also filed a charge of employment discrimination with a federal, state or city fair employment practices agency, the Transit Authority would transfer the complaint from the Equal Employment Opportunity Division to the Law Department, another branch of the Transit Authority, for continued investigation.
While investigating a charge of employment discrimination the United States Equal Employment Opportunity Commission found reasonable cause to believe that this Transit Authority policy was unlawful retaliatory conduct in violation of Title VII. On April 2, 1993 the Department of Justice so notified the Transit Authority and stated that suit had been authorized.
After the Transit Authority told the Department of Justice of a willingness to modify the policy accordingly, the Department of Justice sought a consent decree requiring the Transit Authority to change its policy to comply with Title VII. The Department of Justice wished to ensure that the Transit Authority would not revert back to the allegedly unlawful practice.
The Transit Authority refused to enter into a consent decree because, among other reasons, it did not agree the policy was unlawful and it wished to preserve its right to reinstate its policy should it ultimately be decreed lawful in later litigation elsewhere. Nonetheless, on June 21, 1993 the Transit Authority changed its policy by issuing an official memorandum from the Transit Authority's President addressed to all Transit Authority employees.
Under the announced new policy, complaints filed with the Equal Employment Opportunity Division will be investigated by that division whether or not the complaining employee also filed a complaint with an outside agency. According to an affidavit of Assistant Vice President Frank Leslie, the Transit Authority has no plans to return to its former policy.
On July 27, 1993, five weeks after the Transit Authority changed its policy, the United States brought this suit.
As the Supreme Court ruled, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, does not i.e., make the case moot." United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953). "The case may nevertheless be moot if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated.' The burden is a heavy one." Id. at 633, 73 S. Ct. at 897 (citation omitted). Under that case the relevant considerations are as follows:
The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. . . . To be considered are the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations.