Opinion
Case No. CV 06-01963 DDP (PLAx).
July 14, 2006
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR EEOC'S FAILURE TO CONCILIATE
This matter is before the Court on the defendant's motion to dismiss for failure to conciliate in good faith. After reviewing the parties' submissions, the Court denies the motion.
I. BACKGROUND
The United States Equal Employment Opportunity Commission (the "EEOC") brings suit against Lawry's Restaurants, Inc., d/b/a Lawry's The Prime Rib, Five Crowns, and Tam O'Shanter Inn (collectively "Lawry's") on behalf of Brandon Little and similarly situated males. The EEOC alleges that Lawry's engaged in a pattern or practice of refusing to hire men as servers in its restaurants nation-wide in violation of Title VII, 42 U.S.C. § 2000e-2(a) (1) and -6.
II. DISCUSSION
A. Legal Standard
The EEOC must conduct an investigation when an individual files charges of employment discrimination. If the EEOC determines that reasonable cause exists to believe that the charge is true, it "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). The EEOC may bring suit against the employer if it is unable to obtain a conciliation agreement that it deems acceptable. 42 U.S.C. § 2000e-5(f) (1). Genuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent that the EEOC must satisfy before it may bring suit. EEOC v. Pierce Packing Co., 669 F.2d 605, 607 (9th Cir. 1982).
B. Analysis
Lawry's argues that the Court should dismiss this action because the EEOC did not conciliate in good faith in violation of the statutory requirements. (Mot. 1.)
On August 26, 2003, the EEOC issued a determination letter stating that there was reasonable cause to believe that Lawry's had discriminated against Little and a class of similarly situated males. (Lindsey Decl. Ex. 3.) The EEOC invited Lawry's to participate in settlement discussions. On May 6, 2004, the EEOC sent Lawry's a conciliation proposal detailing the monetary and non-monetary relief that it was seeking from the company. (Id., Ex. 4.) On August 18, 2004, Lawry's sent the EEOC a counterproposal that contained no offer of monetary relief. (Karen Decl., Ex. 4.) Lawry's also proposed that the class definition exclude bussers. The parties met and discussed the counterproposal, and on October 4, 2004, Lawry's sent the EEOC another proposal. (Lindsey Decl., Ex. 5.) The new proposal contained an offer of monetary relief but the figure was significantly less than the amount initially proposed by the EEOC. Further, Lawry's still sought to exclude bussers from the class definition. Over the next five months, the parties engaged in discussions and exchanged letters in an attempt to settle the matter. On March 28, 2005, the EEOC sent Lawry's another counterproposal, and Lawry's responded with a letter dated April 12, 2005, in which it rejected the new offer. (Karen Decl., Exs. F, G.)
After more than one year of conciliation negotiations, the parties remained far apart on many issues, including the amount of damages for the class and for Little. Accordingly, on July 19, 2005, the EEOC informed Lawry's that further settlement efforts would be futile and that conciliation had failed. (Id., Ex. L.)
The Fifth and Eleventh Circuits have held that the district court must examine the substance of the parties' negotiations in determining whether the EEOC has complied with its duty to conciliate. Specifically, the district court must determine whether the EEOC acted reasonably during the conciliation process. EEOC v. Asplundh Tree Expert Co., 340 F. 3d 1256, 1259 (11th Cir. 2003); EEOC v. Klinger Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981). However, several other circuits have adopted a more preferable approach. These courts have held that the EEOC satisfies the conciliation condition in § 2000e-5(b) if it provides the employer an opportunity to confront all the issues.EEOC v. Delight Wholesale Co., 973 F.2d 664, 669 (8th Cir. 1992); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101-02 (6th Cir. 1984) ("The EEOC is under no duty to attempt further conciliation after an employer rejects its offer."); EEOC v. St. Anne's Hosp., 664 F.2d 128, 131 (7th Cir. 1981); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978). Under this approach, the district court does not examine the substance of the parties' negotiations.
The Ninth Circuit has not considered this issue. However, district courts within the Ninth Circuit have adopted the majority approach and have held that the district court should focus on whether the EEOC provided the employer with an opportunity to confront all the issues. See, e.g., EEOC v. Canadian Indemnity Co., 407 F. Supp. 1366, 1367 (C.D. Cal. 1976). This approach comports with the statutory language in Title VII, which gives the EEOC discretion in determining whether a conciliation agreement is acceptable. See 42 U.S.C. § 2000e-5(f) (1). Consequently, the Court considers whether the EEOC provided Lawry's with an opportunity to address and resolve the issues in this lawsuit prior to the EEOC filing suit.
Lawry's argues that EEOC did not negotiate in good faith by, among other things, conditioning conciliation of the class claims on successful settlement of Little's claims. (Mot. 13-16.) However, Lawry's does not deny that it and the EEOC spent several months attempting to resolve the issues raised in this lawsuit prior to the EEOC initiating litigation. Given the efforts to settle this matter, the EEOC has fulfilled its duty of engaging in reconciliation prior to filing suit. Further, it is unnecessary to stay the proceedings pending further conciliation efforts because the parties have reached an impasse on a variety of issues and additional settlement discussions would be futile.
III. CONCLUSION
The Court denies the defendant's motion.
IT IS SO ORDERED.