EEOC met conciliation obligations even if it later identified 99 more aggrieved individuals in suit
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Thursday, April 5, 2018

EEOC met conciliation obligations even if it later identified 99 more aggrieved individuals in suit

By Lorene D. Park, J.D.

Granting partial summary judgment to the EEOC, a federal court in New Mexico found that the agency satisfied its pre-suit conciliation obligation by notifying the employer of age bias claims by a class of corrections officers and giving it a chance to remedy the discrimination. The court rejected the employer’s argument that the agency could only bring claims for wrongdoing discovered and disclosed in the pre-suit investigation and conciliation period (EEOC v. State of New Mexico, Department of Corrections, March 27, 2018, Gonzales, K.).

This enforcement action arose from the New Mexico Department of Corrections’ (NMDC) alleged failure to promote correctional officers (CO) over the age of 40. The first claimant filed his EEOC charge in 2010 after the warden passed him over for promotion in favor of a 31-year-old. Between 2010 and 2013, two other COs also filed age discrimination charges.

Investigation. The EEOC investigated, requesting: position statements and personnel files for the charging parties; information on COs who sought promotions to lieutenant or above at the Central New Mexico Correctional Facility; a list of employees and supervisors, including hire dates, position, and reason for leaving; and a list of discrimination complaints by all NMDC employees. An EEOC investigator visited the facility and interviewed at least 25 employees.

In a May 2012 letter, the agency informed the NMDC that it was expanding its investigation to encompass potential age discrimination “against a class of individuals” in the entire state. The EEOC then requested a complete list of all NMDC employees since January 1, 2010, including name, contact information, hire date, position, and other information. In August 2013, the agency contacted each individual to find out if they experienced or witnessed age discrimination.

Conciliation refused. After the investigation, the agency found age discrimination in at least five NMDC facilities. It issued letters stating there was reasonable cause to believe the NMDC violated the ADEA as to two claimants “and other aggrieved individuals.” The letters invited the NMDC to conciliate. In April 2014, the EEOC sent a conciliation proposal asking the NMDC to make certain policy changes and to pay $1,150,000, among other damages. The proposal identified a total of 16 class members and referred to unidentified class members as well.

The NMDC requested additional information and the agency provided a break-down of claimed backpay for each identified individual. It also defined the “unidentified class” as “other putative class members who may have been subjected to similar actions of discrimination and retaliation from July 16, 2010 to September 26, 2013 in the correctional facilities statewide.” The EEOC estimated it would identify at least 11 more aggrieved individuals. The NMDC declined the agency’s offer to conciliate and again refused when the agency sent a revised proposal.

99 more aggrieved individuals. The EEOC filed suit under the ADEA and, after discovery, it identified 99 additional aggrieved individuals who allegedly experienced discrimination at NMDC between 2009 and 2017. Some of the alleged discrimination occurred after the reasonable cause determination letters were issued in September 2013.

EEOC need not identify all class members before litigation. The parties filed cross-motions for summary judgment on the issue of whether the EEOC fulfilled the statutory prerequisites to suit under the ADEA. Pointing to the Eighth Circuit’s decision in EEOC v. CRST Van Expedited, Inc. and a Colorado district court’s decision in EEOC v. Original Honeybaked Ham Co., the NMDC argued that the EEOC could only bring claims for wrongdoing discovered and disclosed during the prelitigation investigation and conciliation period.

Disagreeing, the court pointed to two Tenth Circuit cases from the 80s and explained that the EEOC’s “investigative function” includes “discovering other possible victims of the company’s” discriminatory practices after the case has commenced. Indeed, a “trial court can be reversed for curtailing this investigative function during discovery,” said the court. Thus, the agency need not discover or identify each class member prior to conciliation or litigation.

Inadequate conciliation no defense. The court further explained that inadequate conciliation is not a defense to liability so it would not dismiss the suit on this ground. The only remedy for inadequate conciliation is to stay proceedings until informal conciliation can be concluded.

No dismissal for inadequate investigation either. Furthermore, to the extent the rulings in CRST and Honeybaked Ham were predicated on an inadequate investigation, dismissal would still not be appropriate. Those cases were decided under Title VII, which explicitly requires an investigation before the EEOC issues a reasonable cause determination or files suit. In contrast, the EEOC is not formally tasked with investigating ADEA claims, explained the court.

Conciliation adequate as matter of law. Ultimately, the court granted summary judgment for the EEOC finding it satisfied its conciliation obligations. Pointing to the Supreme Court’s Mach Mining decision, the court explained that judicial review is narrow and focuses on whether the agency informed the employer of the specific allegations, describing what it allegedly did and to whom, and whether the EEOC gave the employer a chance to remedy the alleged discriminatory practice. Here, the agency satisfied these requirements by: promptly notifying NMDC of all charges; disclosing specific allegations that a decisionmaker denied promotions to workers over the age of 40 and retaliated against those who complained; requesting documents directed at improper hiring, promotion, and firing decisions; and issuing determination letters with language about retaliation and age discrimination. The EEOC also sufficiently described the affected class.

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