Employment Law Daily Class action revived in battle over EEOC conciliation efforts, ‘piggybacking’ of class claims
Wednesday, March 16, 2016

Class action revived in battle over EEOC conciliation efforts, ‘piggybacking’ of class claims

By Lorene D. Park, J.D. Under Mach Mining, the EEOC and the Arizona Civil Rights Division (ACRD) sufficiently conciliated Title VII and state law claims filed on behalf of a class of female corrections officers even though they were not all individually identified, the Ninth Circuit ruled, reversing summary judgment. As to timely exhaustion of administrative remedies, employees could maintain (piggyback) claims on the original charge if at least one unlawful act occurred within 300 days before the date that the first aggrieved employee filed her charge. Moreover, employees need not file a new charge after a reasonable cause determination if the unlawful acts fell within the determination (State of Arizona v. The Geo Group, Inc. dba Arizona State Prison-Florence West and Central Arizona Correctional Facility, March 14, 2016, Callahan, C.). The employee was a corrections officer for a corporation that provides detention management and health services to the Arizona Department of Corrections at: (1) the low-to-medium security units at Florence West, where the employee worked, and (2) the medium-security sex-offender unit at Central Arizona Correctional Facility. On June 5, 2009, she filed a discrimination charge with the ACRD and EEOC claiming a male sergeant grabbed her crotch and pinched her vagina. She filed a report with the employer, but no remedy was forthcoming. Thereafter, coworkers reported that she made an offensive comment and she was put on leave pending an investigation. She was later suspended and fired. ACRD’s investigation. The ACRD investigated and identified other aggrieved officers. On May 19, 2010, it issued a determination substantiating the employee’s claims. It also identified other incidents by male supervisors creating a hostile environment based on sex that “adversely affected [the employee] and a class of female employees.” For example, the same sergeant allegedly told female officers he wanted to bend them “over the desk” and “ram [them] from the back” and told one to “suck his dick” while gesturing at his penis. The ACRD also found that the employer did not take reasonable steps to prevent or correct harassment and subjected female officers to different terms and conditions of employment. Indeed, after substantiating harassment claims against two male officers, it gave one a positive review and made the other an instructor at mandatory training. In contrast, complaining female officers were assigned to less desirable jobs. The EEOC adopted this determination in a separate letter to the employer. Conciliation efforts. The EEOC and the ACRD invited the employer to conciliate and conveyed letters proposing to settle the employee’s charge and the claims of other aggrieved employees. They proposed damages for the employee, a class fund for unidentified class members, and injunctive relief. In mediation, the employer made a counteroffer as to the employee but not as to the class. It asked for identities of class members but the agencies declined. Conciliation failed. Lawsuit. The agencies filed suit on behalf of the employee and a class of similarly situated employees, claiming sex discrimination, hostile work environment, and retaliation at both facilities. Granting several motions for partial summary judgment, the court dismissed the claims of 15 women who were not identified in the investigation, finding that the agencies failed to conciliate as to them. It stayed the claims of five employees identified in the investigation until after conciliation, which also failed. Thereafter, the court found the first aggrieved employee’s claims untimely as to discrete acts before August 9, 2008 (300 days before her charge). She ended up settling her claims. Two other individuals entered a consent decree. As to the remaining employees, the court found that they did not have to file separate charges for similar claims, but the pivotal date for their 300-day window was the date of the ACRD’s cause determination, not the date of the employee’s charge. The claims of two were dismissed because they did not allege any timely acts. The court found that a third failed to allege an actionable hostile work environment. The agencies appealed as to these three and the class claims. Conciliation obligations met. Vacating and remanding, the Ninth Circuit first held that the agencies clearly met the pre-suit conciliation obligations set forth by the Supreme Court in Mach Mining, LLC v. EEOC. The cause determinations detailed the allegations, referred to a “class” of female employees who had also been subject to discrimination, harassment, and retaliation at the facilities, and invited the employer to conciliate. The parties engaged in formal mediation and the agencies proposed a settlement. Even if that weren’t enough, the appropriate remedy would be to stay proceedings to permit conciliation, not dismissal of the employees’ claims. Individual conciliation not required for class action. The appeals court also rejected the district court’s premise that the EEOC and ACRD had to identify and conciliate on behalf of all class members during the investigation process before filing suit on behalf of a class. It was enough that the agencies tried to conciliate on behalf of a class. Piggyback rule applied. Although Title VII usually requires a charge be filed within 300 days after the alleged unlawful practice, “an aggrieved employee who fails to file a timely charge with the EEOC may still be able to pursue a claim under the piggyback or single-filing rule, in which the employee ‘piggyback[s]’ onto the timely charge filed by another plaintiff for purposes of exhausting administrative remedies.” Here, the district court erred in requiring that aggrieved employees allege an act that occurred within the 300 days before the cause determination. Instead, the proper start date was 300 days before the first aggrieved employee’s charge. While the district court may have been concerned that the initial charge did not provide enough notice of class claims, nothing in the statute allowed it to impute the employee’s time limit into the EEOC’s duty to notify an employer of the results of its investigation. Moreover, a single charge may put an employer on notice that others were subject to the same unlawful practices. Accordingly, the aggrieved employees who alleged acts of discrimination, harassment, or retaliation—the kind of discriminatory conduct alleged in the first aggrieved employee’s charge—within the 300 days preceding the initial charge made timely claims. No new charge if claim falls within reasonable cause determination. Moreover, “in an EEOC class action, an aggrieved employee is not required to file a new charge of discrimination if her claim is already encompassed within the Reasonable Cause Determination or if the claim is ‘like or reasonably related’ to the initial charge,” ruled the Ninth Circuit. Here, the district court erred by refusing to consider any aggrieved employees’ discrimination or retaliation that occurred after the reasonable cause determination. It should have analyzed whether the allegations were included in the determination or related to the first charge. One employee’s HWE claim also revived. Also vacated was the dismissal of the HWE claim of one of the aggrieved employees, who in the appellate court’s view, alleged sufficiently severe and pervasive conduct. For example, she claimed that a male supervisor made unwanted physical contact by spanking her in front of inmates and a cadet, and that he was “always talking dirty.” The cumulative effect of these and other incidents was enough to raise triable issues on whether the conduct altered the conditions of the workplace.

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