Opinion
CIVIL ACTION NO. 4:14-CV-03588
12-04-2015
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, And SUBRENA TARVER, ERNIE TARVER, and PRISCILLA MENEFEE, Plaintiffs-Intervenors v. LAWLER FOODS, INC., and LAWLER FOODS, LTD., Defendants.
MEMORANDUM AND RECOMMENDATION
Before the Court is Plaintiff Equal Employment Opportunity Commission's ("EEOC's") motion for partial summary judgment (Dkt. 26) on the issue of Lawler Foods's affirmative defense that the EEOC failed to satisfy its statutory obligation to attempt conciliation before filing this lawsuit. After reviewing the briefing and the law, the Court recommends that the EEOC's motion be granted.
BACKGROUND
In November 2009, Subrena Tarver, Ernie Tarver, and Priscilla Menefee filed charges with the EEOC alleging that they were not hired by Lawler Foods because they are black. Dkt. 26, ¶ 3. The charges were later amended to include allegations that Lawler Foods discriminates against blacks as a class. Id.
The EEOC sent "like or related" letters to Lawler Foods in March 2011 and February 2014, explaining that it was expanding its investigation to include class discrimination in hiring practices, first against blacks and later against all non-Hispanics. Id., ¶ 4. The February 2014 letter stated that the EEOC was investigating both intentional failure to hire non-Hispanics and the potential disparate impact on non-Hispanics resulting from Lawler Foods's use of word-of-mouth recruiting and Spanish language fluency preferences. Id., ¶ 4 n.2. Three months after sending the second "like or related" letter, the EEOC determined that Lawler Foods intentionally failed to hire non-Hispanics as a class and used applicant-screening techniques that disparately impacted non-Hispanics. Id., ¶ 5.
Between January 2013 and December 2014, the EEOC and Lawler Foods engaged in many written exchanges discussing the charges and proposed settlements. Id., ¶¶ 6-7. The EEOC cannot present to the Court the specific contents of its pre-suit communications with Lawler Foods because Title VII prohibits disclosure of such details under criminal penalty. See 42 U.S.C. § 2000e-5(b) ("Nothing said or done during and as a part of [the informal conciliation process] may be made public by the Commission . . . or used as evidence in a subsequent proceeding without the written consent of the persons concerned."); see also EEOC v. Philip Servs. Corp., 635 F.3d 164, 166 (5th Cir. 2011) ("By its plain language, the statute does not carve out any exceptions to its prohibition against disclosure of conciliation material."). The EEOC asserts, however, that it deemed conciliation to have failed in August 2012 and again in August 2014, but continued to attempt to resolve the case after August 5, 2014. Dkt. 26, ¶ 7. Ultimately, the EEOC found Lawler Foods's counterproposals insufficient and brought suit in December 2014. Id., ¶ 8.
ANALYSIS
Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
Under Title VII, the EEOC must "endeavor to eliminate any [ ] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). Conciliation efforts must fail before the EEOC can bring suit in court. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015). As Title VII provides, the EEOC may bring a civil action once it is "unable to secure from the respondent a conciliation agreement acceptable to the Commission." 42 U.S.C. § 2000e-5(f)(1).
The Supreme Court recently confirmed in Mach Mining that the issue of whether the EEOC has fulfilled its statutory duty to attempt conciliation is subject to judicial review. 135 S. Ct. at 1652-53. That the EEOC's satisfaction of this obligation is judicially reviewable is hardly a landmark change in the law—the Fifth Circuit, for example, has long reviewed the EEOC's conciliation efforts before permitting an action to proceed. See EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir. 1981) (applying a three-part test to ensure compliance). In fact, apart from the Seventh Circuit's now vacated decision in EEOC v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013), no other circuit court had explicitly rejected the affirmative defense of failure to conciliate. See id. at 182.
What makes Mach Mining noteworthy is the narrow scope of review that it recognized. At one extreme, the Government argued "for the most minimalist form of review imaginable," in which two letters stating that conciliation was to begin and conciliation had failed would have been sufficient to establish that the EEOC had satisfactorily attempted conciliation. 135 S. Ct. at 1653. At the other extreme, Mach Mining argued for a "deep dive into the conciliation process," akin to the good faith inquiry under the National Labor Relations Act. Id. at 1653-54. The Court rejected both approaches, but ultimately adopted a position far closer to the minimalist end of the spectrum, requiring courts to engage in a "relatively barebones review" of the EEOC's conciliation efforts. See id. at 1656. To satisfy the requirements of the statute, the EEOC "must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance." Id. at 1652. "Judicial review of [these] requirements (and nothing else) ensures that the Commission complies with the statute." Id. at 1656 (emphasis added). The Court was clearly concerned that a more prying review would jeopardize the broad discretion Title VII grants to the EEOC in conducting informal settlement discussions and would conflict with the statute's inflexible non-disclosure provisions. See id.
Applying Mach Mining to the facts here, the Court finds that the EEOC has satisfied its statutory duty to attempt conciliation with Lawler Foods. The EEOC gave notice of the allegations in its "like or related letters" as well as its determination letter. Specifically, the EEOC informed Lawler Foods of its findings of a pattern or practice of rejecting black and non-Hispanic applicants as a class and the use of employment screening techniques that disparately impact those classes. These communications described what Lawler Foods had done and what class of employees had suffered. The EEOC also offered Lawler Foods ample opportunity to discuss voluntary compliance. Since January 2013, both parties engaged in extensive settlement discussions, with the EEOC making multiple settlement offers that were rejected by Lawler Foods. See Dkt. 26-1, ¶ 12. Lawler Foods never made a counteroffer that the EEOC deemed acceptable, and this Court cannot review whether that determination was reasonable. See Mach Mining, 135 S. Ct. at 1654-55 (recognizing that Congress gave the EEOC unfettered discretion over the substance of conciliation efforts).
Lawler Foods does not dispute that the EEOC conducted an investigation, issued "like or related" letters and a determination letter, or made multiple offers to settle its claims. Instead, Lawler Foods argues that the EEOC failed to provide a meaningful opportunity to remedy any unlawful employment practices by withholding certain information during the conciliation process. Specifically, Lawler Foods alleges that the EEOC failed to disclose that two black applicants were told that Lawler Foods was not interested in hiring black people, and one white applicant was told that he would not be hired because he was not Hispanic. Dkt. 30-1, ¶ 3.
The EEOC responds that Lawler Foods improperly reads Mach Mining to require the EEOC to present specific evidence supporting its allegations, rather than simply notifying the defendant of the allegedly unlawful practices. Dkt. 32 at 4. The Court agrees. Mach Mining requires the EEOC to "inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of 'reasonable cause.'" 135 S. Ct. at 1655-56. The EEOC produced the affidavit of Acting District Director Martin Ebel, in which Mr. Ebel states that the EEOC sent Lawler Foods a determination letter setting forth its investigatory findings. Dkt. 26-1, ¶ 11. Lawler Foods counters with the affidavit of its controller, Kristi Smith, in which she states that the EEOC never informed Lawler Foods that any of its employees had told non-Hispanic applicants that they would not be hired because they were non-Hispanic or that a Lawler Foods hiring official had stated that he subconsciously rejected black applicants, two facts alleged in the EEOC's amended complaint to support the Commission's discriminatory hiring practices claims. Dkt. 30-1, ¶ 3. Ms. Smith's affidavit, however, does not present credible evidence that the EEOC failed to provide the requisite information about the charge. At most, the affidavit shows that the EEOC did not fully disclose all of the evidence uncovered in its investigation of Lawler Foods. But Title VII imposes no duty of full disclosure upon the EEOC, and this Court cannot pry into the EEOC's strategic decisions regarding conciliation, including the content of any settlement offers. See Mach Mining, 135 S. Ct. at 1654 ("Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.").
The undisputed evidence indicates that the EEOC notified Lawler Foods that it had found a pattern or practice of intentionally failing to hire black and non-Hispanic applicants and the use of applicant screening techniques that disparately impacted blacks and non-Hispanics. In other words, Lawler Foods was told (1) what unlawful practices it had engaged in, and (2) which class of employees had suffered, as required by Mach Mining. See 135 S. Ct. at 1655-56. The EEOC also made multiple settlement offers that would have allowed Lawler Foods to remedy its allegedly discriminatory practices, but Lawler Foods chose to reject those offers. The EEOC clearly attempted to confer about the charges in an effort to informally conciliate these claims. No further judicial inquiry is permitted under Mach Mining.
Lawler Foods cites to the three-part test used in EEOC v. Agro Distribution, LLC, 555 F.3d 462, 468 (5th Cir. 2009), for assessing whether the EEOC attempted conciliation in good faith. Dkt. 30 at 5-6. That test requires that the EEOC: "(1) outline to the employer the reasonable cause for its belief that Title vii has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer." Agro Distribution, 555 F.3d at 468 (citing Klingler Elec., 636 F.2d at 107).
Mach Mining echoes the first two prongs of the Fifth Circuit's goodfaith test—the EEOC must inform the employer about its unlawful practices and the class of employees harmed by those practices and must give the employer an opportunity to remedy the violations. 135 S. Ct. at 165556. Notably absent from the Mach Mining test is any inquiry similar to that required by the third prong of the Fifth Circuit test. Mach Mining simply leaves no room for judicial review of the reasonableness and flexibility of the EEOC's conciliatory communications. See 135 S. Ct. at 1656 ("[A] court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions."). To the extent Lawler Foods invites this Court to assess the reasonableness of the EEOC's communications, the Court must decline.
CONCLUSION
For these reasons, the Court recommends that the EEOC's motion for partial summary judgment on the issue of the Commission's duty of conciliation be granted.
The parties have 14 days from service of this Memorandum and Recommendation to file written objections. Failure to file timely objections precludes appellate review of factual findings or legal conclusions, except for plain error. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72.
Signed at Houston, Texas on December 4, 2015.
/s/_________
Stephen Wm. Smith
United States Magistrate Judge