The EEOC’s letter informing an employer of its finding that there was probable cause to believe it discriminated against an employee on the basis of her sex and inviting it to informally resolve the claim, together with the subsequent declaration of its field office director regarding actions taken by it prior to filing suit, sufficiently satisfied its duty to conciliate, ruled a federal district court in Maryland, granting the agency’s motion for partial summary judgment on this issue. The court also granted the agency’s motion to strike those portions of the employer’s briefing and its counsel’s affidavit that revealed some of what was said or done during the conciliation process (EEOC v. Dimensions Healthcare System, D.Md., May 27, 2016).
On maternity leave. Promoted in April 2012 to team leader, the employee took maternity leave two years later. Several months after she returned from leave, she learned one of her former subordinates had been promoted to a manager position. She complained and was purportedly told that the subordinate was selected instead of her because she had been “on maternity leave for a while.” She resigned and filed a charge of discrimination with the EEOC.
Conciliation efforts. On May 11, 2015, the EEOC issued its written determination finding reasonable cause to belief the employer had discriminated against the employee in violation of Title VII. It also invited the employer to join with it in resolving the matter, stating that conciliation had now begun. It contended that while the parties initially engaged in communications, as of July 7 efforts to conciliate were unsuccessful and all further efforts would be futile or nonproductive.
The agency then filed a lawsuit against the employer on behalf of the employee. Although the employer raised the affirmative defense that the EEOC’s claims were barred to the extent it failed to properly conciliate, it withdrew this defense in its amended answer. While discovery was ongoing, the EEOC moved for partial summary judgment, asserting that the employer refused to stipulate that the agency had fulfilled all conditions precedent to the filing of the lawsuit. The employer, however, argued that a fact dispute remained as to whether the EEOC failed to properly negotiate prior to filing the lawsuit.
Narrow review. Citing the Supreme Court’s Mach Mining decision, the court pointed out that although the EEOC’s duty to conciliate is subject to judicial review, the review is limited to whether the EEOC informed the employer about the specific allegation and whether it tried to engage it in some form of written or oral discussion so as to give it an opportunity to remedy the allegedly discriminatory practice.
With respect to the first issue, the EEOC must provide the employer with notice that “properly describes both what the employer had done and which employees (or what class of employees) have suffered as a result.” As to the second part of the test, it need only “endeavor” to conciliate a claim and a sworn affidavit from the EEOC stating that it has performed its obligations but that its efforts have failed will usually suffice, the court explained. If the employer provides credible evidence of its own indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.
Noting that this “relatively barebones” review is all a court is permitted to inquire into when considering a failure-to-conciliate defense, the court here pointed out that the EEOC submitted the declaration of the field office director indicating that it determined there was reasonable cause to believe the employer failed to promote the employee because of her sex; sent a letter indicating as much and inviting the employer to informally resolve the claim; engaged in communications with the employer between May 11 and July 7 to provide it with the opportunity to remedy the discriminatory practices including sending it a conciliation proposal; and then issuing the employer a notice that conciliation efforts had been unsuccessful.
This was sufficient for the EEOC to show it “endeavor[ed] to eliminate the unlawful employment practice by informal methods prior to filing suit.” The letter informed the employer about the specific obligation and the declaration established that the EEOC tried to engage the employer in some form of discussion prior to filing suit.
Good faith argument foreclosed. While the employer argued that the agency did not try in earnest to reach a resolution prior to filing suit, and in support submitted the affidavit of its counsel who provided certain details as to the content of the conciliation process, the court found those details were not only irrelevant to scope of its review under Mach Mining, they also violated Title VII’s confidentiality provision. Further, to the extent the employer requested that the court pry into whether the EEOC negotiated in good faith, the court found that any such argument was explicitly foreclosed by Mach Mining, as multiple courts have recognized.
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