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November 11, 2010

Southern District of New York Dismisses EEOC’s Title VII Retaliation Claim as “Sanction” for Failure to Conciliate

On October 25, 2010, in Equal Emp’t Opportunity Comm’n v. Bloomberg, L.P., Judge Preska of the United States District Court for the Southern District of New York granted, inter alia, the defendant’s motion for summary judgment against the EEOC for failure to conciliate certain claims before bringing suit. By statute, the EEOC is permitted to sue only after exhausting good faith conciliation efforts. While the “contours of the conciliation process will vary” by case, the court stated that conciliation efforts are sufficient where the EEOC “1) outlines to the employer the reasonable cause for its belief that the employer is in violation . . . , 2) offers an opportunity for voluntary compliance, and 3) responds in a reasonable and flexible manner to the reasonable attitude of the employer.” Holding that the EEOC failed to meet this third requirement with respect to its Title VII retaliation claims against Bloomberg, the Southern District “conclude[d] that dismissal [was] the appropriate sanction” under the circumstances. The court denied, however, Bloomberg’s motion with respect to the EEOC’s conciliation efforts for its Title VII discrimination claims.

Although the conciliation process for the retaliation claims was “lengthier” than the process for the Title VII discrimination claims, the court noted that it was also “more vituperative” and that the EEOC’s approach to the process “reek[ed] of using [its] proposed agreement as a ‘weapon to force settlement.’” After the EEOC sent Bloomberg a letter of determination, Bloomberg counter proposed, stating that many of the EEOC’s proposals were “acceptable,” but that Bloomberg was “not in a position” to offer monetary relief to the individual plaintiffs. Bloomberg requested additional information about the EEOC’s determinations and additional time to investigate the merits of the claims. Bloomberg likewise stated that it was “not in a position” to create a class fund, but that it sought “further discussion” on the matter. The EEOC in turn responded that it would not engage in discussions until Bloomberg responded to the EEOC’s monetary requests, and additionally stated that Bloomberg’s request for information was “unnecessary” (and claimed that such information was protected by the deliberative process privilege). These were the “battle lines [that] were drawn,” and after a five month “vociferous letter-writing campaign” that “merely traded jib for jab” and one fruitless meeting, the EEOC declared that the conciliation had been unsuccessful.

The court reasoned that the vague information the EEOC offered about its retaliation claims was “insufficient for Bloomberg to be able to formulate a reasonable monetary counteroffer” to the EEOC’s demand of over $41 million. “In a complex case like this one, the EEOC cannot, when the employer reasonably asks for information to formulate a monetary counteroffer, make substantial monetary demands and require employers simply to pony up or face a lawsuit.” The court recognized the EEOC’s discretion in framing the conciliation negotiations, but rejected the agency’s focus on Bloomberg’s failure to provide a monetary offer “to the exclusion of other considerations.” Rather than “stonewall[ing],” the court stated that, even though the “EEOC need not prove its charges ‘to the employer’s satisfaction,’” the EEOC “should have done something in response to Bloomberg’s reasonable entreaties.”

The court was persuaded, through the parties’ “non-effort to conciliate” and “their more recent conduct of the litigation,” that further attempts at conciliation would be “futile.” Therefore, the court, citing to a handful of cases from different jurisdictions, disregarded the ordinary remedy—a stay to allow conciliation—and instead dismissed the retaliation claims for EEOC’s failure to conciliate in good faith.

In contrast, the court determined that the EEOC’s conciliation process for its discrimination claims was adequate. The court described Bloomberg’s position in that process as “effectively a demurrer;” Bloomberg “denied that its policies and practices violated the law,” “offered less than one percent of the amounts the EEOC requested” for the individual parties, and “essentially refused to discuss class-type relief at all.” Accordingly, the court held that the EEOC reasonably perceived that the parties’ differences were irreconcilable and that further negotiations would be futile.

Bloomberg also moved for summary judgment on grounds that the EEOC failed to adequately investigate the charges or to provide Bloomberg with adequate notice of the charges to allow for sufficient conciliation. Both arguments failed.

The court granted summary judgment to Bloomberg on the basis that some of the EEOC’s claims were time-barred. Of potential interest is the court’s decision that the charge-filing period under section 706, incorporated into section 707 by reference, was applicable to section 707 “pattern or practice” claims at least where, as in Bloomberg’s case, the “pattern or practice” claim involves allegations of “discrete discriminatory acts.” These cases are distinguishable from cases where courts have viewed pattern or practice charges as “inherently different” from individual charges because they lack an identifiable “single discriminatory event to which the charge-filing period can be tied.” Finally, the court also granted summary judgment to claims that were time barred under section 706’s charge-filing period, refusing to apply, as the EEOC urged, the “continuing violation” doctrine as an exception to the timely filing requirement.

About November 2010

This page contains all entries posted to Labor & Employment N.Y. ("LENY") in November 2010. They are listed from oldest to newest.

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