                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-8006
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
                                                Plaintiff-Respondent,
                                  v.

CATERPILLAR, INC.,
                                                Defendant-Petitioner.
                          ____________
             Petition for Permission to Appeal from the
                 United States District Court for the
            Northern District of Illinois, Eastern Division.
            No. 03 C 5636—Rebecca R. Pallmeyer, Judge.
                          ____________
      SUBMITTED APRIL 20, 2005—DECIDED MAY 27, 2005
                          ____________




  Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.
  POSNER, Circuit Judge. Karon Lambert, formerly employed
in Caterpillar’s plant in Aurora, Illinois, filed a charge with
the EEOC claiming that she’d been fired for spurning her
supervisor’s sexual advances. After an investigation, the
Commission notified Caterpillar that it had “reasonable
cause to believe that Caterpillar discriminated against Lambert
and a class of female employees, based on their sex.” After
the Commission’s efforts at conciliation failed, it sued
2                                                  No. 05-8006

Caterpillar under Title VII, alleging that the company had
discriminated against female employees at the Aurora plant.
Caterpillar moved for summary judgment on the ground
that the allegation of plant-wide discrimination was unre-
lated to Lambert’s charge. The district judge denied the
motion. Caterpillar asked the judge to certify her ruling for
interlocutory appeal under 28 U.S.C. § 1292(b). She agreed
because, as far as she knew, “the Seventh Circuit has not
specifically addressed the question of whether a court may
review the EEOC’s investigation to determine whether a
complaint filed on behalf of a group of workers is proper.”
She certified the following question: “In determining
whether the claims in an EEOC complaint are within the
scope of the discrimination allegedly discovered during the
EEOC’s investigation, must the court accept the EEOC’s
Administrative Determination concerning the alleged dis-
crimination discovered during its investigation, or instead,
may the court itself review the scope of the investigation?”
We grant leave to appeal, and proceed to answer her ques-
tion.
  When a charge of discrimination is filed with the EEOC,
the Commission must notify the alleged offender(s), investi-
gate the charge, and if the investigation gives rise to a
reasonable belief that the charge is true, may (with irrele-
vant qualifications) sue any of the alleged offenders. 42
U.S.C. § 2000e-5(f)(1). Caterpillar argues that the agency’s
reasonable-cause determination is judicially reviewable,
citing such dicta as that the “EEOC may allege in a com-
plaint whatever unlawful conduct it has uncovered during
the course of its investigation, provided that there is a reason-
able nexus between the initial charge and the subsequent
allegations in the complaint,” EEOC v. Harvey L. Walner &
Associates, 91 F.3d 963, 968 (7th Cir. 1996), or that the Com-
mission “may, to the extent warranted by an investigation
No. 05-8006                                                   3

reasonably related in scope to the allegations of the underly-
ing charge, seek relief on behalf of individuals beyond the
charging parties who are identified during the investiga-
tion.” EEOC v. United Parcel Service, 94 F.3d 314, 318 (7th
Cir. 1996). See also EEOC v. Wilson Metal Casket Co., 24 F.3d
836, 840 n. 3 (6th Cir. 1994); EEOC v. Delight Wholesale Co.,
973 F.2d 664, 668-69 (8th Cir. 1992); Harris v. Amoco Production
Co., 768 F.2d 669, 684-85 (5th Cir. 1985); Lucky Stores, Inc. v.
EEOC, 714 F.2d 911, 912 (9th Cir. 1983).
  All these, however, are cases that either were filed by a
private individual rather than by the Commission or that
transpose uncritically language from such cases. For exam-
ple, the statement in United Parcel that the claim sued upon
must be “reasonably related” to the initial charge is copied
from Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994), a suit by an individual, while the lan-
guage in Walner requiring a “reasonable nexus” between an
EEOC suit and the initial charge can be traced through
EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (6th Cir.
1975), and EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361
(6th Cir. 1975), to another private-party suit, Tipler v. E.I.
duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971).
No case actually holds that the scope of the EEOC’s inves-
tigation is a justiciable issue in a suit by the EEOC, and
Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979), holds
that it is not.
  The difference between the two classes of case is that
exhaustion of administrative remedies is an issue when the
suit is brought by a private party but not when the
Commission is the plaintiff. Were the private party per-
mitted to add claims that had not been presented in the ad-
ministrative charge filed with the EEOC, the Commission’s
informal procedures for resolving discrimination charges,
see 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.24, would be by-
4                                                  No. 05-8006

passed, in derogation of the statutory scheme. Great American
Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 375-76
(1979); Cable v. Ivy Tech State College, 200 F.3d 467, 476-77
(7th Cir. 1999); Anjelino v. New York Times Co., 200 F.3d 73,
93 (3d Cir. 1999). That is not an issue when the EEOC itself
is the plaintiff, which is why a suit by the EEOC is not con-
fined “to claims typified by those of the charging party,”
General Telephone Co. v. EEOC, 446 U.S. 318, 331 (1980); see
also EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002);
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977); In re
Bemis, 279 F.3d 419, 422 (7th Cir. 2002), and why Caterpillar
is mistaken to think that the EEOC’s complaint must be
closely related to the charge that kicked off the Commis-
sion’s investigation. “Any violations that the EEOC ascer-
tains in the course of a reasonable investigation of the
charging party’s complaint are actionable.” General Telephone
Co. v. EEOC, supra, 446 U.S. at 331. The charge incites the
investigation, but if the investigation turns up additional
violations the Commission can add them to its suit.
  If courts may not limit a suit by the EEOC to claims made
in the administrative charge, they likewise have no business
limiting the suit to claims that the court finds to be sup-
ported by the evidence obtained in the Commission’s
investigation. The existence of probable cause to sue is gen-
erally and in this instance not judicially reviewable. See FTC
v. Standard Oil Co. of California, 449 U.S. 232, 242-43 (1980);
Stewart v. EEOC, 611 F.2d 679, 683 (7th Cir. 1979); Borg-
Warner Protective Services Corp. v. EEOC, 245 F.3d 831, 835-36
(D.C. Cir. 2001).
No. 05-8006                                             5

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—5-27-05
