignores these cases involving multiple claims of sexual harassment, and instead focuses on cases discussing whether discrete acts against a single individual constitute a continuing violation. In .Doe v. R. R. Donnelley & Sons Co., 42 F.3d 439, 446-47 (7th Cir. 1994), a private plaintiff attempted to link remote incidents to establish a hostile environment claim. The court found that the plaintiff had not established actionable sexual harassment within 300 days of her charge of discrimination. Similarly, in Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 707-08 (7th Cir. 1995), the private plaintiff failed to establish a "present" violation within 300 days of her Charge of Discrimination. /43

Proof of a pattern and practice hostile environment sexual harassment claim is proof of a continuing violation, which entitles all victims of the pattern and practice during the time period of its existence to relief." Mitsubishi virtually admits as much in its argument:

The EEOC cannot rely on an asserted "pattern and practice" theory to support application of the "systemic" continuing violation theory. To the extent that EEOC alleges a standard operating procedure by Mitsubishi to unduly delay its response to sexual harassment complaints and then to purposefully respond in a manner not calculated to prevent further harassment, the record herein absolutely refutes the allegation.

Mitsu. Mem. p 29, n. 49. EEOC, of course, alleges precisely such a "standard operating procedure" on the part of Mitsubishi. The record amply proves the allegation; the "systemic" continuing violation theory set forth in Stewart, supra, is therefore applicable.

C. 300 Days Prior To The Earliest Charge of Discrimination

As shown above, no 300 day "limitations" period applies to this litigation. Nevertheless, EEOC alternatively argues that even if a 300 day limitations period applied, "timeliness" should be measured from the earliest charge alleging the pattern and practice of discrimination on which this case was found.

EEOC's proposed First Amended Complaint states, "Charges were filed by Brenda Schillaci and by Lena Rector with the Commission alleging violations of Title VII by Defendant." First Amended Complaint, Para.6. /45 The Amended Complaint further states, "On December 1, 1992 /46, Terry Paz filed a Charge with the Commission alleging violations of Title VII by Defendant. On December 12, 1996, the Commission intervened in the case in Evans. Paz. et al. v. Mitsubishi Motor Manufacturing of America. Inc.. f/k/a Diamond-Star Motors Corporation.. C.D. III., Number 94-1545." Each of these allegations would independently provide the jurisdictional basis for the filing of this lawsuit. If the 300 day limitation period applied, it should be measured from the earliest of the three charges, that is from November 13, 1992. Each was timely filed with EEOC, and each alleges a pattern and practice of sexual harassment. See, 42 U.S.C. § 2000e-5.

The Seventh Circuit has recently discussed the question of when a charge can serve as the jurisdictional basis for a lawsuit by EEOC. EEOC v. Harvey L. Walner & Associates, 91 F.3d 963 (7th Cir. 1996). In Walner, jurisdiction was asserted by EEOC based on a timely charge of discrimination in which EEOC had not, however, found reasonable cause to believe that the Charging Party (Shepard) had been subjected to the alleged sexual harassment. Although EEOC alleged that a pattern and practice of hostile environment sexual harassment had continued into the 300 days prior to the filing of the Shepard charge, the only charges filed during that period had been withdrawn, with EEOC's consent, prior to the filing of EEOC's suit In holding that the Shepard charge, with its absence of a finding of violation against Shepard, was not sufficient to serve as the jurisdictional basis for the lawsuit, the Court began by noting that such analysis would not have been necessary had EEOC alleged a continuing violation. It could not do so because: "A continuing violation theory requires at least one viable charge within the appropriate limitation period." 91 F.3d at 969. Because there was no continuing violation, and because the only charges were either not determined or had been withdrawn, EEOC could not proceed. The Court relied on the fact that EEOC had not been required to allow the Charging Parties to withdraw their claims; EEOC could have, despite the individual settlements, continued its investigation of the charges and, if cause were found, used them as the basis for the lawsuit.

In this case, the Paz charge, the Rector charge, and the Schillaci charge--none of which have been withdrawn--each provide an independent jurisdictional basis for this lawsuit. Although Ms. Paz did request a notice of right to sue and did file her own lawsuit, EEOC did not close the charge, but continued its investigation. EEOC's intervention in the Paz lawsuit is functionally equivalent to having found cause on Paz' charge. /47 The fact that Paz would not, herself, be entitled to relief in this lawsuit because of her settlement of her claims in the Evans lawsuit is irrelevant. See, Harris v. Amoco Prod. Co., 768 F.2d 669, 682 (5th Cir. 1985)(settlement of private Title VII action does not moot EEOC's right of intervention because EEOC "exists to represent the public interest in equal employment opportunity"); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010-11 (6th Cir. 1975)(EEOC suit to eradicate unlawful employment practices not precluded by charging party's settlement).

In addition to the Paz charge, the Shillaci and Rector charges provide distinct jurisdictional bases for this lawsuit. Brenda Schillaci filed a charge of discrimination which contained class-wide allegations of sexual harassment on July 19, 1993. Ex. 75. Lena Rector filed class-wide allegations of sex harassment on November 16, 1993. Ex. 76. EEOC would clearly have the right to bring a new action based on the charges of Schillaci and Rector, and to seek relief on behalf of all women who suffered discrimination within 300 days prior to those charges. Walner, supra.

Mitsubishi admits that the Paz charge was the beginning of EEOC's investigation in making its laches argument. /48 However, with respect to the 300 day limitations period, Defendant argues that the Terry Paz charge is inappropriate. It cannot have it both ways. Paz's charge clearly put Defendant on notice that the sexual harassment claims encompassed a pattern of unlawful conduct that transcended an isolated individual claim and that Defendant should act accordingly. Therefore, if the 300 day limitations period were to apply in this litigation, "timeliness" should be measured from the earliest charge, that of Terry Paz. Based on the Paz charge, the limitations period, if applicable at all, would be extended to January 17, 1992.

III. LACHES IS NO DEFENSE

Mitsubishi's laches argument again demonstrates its refusal to acknowledge that this is a pattern or practice case and attempts to deflect responsibility for investigating and/or remedying sexual harassment away from itself and onto EEOC. The gist of Mitsubishi's argument is that, because EEOC did not immediately inform Mitsubishi of every incident of sexual harassment of which EEOC became aware, Mitsubishi should not be held liable for the pervasive sexual harassment that permeated the plant. Although this argument is couched in an effort to show EEOC delay, and resulting "prejudice" by the alleged delay, a review of the nine pages of laches argument shows that Mitsubishi simply seeks to blame EEOC for its own failure to investigate or remedy the ongoing sexual harassment. As expected, Mitsubishi's laches defense fails to cite a case supporting the proposition that EEOC has a duty to contemporaneously report incidents of sexual harassment of which it becomes aware. Nor does it cite a single case holding that failure to adhere to such a reporting requirement absolves a company of liability for sexual harassment.

Beginning in November of 1992, if not sooner, Mitsubishi became aware of class allegations of sexual harassment in its Normal plant. Mitsu. Stmt. Facts, Para. 31. Mitsubishi could have, as EEOC did, chosen to investigate these charges. /49 Indeed, Mitsubishi was certainly better situated to conduct such investigations. Its failure to do so is not, and cannot be, grounds to limit its own liability, nor can this failure be attributed to EEOC.

In order to prevail on its laches claim, /50 Mitsubishi must prove: (i) that EEOC both unreasonably and inexcusably delayed in filing this lawsuit; and (ii) that EEOC's delay caused substantial prejudice to the Defendant. Leonard v. United Airlines. Inc., 972 F.2d 155, 158 (7th Cir. 1992); Martin v. Consultants & Adm'rs. Inc., 966 F.2d 1078, 1091 (7th Cir. l992). Mitsubishi is unable to prove either, and, therefore, its motion for partial summary judgment as to some or all of the individual's claims must be denied. /51'

As noted above, Mitsubishi seeks to use the November 1992 date of the Terry Paz charge in its laches argument and use the later April 1994 date of the Commissioner's Charge in its 300 days statute of limitations argument. See Mitsu. Mem. at 22, 33. EEOC accepts as the proper date in both arguments the November 13, 1992 date of Terry Paz's charge, when EEOC's investigation of sexual harassment charges at Mitsubishi commenced. See Declaration of EEOC Enforcement Supervisor Scott Sommers, Ex. 90. The time elapsed between the Commissioner's charge and the filing of suit is just under two years. Mitsu. Stmt. Facts, Paras. 36, 52.

EEOC does not, however, accept Mitsubishi's complaints about EEOC's investigation of the Paz charge and the number of interviews conducted before the Commissioner's charge was filed. In EEOC v. Great Atl. & Pac. Co., supra, the court held that a delay between a filing of an individual charge and a Commissioner's charge should not be ascribed to EEOC in determining the applicability of a laches defense. 735 F.2d at 82. Specifically, the court held that "[d]elay in processing an individual charge cannot relieve [defendant] of the obligation of defending a much broader action on behalf of classes of employees.. Id at 82; see also EEOC v. Jacksonville Shipyards, 690 F. Supp. 995, 999 (M.D. Fla. 1988) (in laches analysis court "looks to the more recent charge as the key date"). Moreover, courts recognize that investigations into individual charges may uncover facts giving rise to broader proceedings by EEOC. EEOC v. Chicago Miniature Lamp Works, supra, 640 F. Supp. at 1297.

A. No Unreasonable or Inexcusable Delay

Mitsubishi asserts that the three years and five months between the date of the first charge received by EEOC and the filing of suit is an unreasonable or inexcusable delay. For the purposes of laches, however, delays of four, five, and even six years have been found to be not unreasonable. See e.g., EEOC v. Warshawsky and Co., 768 F. Supp. 647, 657 (N.D. Ill. 1991) (delay of four years and two months not unreasonable); Makhija v. Deleuw, Cather & Co., 666 F. Supp. 1158, 1172-73 (N.D. III. 1987) (delay of nearly six and one-half years not unreasonable); EEOC v. Jacksonville Shipyards Inc., 690 F. Supp. 995, 1000 (M.D. Fla. 1988) (delay of five years and ten months not unreasonable). Moreover, because pattern and practice charges require more time and resources than comparable individual claims, the reasonableness of the three and one-half years delay between charge and filing is even more evident. See e.g., EEOC v. American National Bank, 574 F.-2d 1173 (4th Cir. 1978) (laches not a bar to a pattern and practice suit even though almost seven years elapsed between charge and filing of suit).

EEOC diligently pursued its investigation of class-wide charges of sexual harassment at the Mitsubishi plant. From the date of the first charge in November of 1992, EEOC conducted appropriate administrative investigations into the pattern and practice allegations, which included more than 150 interviews of current and former male and female associates of Mitsubishi, Union representatives, Human Resources personnel, and other persons with knowledge about facts relevant to charges; touring the plant; and extensive document review. Ex. 90. As a result of these investigations, EEOC issued a reasonable cause determination on August 9, 1995. Mitsu. Ex. 19. At all times Mitsubishi was well aware of the fact that it was being investigated for sexual harassment violations. See EEOC Enforc. Prov., § 2000c-5(b) (requiring EEOC to provide prompt notice of discrimination charges to respondents); Mitsu. Stmt. Facts Para. 56.

In Jacksonville Shipyards, supra, the court held that the almost six years delay was not unreasonable and noted that the "EEOC [had] exhibited a continuing interest in the pursuit of the discrimination charges and [that] this interest was repeatedly communicated to defendant." 690 F. Supp. at 1000. Similarly, EEOC has shown continued interest in prosecuting sexual harassment charges against Mitsubishi and has communicated such to Mitsubishi, and, therefore, a delay of three and one-half years is clearly reasonable.

B. No Material Prejudice

Even if Mitsubishi were able to show EEOC unreasonably delayed the filing of this suit, it cannot show any prejudice resulting from delay. Mitsubishi's alleged "prejudice" is that

(1) memories have faded; (2) some harassers and/or witnesses are no longer employed with 60 company; (3) two ER employees are no longer employed by company; and (4) "Mitsubishi never received notice from EEOC . . . of the specific incidents of harassment . . . " . Mitsubishi. at 39. None of these complaints raised by Mitsubishi results in prejudice of the sort which supports the application of laches.

1. Faded Memory/Lack of Availability Not Prejudice

In Jacksonville Shipyards, supra, the defendant contended that it had been materially prejudiced from EEOC's six year delay in filing suit because during that period, records were lost or destroyed and witness' memories had dimmed. The court rejected this argument. In finding that the defendant suffered no prejudice, the court noted that EEOC had promptly informed the defendant of the pending charges of discrimination. The court stated that in those cases where prejudice had been found, there had been significant delays between the filing of the charge and notice of the charge to the defendant. The court found this distinction to be dispositive, and stated that "[prompt] notice [alerts a] defendant to the possibility of an enforcement action and [gives] it an opportunity to gather and preserve evidence in anticipation of court action." 690 F. Supp. at 1000 (citation omitted). Accordingly, the court found that the defendant "could have maintained its records and taken testimony of key employees in anticipation of the ensuing litigation." 690 F. Supp. at 1000-01 (citation omitted).

Just as in Jacksonville Shipyards, defendant in this case was given prompt notice of the 29 individual charges claiming sexual harassment in late 1992 and early 1993, as well as the Commissioner's Charge of pattern and practice of sexual harassment in 1994. EEOC Enforc. Prov. § 2000e-5(b). Defendant could have, at any time, taken steps to preserve evidence and testimony in anticipation of litigation. Presumably, a sophisticated and large company such as Mitsubishi would have taken such steps. Accordingly, any purported prejudice it now claims to suffer can only be attributed to its own lack of diligence in preserving evidence and testimony.

2. Mitsubishi Was On Notice

Mitsubishi claims EEOC did not provide sufficient notice of the claims against it and therefore, Mitsubishi has been materially prejudiced. Incredibly, Mitsubishi states, "[a] company cannot remedy hostile environment harassment about which it is unaware." Mitsu. Mem. at 39. Apparently, Mitsubishi does not consider more than 30 separate charges of sexual harassment, a Commissioner's charge alleging a pattern and practice of sexual harassment, and a law suit with 29 plaintiffs alleging sexual harassment, sufficient notice that the plant has a problem with sexual harassment. As such, it is highly unlikely that prompt reporting of every incident of sexual harassment that EEOC became aware of would have been any more effective in providing notice of claims of sexual harassment in the plant. Moreover, Mitsubishi took the depositions of the 29 Evans plaintiffs; received interrogatory responses from EEOC listing hundreds of specific incidents of sexual harassment; and has received substantial numbers of complaints of sexual harassment to its supervisors and Employee Relations department. Mitsu. Stmt. Facts 153, Mitsu. Mem. at 27 n.45, 46. Given the company's lack of diligence in pursuing the specific claims it was incontrovertibly aware of, it can hardly claim it was prejudiced by EEOC. Mitsubishi has not, as it claims, been prejudiced by a lack of notice of sexual harassment. Rather, Mitsubishi has sought to bury its head in the sand when it came to sexual harassment claims and then scream lack of notice despite overwhelming evidence to the contrary.

For the foregoing reasons, any relief requested based on a laches defense must be denied. /52

IV. EEOC SATISFIED ITS STATUTORY DUTY TO CONCILIATE

Mitsubishi argues that EEOC did not adequately comply with its statutory conciliation obligations, and therefore this case should be stayed pending a new conciliation effort. /53 Section 706(b) of Title VII requires EEOC, before instituting a lawsuit, to "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. 2000e-5(b). EEOC has met its statutory burden of conciliation in this case as a matter of law.

A. EEOC Made A Good Faith Attempt To Conciliate

EEOC is, of course, not required to settle discrimination claims on terms satisfactory to employers, but need only "attempt to conciliate" charges as to which reasonable cause has been found. Accordingly, the form and substance of the conciliation process is within the discretion of EEOC as the agency created to administer and enforce the employment discrimination laws. /54 EEOC v. Keco Ind . Inc., 748 F.2d 1097, 1102 (6th Cir. 1984). The Court should not examine the substance of the conciliation process. Sears, Roebuck & Co., 504 F. Supp. at 262; EEOC v. Acorn Niles Corp., 1995 WL 519976, p. 6 (N.D.III.); See also EEOC v. Hickey-Mitchell Co., 507 F.2d 946, 948 (8th Cir. 1974) (finding that 706(b) requires "no more than a good faith attempt at conciliation").

Hence, there can be no dispute that EEOC met its burden to attempt to conciliate. EEOC sent Mitsubishi a determination letter dated August 9, 1995, citing the Title VII violations found to exist at the plant and inviting Mitsubishi to join in conciliation efforts. It requested Mitsubishi to provide EEOC with a list of conciliation terms within 14 days. The determination letter also described the types of relief EEOC seeks for Title VII violations. Mitsu. Ex. 19.

Mitsubishi's response, dated August 16, 1995, requested EEOC provide it with a list of demands for conciliation. Mitsu. Ex. 23. EEOC responded promptly with a letter setting out provisions that would be central to an acceptable conciliation agreement. Mitsu. Ex. 24. This letter was certainly sufficient to fulfill EEOC's obligation to "inform the defendant of the remedies sought.. EEOC v. Prudential Fed Sav. & Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985). In light of this correspondence which addressed remedial measures, Mitsubishi has no basis for its allegation that EEOC failed to inform them of its settlement terms.

B. Mitsubishi Rejected EEOC's Effort To Conciliate

It is well established that the duty to conciliate is discharged once a good faith effort is met with an employer's total denial of discrimination and an unwillingness to compromise. Marshall v. Sun Oil Co. (Delaware), 605 F.2d 1331, 1337 (5th Cir. 1979) ("In light of Sun's generalized denials [of discrimination] and its unwillingness to-engage in a meaningful colloquy on the Secretary's allegations, the Secretary satisfied his statutory duty of attempting conciliation; [t]hrough Sun's intransigence, the conciliation process reached an impasse"). EEOC's August 17, 1994 letter clearly reflected EEOC's valid offer of voluntary compliance; Mitsubishi rejected the offer by failing to respond in a reasonable manner that would allow further negotiation. Such rejection can be found in Mitsubishi's letter to EEOC dated September 1, 1995. Mitsu. Ex. 26.

In that letter, each settlement term proposed by EEOC is declared unnecessary by Mitsubishi. Using unambiguous language, Mitsubishi states that it is not willing to change any of its policies, practices or procedures unless EEOC demonstrates to its satisfaction that it is necessary. Mitsu. Ex. 26. Yet EEOC is under no obligation to convince an intransigent defendant of its Title VII violation if the basis of EEOC's claims are facially adequate. See Prudential, at 1169.

As for monetary relief, Mitsubishi offers nothing. Instead, it takes the position that there are no victims to be compensated /55 and that the EEOC should not be allowed to look for any victims. Mitsu. Ex. 26. Denying the need for any injunctive relief, denying that any victims exist and offering no monetary relief cannot be seen as a reasonable stance for a company who has already had at least 30 charges of class-based sexual harassment filed against it. Mitsubishi rejected the Commission's attempt to conciliate this case and offered no counter remedies to the discrimination found at its plant. Once an employer rejects EEOC's offer, it is under no obligation to attempt further conciliation. Keco, 748 F.2d 1097, 1101-2; EEOC v. Acorn Niles Corp., 1995 WL 519976, p. 6 (N.D. III. 1995).

In its memorandum, Mitsubishi attempts to spin a tale of a company who was anxious to settle this case, but thwarted by EEOC's bad faith attempt at conciliation. The record reveals otherwise. EEOC's attempt to conciliate this case was soundly rejected by Mitsubishi. This rejection discharged the Commission of its statutory duty to conciliate and cleared the way for suit.

V. RELIEF FOR VICTIMS JOINTLY EMPLOYED AT MITSUBISHI

Mitsubishi's final argument is that EEOC improperly claims relief for 30 individuals who sought or obtained relief in private lawsuits, and for six women who were not employees of Mitsubishi.

Of course, EEOC does not seek relief in this case for any women who are plaintiffs in Evans v. Mitsubishi, or who have obtained relief through private litigation. EEOC v. Harris v. Chernin. Inc., 10 F.3d 1286, 1292-93 (7th Cir. 1993). EEOC has intervened in the Evans lawsuit. The 29 Evans plaintiffs, and the one additional plaintiff who has resolved her claim privately, are identified on a list of 289 victims and/or witnesses of sexual harassment, and are properly so included, as they may be called as witnesses to establish the pattern or practice of discrimination.

EEOC does, however, seek relief for victims of sexual harassment who were jointly employed by Mitsubishi and its vendors or contractors. For example, Victim #290 was employed by a contractor, Premier, a cleaning service retained to perform cleaning assignments inside the Mitsubishi plant. Ex. 5. Victim #37 was employed by St. Joseph, OSF, and worked in Mitsubishi's Employee Relations Department processing workers compensation claims. Ex. 8.

Whether Mitsubishi exercises sufficient control over employees of contractors and vendors such as Premier and St. Joseph OSF, is a factual determination requiring consideration of such factors as authority to hire, fire and discipline employees, promulgation of work rules and conditions of employment, issuance of work assignments and instructions, and supervision of employees' activities. See Rivas v. Federacion De Associones Pecuarias, 929 F.2d 814, 820-821 (1st Cir. 1991); DeMucci Construction Co. V. NLRB, 24 F.3d 949, 952-953 (7th Cir. 1994). Here, the only facts yet in the record are that six victims named by Mitsubishi are apparently not on Mitsubishi's direct payroll, that the Premier employees' duties included photographing graffiti in a men's restroom, and that the St. Joseph, OSF employee performed her duties in Mitsubishi's ER department. These facts are not sufficient, without more discovery, for summary judgment.

CONCLUSION

The evidence discussed above (and the exhibits submitted in support of this Memorandum) demonstrate that it is no exaggeration to say that Mitsubishi was infected with the poison of discrimination and operated in unprecedented and flagrant violation of federal law. it shows that, in fact, Mitsubishi engaged in a pattern or practice of employment discrimination. That discrimination took the form of knowingly or negligently permitting and maintaining a hostile and abusive work environment in which sexual harassment of women and harassment of women because of their sex was continuous and pervasive.

It is remarkable that there is already so much evidence of so much reprehensible and illegal conduct this early in the litigation. High level Mitsubishi officials, Employee Relations personnel, and plant floor management have not yet been deposed, but their active participation in the pattern of illegal conduct is already irrevocably apparent through documents, photographs, and statements. Upon this existing factual record there can be no finding in favor of Mitsubishi as to any factual issues--particularly not as to any factual issue upon which its motion is wrongly predicated.

The same is true with respect to all of the legal issues. It is worth saying again: Neither Title VII nor federal case law explicitly or implicitly exempt Mitsubishi or any other employer from answering for patterns or practices of discrimination involving sexual or sex-based harassment. The law does not support Mitsubishi's notion that this Court must treat this case as an aggregation of individual claims about some line employees engaging in disjointed incidents of sexual harassment. As the available evidence already shows, that is not, after all, what this case is about. What it is about is Mitsubishi's corporate engagement in and responsibility for a pattern and practice of egregious discrimination. Title VII, as a matter of law, contemplates the imposition of liability for precisely such discrimination. Mitsubishi is not entitled to a "pass." Its motion for Partial Summary Judgment must be denied.

Dated: September 15,1997

Respectfully Submitted,

John C. Hendrickson
Regional Attorney

Jean P. Kamp
Supervisory Trial Attorney

Steven Levine
Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
CHICAGO DISTRICT OFFICE
500 West Madison Street
Suite 2800
Chicago, Illinois 60661
(312) 353-7649

[Endnotes]

/1 Mitsubishi filed, in addition to its 54 page Memorandum, a 74 page "Statement of Theory of the Case." That statement does not purport to be-submitted in support of Mitsubishi's motion. It, therefore, requires no separate response from EEOC and warrants no attention from the Court. EEOC's "theory of the case" is evident in this Memorandum.

/2 Personnel functions at the plant are handled by a Human Relations Department, divided into several sections, one of which is Employee Relations ("ER"). Among other things, ER is supposed to investigate and act on reports of sexual harassment received from associates or from floor managers. How ER has failed to handle this responsibility is one of the central themes in this case.

/3 EEOC has requested the disciplinary files of more than 450 alleged harassers at the plant whom it has identified through a variety of sources. See Ex. 78. EEOC had previously requested through formal discovery all disciplinary files relating to all complaints (whether oral or written, formal or informal) of sexual harassment, sex-based harassment end/or retaliation from January 1, 1987 to the present. See Ex. 79. In response to this request, Mitsubishi produced the disciplinary files of fewer than 100 alleged harassers and represented to the EEOC that this constituted all disciplinary files of harassers that pertained to alleged incidents of reported sexual harassment for the period from September 7, 1988 to April 12, 1996. Ex. 8. Mitsubishi has subsequently agreed to produce the disciplinary files of the hundreds of other alleged harassers identified by EEOC.

EEOC believes it likely that these files were not previously produced for the simple reason that most of them do not contain any documentation of any investigation or discipline relating to complaints of harassment.

/4 Indeed, the Court's September 30, 1997 Scheduling Order contemplated that Mitsubishi's motion would address the following "threshold" dispositive issues: jurisdiction, timdiness, and failure to state a claim.

/5 Of course, Mitsubishi's arguments concerning the consequences that should flow from a "pattern or practice" finding puts the cart before the horse. The narrow issue that is properly before the Court is whether EEOC may bring a "pattern or practice" claim in sexual harassment cases. Nonetheless, EEOC addresses herein the consequences that should flow from a "pattern or practice" finding in the sexual harassment context.

/6 While a ruling on a motion for class certification raises issues similar to those argued here, the issues are not the same. EEOC is not required to meet the requirements of Rule 23, and this is not a Rule 23 case. General Telephone v. EEOC, 446 U.S. 318 (1980), cert. denied, 451 U.S. 914 (1981). Therefore, the cases cited by Mitsubishi, Patterson v. General Motors Corp., 631 F.2d 476 (7th Cir. 1980); Liberty Lincoln Mercury v. Ford Marketing Corp., 149 F.R.D. 65 (D.N.J. 1993) and UAW v. LTV Aerospace & Defense Co 55 FEP Cases (BNA) 1078 (N.D. Tex. 1991), which deal with the commonality requirement under Rule 23, are not helpful.

/7 Notably, other courts have permitted class actions to proceed in the sexual harassment context. See e.g., Bremiller v. Cleveland Psychiatric Institute, 898 F. Supp. 572 (N.D. Ohio 1995), Frazier v. Septa, 49 Fair Empl. Prac. Cases (BNA) 856 (E.D. Pa. 1988) [check cite]. Although the class certification issue was not raised within the "pattern or practice" context in these decisions, the reasoning of the courts and the consequences that flowed from those decisions are instructive. In certifying a class of sexual harassment victims in Bremiller, the court recognized that the "mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible." Bremiller. 898 F. Supp. at 578. In this regard, the court was merely following the intent embodied in Fed. R. Civ. Proc. 23, as expressed by its framers, that "class actions . . . may remain [appealing] despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class." Rules Advisory Committee Notes to 1966 Amendments to Rule 23.

/8 Notably, long before Jenson and Neal, EEOC prevailed in a Northern District of Illinois case which alleged, among other things, a pattern or practice of sexual harassment discrimination. See EEOC v. Blue Ox Restaurant, 40 Empl. Prac. Dec. (CCH) Para. 36,326, p. 43,363 (N.D. III. 1985) (adopting agency's proposed conclusion of law that the Defendant "engaged in a pattern or practice" of sexual harassment against a class of female employees). A copy of this decision is submitted herewith as Ex. 4.

/9 Sexual harassment claims are also unlike failure to hire claims, in that there is no need to shift the burden of proof with respect to the employer's motivation after the pattern and practice is found. In a failure to hire case, the employer's motivation in failing to hire each class member remains relevant, even though a pattern or practice of racial discrimination has been found and the employer held liable therefor; accordingly, the employer may still escape liability to a particular individual by meeting its burden of proving that it would have made the same hiring decision as to that particular individual in the absence of discrimination. In a sex harassment case, the employer's motive in allowing a hostile sexual environment is irrelevant. In this respect, proof of entitlement for each class member would be less onerous in the sexual harassment context than the hiring context.

/10 In this regard, Mitsubishi's position that "pattern or practice" claims are inapplicable in the sexual harassment setting because sexual harassment cases have a different analytical framework and do not fit neatly within the Teamster's framework is as illogical as arguing that individual sexual harassment cases are not actionable under Title VII because such cases do not fit neatly within the McDonnell Douglas framework.

/11 EEOC also agrees with Mitsubishi that constructive discharge claims are individual in nature and would need to be addressed individually in phase II remedial proceedings.

/12 In its motion, Mitsubishi introduces certain, selected facts relating to the claims of a handful of the more than 300 women whom EEOC has identified to date as known victims and/or class members to attempt to illustrate the individualized nature of sexual harassment claims. See Mitsu. Mem., pp. 14 et seq. Because the motion pending before this Court does not concern the viability of particular individual claims, EEOC does not respond herein to Mitsubishi's discussion of these individuals.

/13 EEOC uses the same numbers as does Mitsubishi in Mitsu. Ex. 2 to identify 292 of the "known victims and/or class members. identified by EEOC. Other victims, witnesses and harassers referred to in this Response are also identified by position and number in accordance with Ex. 58 filed herewith under seal. Mitsubishi claims that these women were not timely identified as women for whom EEOC seeks relief. Although the issue is not presently before the Court, even if Mitsubishi were correct, it is well established that the testimony of all witnesses may be introduced to establish a hostile environment in a sexual harassment suit, even if the witnesses are not themselves seeking relief. See, e.g., EEOC v. Gurnee Inn, 48 Fair. Empl Prac. Cas. (BNA) 871, 879, aff'd, 914 F.2d 815, 817 (7th Cir. 1990) (observance of sexual harassment of others created a hostile work environment). See also Hall v. Gus Construction Co.. Inc., 842 F.2d 1010, 1015 (8th Cir. 1988); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-1416 (10th Cir. 1987). See also Volk v. Coler, 845 F.2d 1422, 1427 (noting evidence of sexual harassment of non-party witnesses). Furthermore, as discussed in more detail in Section I(C), infra, these other episodes are highly relevant to rebutting Mitsubishi's "notice" defense, since an employer who has reason to know of a pervasive problem of sexual harassment in its plant will not be heard to complain that it lacked notice of a particular case. See e.g., Brooms v. Regal Tube Co., 881 F.2d 412, 420-421 (7th Cir. 1989) (Court found that employer had notice because of prior complaints). Gurnee Inn, 48 Fair Empl. Prac. Cas. (BNA) at 878, aff'd, 914 F.2d 815, 817 (7th Cir. 1990) (Knowledge of harassment is imputed to employer where harasser's conduct is "open and notorious.).

/14 Twenty-six of the 28 plaintiffs in Evans, on whose behalf EEOC intervened in that lawsuit, have recently reached agreement in principle on a monetary settlement of their claims. EEOC expects that they will testify about their experiences during the trial of this case. As with other witnesses, the experiences of the Evans plaintiffs will be admissible at the trial of this case. Footnote 13, supra.

/15 As set forth in Mitsubishi's motion, bargaining unit employees at Mitsubishi are called associates. They work in groups of 15-30 employees, and are supervised and managed by unit group leaders and group leaders who report branch managers.

/16 Although periodic travel to Japan was necessary for certain jobs occupied by females at the plant, Mitsubishi's Japanese management resisted sending them to Japan. Take the case of Victim #87, for example. A Systems Planner for Mitsubishi, Victim #87 was not allowed to go to Japan for training necessary for the performance of her job. Instead, she was required to train a male who worked under her about the computer system she was working on so that he could go in her place. Ex. 18.

/17 See, Jenson v. Eveleth Taconite Co.. Inc., 824 F. Supp. 847, 880 (D. Minn. 1993), citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3rd Cir. l990)("The pervasive use of derogatory and insulting terms relative to women generally and addressed to female employees personally may serve as evidence of a hostile environment.")

/18 Andrews, at 1485

/19 Jenson, id

/20 Basekerville v. Culligan International Co., supra, 50 F.3d at 430.

/21 The company finally got around to firing Male Associate #1 in August, 1994, years after it first received notice of his outrageous and dangerous behavior. But even in its termination of this male harasser, Mitsubishi showed its contempt for victims of harassment, as the reason for his termination was stated as job abandonment, not sexual harassment.

/22 Contrary to Mitsubishi's argument, the fact that other types of offensive notes were pinned on the backs of unpopular male employees is not a defense to sexual harassment.

/23 At least one of these employees was later promoted to the supervisory Group Leader position. See Ex. 64.

/24 Oddly, Mitsubishi cites this incident in its Exhibit 10, apparently because ER, when it learned of the incident, forced the harasser to pay the victim $20.00 for a new haircut.

/25 Notably, an arbitrator criticized the company for taking so long to address the situation which ultimately led to the termination. Ex. 77, p.6.

/26 Although Mitsubishi claims that 15 individuals were terminated for sexual harassment, the company's own records indicate that some of them were terminated for other reasons, such as lying on an employment application or unauthorized absences. See, Termination Letters of various employees, Ex. 82, 83, 84. Notably, Mitsubishi has not provided the Court with so much as the names of these individuals, let alone any documentation relating to the terminations of these 15 individuals or setting forth the reasons therefor.

/27 As is discussed more fully in Section I.D.1., below, Mitsubishi's argument that only complaints made to ER are sufficient to give the company "notice" (Mitsu. Mem., p. 18)╬in disregard of the clear message that the company communicated to its employees that they could complain to their immediate supervisors╬is nothing short of outrageous.

/28 Much of this harassment by supervisors occurred during the female associates' 90 day probationary period. Female employees were especially wary about making waves during their first few months at the plant. Some believed that no complaints to Employee Relations were allowed during the probationary period. See Exhibits 31, 47, 55. Others were warned not to complain or they would be branded as trouble makers. See Exhibits 38, 52.

/29 Mitsubishi also discusses this incident in it Motion. According to the materials submitted by Mitsubishi, Victim #150 complained to ER that the male associate had gestured at his crotch, and that following her complaint, he had begun calling her at home. According to the documentation submitted by Mitsubishi, she was unable to prove that he was the one making the calls, and, in an interview requested by the alleged harasser, not by ER, he denied them. No action was taken by ER with respect to the calls or the underlying harassment which went on for a period of two to three years. This is another example of the type of "effective response" on which Mitsubishi relies for its defense.

/30 Mitsubishi cites this victim as an example of successful dealing with a problem, because after an investigation of anonymous calls, they stopped, although no disciplinary action was taken against the alleged caller. The victim was not working for Mitsubishi at the time she was interviewed by EEOC: "I'm better when I'm away from DSM." Mitsu. Ex. 11.

/31 Among the participants: Staff Engineer #1 began his career at Mitsubishi in 1987, was promoted to Unit Group Leader in 1989, and held that position until 1993 when he was promoted to a Staff Engineer position; he was promoted again in 1995. G Ex. 68, p. 35. He figures prominently in photographs of the April 29, 1994 sex party (G. Ex. 68, p. 1)--a party for which he arranged the room at the Parkway Inn in Bloomington. G. Ex. 68, pp 4143. Unit Group Leader #2 began as an Associate with Mitsubishi in January 1990 and was promoted to Unit Group Leader in November 1991. G. Ex. 68, p. 3940. Unit Group Leader #3 began with Mitsubishi in July 1991 and became a Unit Group Leader in April 1994. G.Ex. 68, p. 30. Unit Group Leader #3 n . . . had seen some of the pictures from these parties which included nude female strippers. [He] stated he that he did not tell anyone they had to put away these pictures and he basically ignored the fact that they were there." G. Ex. 68, p. 66.

/32 For example: "I have been present at management meetings where photographs were passed around of strippers performing at management parties." Ex. 56. And, "I have seen, on 3 or 4 separate occasions, the 'sex party' pictures showing Mitsubishi men with naked women. My [Group Leader] was standing right there when I saw them and also saw them. These pictures would be passed around the break area. Ex. 41. And further, "I saw pictures of nude women which were brought into the QC (break room) and displayed openly on the table. I was told in 1994 that the pictures were from 'stripper parties' . . . that were attended by management and coworkers. . . In July of 1994, I opened my toolbox and found a photograph of a nude stripper.. Ex. 19.

/33 Other supervisory and staff personnel already identified as permitting themselves to be photographed at the Mitsubishi sex parties include Unit Group Leader #5 (G. Ex. 68, pp. 24, 28-29, 98), Staff Engineer #4 (promoted from Group Leader) (G. Ex. 68, pp. 25, 31), Staff Engineer #2 (promoted from Unit Group Leader) (G. Ex. 68, p. 32, 26), Staff Engineer #3 (G. Ex. 68, pp. 1, 8, 33, 25-26, ), and Unit Group Leader #6 (G. Ex. 68, pp. 4, 7, 36).

/34 This was 14 months after (the recently settled) Evans. et al v. Mitsubishi, C.D. Illinois (Peoria Div.) No. 94-1545 (Judge Mihm), private sexual harassment case had been filed. The Mitsubishi sex parties continued during the same time the company was actively defending the Evans case. G. Ex. 68, pp. 72, 74.

/35 Of course, this was not the first time that Mitsubishi had attacked the victims of harassment for asserting their federal rights. On December 20, 1994, following the filing of the Evans lawsuit, Patrick Walter, Vice President and General Manager, sent a letter to all employees. Ex. 71. The letter asked for the support of all employees, saying that "our response, not just as a legal defense in court, but in complete honesty and candor, is an absolute denial of these accusations. .. " The letter branded the charges as "vicious accusations." Ex. 71.

/36 In a fitting anecdote, at the end of his plant-wide speech-a speech in which he spoke of the company's commitment to prevent sexual harassment--General Counsel Gary Schultz was shown a cartoon of a man holding a handbook which states on its cover "Mitsubishi does not tolerate sexual harassment in the workplace," but when the cartoon character opens the book, there is a nude centerfold. Schultz's reaction was, "What I am saying is, you know, people are passing this around and laughing about it . . . and yea, its funny okay.. Ex. 70. Thereafter, he uttered some platitudes. However, his message was plain: The attitude of Mitsubishi management at the highest levels was less than serious.

/37 Again it is startling that Mitsubishi cites this as an example of its effective sex harassment policy. Its Exhibit S is a portion of the deposition of one of the women, apparently attached to show (bat she did not personally go into the men's room, and that it was removed after she had called a union leader who had taken a picture of it.

/38 Phrased another way, Mitsubishi's argument is that, if it somehow "deals" (even if ineffectively) with each particular, discrete "incident" of sexual harassment, that is all that it is required to do--even if the discrete incidents follow one after another after another, day after day, month after month, year after year. At bottom, it is an argument that Mitsubishi is entitled to at least one "free shot" of sexual harassment at every employee and that the company has no legal obligation to prevent or eradicate a sexually hostile and abusive work environment ever. The evidence discussed in this memorandum is illustrative of the consequences of that corporate philosophy.

/39 Fifteen women identified in Mitsubishi's Exhibit NN to Affidavit of Paul Betts would be denied relief if the Court were to bar claims for individuals who left employment prior to January 20, 1992 (300 days prior to filing of the Paz charge).

/40 In Gurnee Inn, the defendant argued that the "limitations period" was the date two years prior to the filing of the charge; here Defendant argues that the "limitations period" is 300 days prior to the date on which the EEOC filed the Commissioner's Charge. Although the two defendants differ on their definition of the limitations period, neither "limitations period" limits the class on whose behalf the EEOC may obtain relief.

/41 The court in Waltman noted: "Other courts, including the Supreme Court, have heard sexual harassment claims involving separate incidents spanning many years without even mentioning the timeliness issue. id. at 476 (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986).

/42 Defendant argues that EEOC is barred from seeking relief for those victims who allege "actionable harassment" prior to June 23, 1993. Mitsu. Mem. at p. 28. Presumably, it is defendant's strategy to later argue that evidence of harassment prior to June 23, 1993 is irrelevant for establishing EEOC's claims. This attempt to place EEOC's claims in a "Catch 22" cannot succeed. The crux of the issue is that despite Defendant's being aware of "substantial" numbers of complaints prior to June 23, 1993, it did nothing to alleviate the hostile environment and the conduct continued. Mitsubishi admits that with regard to known complaints of the identified victims prior to June 23, 1993, that "their numbers are substantial." Mitsu. Mem. at p. 28. The evidence will show that the numbers of victims of harassment after June 23, 1993 are substantial as well.

/43 The only case cited by Defendant which involves multiple victims of harassment is EEOC v. United Ins. Co. of America, 666 F. Supp. 915 (S.D. Miss. 1986). To the extent that the district court's decision in United Ins. held that EEOC is bound by a limitations period even where a continuing violation has been established, that position has been rejected by the Seventh Circuit in Gurnee Inn. 914 F.2d 815, 819.

/44 Of course, victims would not be entitled to compensatory and punitive damages for acts which occurred prior to November 21, 1991, the effective date of the Civil Rights Act of 1991. Landsgraf v. USI Film Products, 511 U.S. 244 (1994).

/45 EEOC's motion for leave to file its First Amended Complaint was filed, with the First Amended Complaint, on August 14, 1997. The Court has reserved decision.

/46 The proposed First Amended Complaint erroneously uses the date of December 1, 1992 for the Paz charge. The correct date in November 13, 1992.

/47 If the Court were to disagree that the intervention is equivalent to a cause finding, EEOC can still find reasonable cause with respect to the pending Paz charge, and, if conciliation fails, use it as the basis for this lawsuit.

/48 Defendant correctly states that, "The EEOC filed its Complaint in this case on April 9, 1996, three-and-a-half years after its receipt of harassment allegations..." Mitsu. Mem. at p. 36. Thus, Defendant had notice of class-based sexual harassment allegations three-and-a half years prior to the EEOC's original Complaint.

/49 Mitsubishi argues throughout its Motion that it did not have notice of sexual harassment throughout the plant. Whether lack of actual knowledge of specific incidents of sexual harassment is a defense to liability goes to ultimate questions of liability and not whether laches bars certain claims.

/50 As a preliminary matter, the Court has discretion whether the doctrine of laches is even applicable to EEOC. See e.g., EEOC v. Chicago Miniature Lamp Works, supra, 640 F. Supp. 1291, 1298 ("laches should not be invoked against the government when it acts to enforce a public right or protect a public interest"); EEOC v. Great Atl. & Pac. Tea Co., 735 F.2d 69, 81 (3rd Cir. 1984)(Rejecting a laches defense and noting that a court should take into account that the EEOC is "vindicating both the public interest in eliminating employment discrimination and the private interest of [the individuals] it represents").

/51 It is unclear as to the relief sought by Mitsubishi in raising the laches defense. It does not seek dismissal of specific claims or specific victims, and-it does not seek to bar claims before a specific date.

/52 Because Mitsubishi cannot show unreasonable delay or any material prejudice, its argument to limit damages must also be rejected. See EEOC v. Massey-Ferguson. Inc., 622 F.2d 271 (7th Cir. 1980) (holding that laches may limit back pay claims if the defendant could prove inexcusable or unreasonable delay and resulting prejudice). In addition to seeking limits on back pay awards, Mitsubishi seeks to limit other damages. Mitsubishi states "[t]he rationale supporting the laches dismissal of back pay claims is even more compelling in this case, where the EEOC is seeking compensatory and punitive damages on behalf of each individual claimant. n Mitsu. Mem., p. 37. Mitsubishi does not and cannot cite authority for the proposition that exposure to compensatory or punitive damages should be limited in the same manner as back pay awards. Clearly, the rationale for limiting back pay awards is directly proportional to the length of the delay and is not, therefore, applicable to compensatory or punitive damages awards. See e.g., EEOC v. PHH, 702 F. Supp. 1213, 1224 (D. Md. 1989) (noting that delay in filing suit may prejudice a defendant due to inflated back pay damages).

53 Again, the relief requested by Mitsubishi is puzzling since EEOC has been willing to have settlement discussions at any point in time during litigation. Revisiting conciliation would offer no benefit beyond that which can be achieved through settlement negotiations, should Mitsubishi desire to begin them.

/54 Therefore, any claim by Mitsubishi that the EEOC did not conciliate in good faith because the terms were presented as "broad conceptual provisions" is of no avail to Mitsubishi.

/55 Mitsubishi's letter acknowledged that there are possible victims with a pending lawsuit ("the Evan's plaintiffs") and threatens that EEOC's charge could be detrimental to those claims.