Equal Employment Opportunity Commission v. State of New Mexico Department of Corrections

Second MOTION for Summary Judgment

D.N.M.May 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, No. 1:15-cv-00879-KG-KK Plaintiff, vs. STATE OF NEW MEXICO, DEPARTMENT OF CORRECTIONS, Defendant. PLAINTIFF EEOC’S PARTIAL MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56, Federal Rules of Civil Procedure and D.N.M.LR-Civ. 56.1, Plaintiff Equal Employment Opportunity Commission (“EEOC” or “Commission”), moves this Court for entry of a partial summary judgment and finding as matter of law that (1) the EEOC fulfilled all of its prelitigation requirements as to Charging Parties Henderson, Tenorio and the class of other aggrieved individuals; (2) a suit brought by the EEOC under the ADEA is not subject to a statute of limitations; and (3) the EEOC’s claims are not cut off as of the date of the EEOC’s determination letters. Pursuant to D.N.M.LR-Civ. 7.1, EEOC’s counsel conferred with NMCD’s counsel and this motion is opposed. This motion is supported by the Memorandum in Support of this motion and authorities cited therein and the Declaration of Amy Burkholder. For all of the reasons articulated in the Memorandum in Support of this motion, Plaintiff EEOC respectfully requests that the Court Case 1:15-cv-00879-KG-KK Document 220 Filed 05/30/17 Page 1 of 3 2 enter an Order granting summary judgment in favor of the EEOC as to NMCD’s First, Second, Third, Fourth, Eighth, Ninth, Tenth, and Eleventh Affirmative Defenses. DATED: May 30, 17 Electronically Filed /s/ Michael Baskind Michael Baskind Trial Attorney Telephone: (602) 640-5003 E-Mail: michael.baskind@eeoc.gov EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 N. Central Ave.Suite 609 Phoenix, AZ 85012 Wasan Awad Trial Attorney Gina Carrillo Trial Attorney Attorneys for Plaintiff EEOC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 30, 17, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Ellen S. Casey Jaclyn M. McLean HINKLE SHANOR LLC P.O. Box 2068 Santa Fe, NM 87504-2068 Telephone: 505-982-4554 Facsimile: 505-982-8623 Email: ecasey@hinklelawfirm.com jmclean@hinklelawfirm.com Case 1:15-cv-00879-KG-KK Document 220 Filed 05/30/17 Page 2 of 3 3 mgordon@hinklelawfirm.com Chelsea R. Green P.O. Box 10 Roswell, NM 88202 (575) 622-6510 cgreen@hinklelawfirm.com Attorneys for Defendant /s/ Michael Baskind Case 1:15-cv-00879-KG-KK Document 220 Filed 05/30/17 Page 3 of 3 -1- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, No. 1:15-cv-00879-SCY/KK Plaintiff v. STATE OF NEW MEXICO, DEPARTMENT OF CORRECTIONS, Defendant. PLAINTIFF EEOC’S MEMORANDUM IN SUPPORT OF ITS PARTIAL MOTION FOR SUMMARY JUDGMENT Defendant’s Answer asserts seven defenses claiming that the prerequisites to filing suit under the Age Discrimination in Employment Act (“ADEA”) have not been met. Dkt. No. 46, pp. 14-16 (Defense Nos. 1, 2, 3, 4, 8, 9, and 11). Based on undisputed documentary evidence, and the applicable legal standards, the EEOC is entitled to judgment as a matter of law that all prerequisites to suit were met in this case. Additionally, because no statute of limitations applies to the EEOC’s lawsuit, the EEOC should be granted summary judgment on Defendant’s statute of limitation defense. Doc. 46, p. 15 (Defense No. 10). EEOC also seeks judgment as a matter of law that the EEOC’s claims do not end as of the date of its determination letters. I. PROCEDURAL BACKGROUND On February 10, 2016, the EEOC filed for partial summary judgment on the same issues raised in this motion. See Dkt. No. 26. On March 14, 2016, NMCD filed for Fed.R.Civ.P. 56(d) Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 1 of 25 -2- relief in response to the EEOC’s motion. See Dkt. No. 41. On August 10, 2016, the Court granted NMCD’s request for Rule 56(d) relief and denied the EEOC’s motion “without prejudice to Plaintiff re-filing it after the close of Phase I discovery.” See Dkt. 108. Phase I discovery closed on April 28, 2017, see Dkt. No. 162, and under the Court’s scheduling order, Phase I dispositive motions are due thirty days after the close of Phase I discovery. See Dkt. Nos. 25 and 162. II. PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS A. Charges of discrimination and notice of charges. 1. NMCD admits it received notice of the charges of discrimination filed by Richard Henderson and Robert Tenorio, alleging violations of the ADEA by NMCD. Answer [Dkt. No. 46] at ¶ 6-7 admitting ¶ 6-7 of EEOC’s Complaint [Dkt. No. 42]. B. EEOC investigation of the charges. 2. The EEOC’s various investigative efforts are reflected in the documents included in the investigative file, including (a) conducting on site interviews on May 11, 2011, at the NMCD prison facility in Los Lunas; (b) soliciting position statements from NMCD in response to the Henderson and Tenorio charges; (c) issuing several requests for information to NMCD; (d) serving an administrative subpoena when NMCD failed to provide some of the requested information; (e) reviewing information and records NMCD provided in response to some of the EEOC’s information requests; and (f) interviewing over 25 witnesses from multiple NMCD facilities. [Burkholder Dec., ¶4 (a)-(b)]. 3. During its investigation of the Henderson and Tenorio charges of discrimination, the EEOC informed Defendant by letter dated May 24, 2012 (“expansion letter”) that it was Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 2 of 25 -3- expanding its investigation to encompass potential age discrimination against a class of individuals throughout the entire State of New Mexico. [Id., ¶4(c),]. 4. The EEOC conducted a statewide investigation into alleged age discrimination at NMCD’s facilities. [Id. ¶ 4 (c)- (i)]. 5. After the expansion letter was issued, the EEOC requested that NMCD provide it with a “complete and accurate employee list… of all New Mexico Corrections Department employees since January 1, 2010.” [Id. at ¶4 (d)]. 6. NMCD provided names and contact information for its employees statewide on June 21, 2013. [Id. at ¶4 (e)]. 7. The EEOC sent correspondence via e-mail and mail to employees on the provided employee roster to determine if other NMCD employees across New Mexico had been denied employment opportunities at NMCD because of age (40 or older). [Id. at ¶4 (f )]. 8. The EEOC’s investigation found age discrimination occurring in at least five NMCD facilities, including Central New Mexico Correctional Facility in Los Lunes, New Mexico (“CNMCF”), the Penitentiary of New Mexico in Santa Fe, New Mexico, Southern New Mexico Correction Facility in Las Cruces, New Mexico, Springer Correction Facility in Springer, New Mexico, and Rio Rancho Probation and Parole facility in Rio Rancho, New Mexico. [Id.at ¶4 (g)]. 9. The EEOC’s investigation revealed that Anthony Romero – the Warden at CNMCF who was an alleged discriminatory official in the Henderson and Tenorio charges – was promoted to Director, overseeing wardens at all of NMCD’s facilities. [Id. at ¶4 (h)]. Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 3 of 25 -4- C. EEOC letters of determination and conciliation efforts. 10. On September 26, 2013, the EEOC issued determination letters to Defendant regarding the Henderson and Tenorio Charges. [Id. at ¶4 (j)-(k)]. The determination letters informed Defendant that the EEOC investigations led it to determine: . . . that there is reasonable cause to believe that Respondent violated the ADEA by discriminating against the Charging Party and other aggrieved individuals by refusing to hire and/or promote those individuals because of their age… by discriminating against Charging Party and other aggrieved individuals with respect to their terms, conditions, or privileges of employment, including but not limited to creating and/or fostering a hostile work environment, subjecting individuals to discipline because of their age, terminating older individuals’ employment, and/or forcing older individuals to resign and/or retire. [Id.] In addition, the determination letters informed Defendant that the EEOC found reasonable cause to believe that NMCD: . . . violated the ADEA by discriminating against Charging Party and other aggrieved individuals for opposing employment practices made unlawful under the ADEA, including but not limited to subjecting the individuals to discipline, refusing to hire and/or promote the individuals, subjecting the individuals to less favorable working conditions, and creating and/or fostering a hostile work environment for individuals who opposed unlawful employment practices. [Id.] And finally, the determination letters invited NMCD to participate in informal conciliation discussions with the EEOC to informally resolve the charges of discrimination. [Id.] 11. After inviting Defendant to participate in the informal conciliation process via the Henderson and Tenorio Letters of Determination, the EEOC sent Defendant an initial conciliation proposal. [Id. at ¶4 (l)]. 12. In response to the EEOC’s initial conciliation proposal, which specifically sought relief for the charging parties and other aggrieved individuals, Defendant requested clarification on a number of issues, including information regarding the additional identified aggrieved Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 4 of 25 -5- individuals for whom the EEOC was seeking relief. [Id. at ¶ 4 (m)]. 13. On or about July 1, 2014, the EEOC provided Defendant additional information about its proposal and the non-charging party aggrieved individuals. [Id. at ¶ 4 (n)] 14. On or about July 14, 2014, after receiving additional information from the EEOC, Defendant declined to participate in conciliation. [Id., ¶5(j), Ex. 7]. 15. On or about July 23, 2014, the EEOC issued notices to Defendant stating that conciliation efforts had been unsuccessful and the EEOC had determined that further conciliation efforts would be futile or non-productive. [Id. at ¶4 (o)]. 16. Upon further review of the files, the EEOC reopened conciliation on or about September 26, 2014 and sent Defendant a revised conciliation proposal relating to the findings in the Henderson and Tenorio determination letters. [Id. at ¶ 4(q)]. 17. On October 7, 2014, NMCD sent the EEOC a letter indicating that it declined to participate in conciliation. [Id. at ¶ 4(r)]. 18. On October 9 and 29, 2014, the EEOC notified Defendant that conciliation efforts had been unsuccessful and that the EEOC determined further conciliation efforts would be futile or non-productive. [Id. at ¶ 4(t)]. 19. Defendant admits that the Commission and Defendant were unable to reach an agreement acceptable to the Commission through the conciliation process. Answer [Dkt. No. 46, ¶12 admitting ¶12 of EEOC’s Complaint [Doc. 42]. 20. Defendant admits that it was aware that the EEOC’s investigation and determinations covered all of NMCD’s facilities in New Mexico and individuals not identified to NMCD during the investigation or conciliation. See 30(b)(6) deposition, , attached as Exhibit 2, 22:20-23:16; Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 5 of 25 -6- 51:1-51:20. D. EEOC lawsuit and NMCD’s answer. 21. The EEOC filed the lawsuit on September 30, 2015, alleging NMCD had violated the ADEA by engaging in various unlawful employment practices that denied employment opportunities to a class of employees age 40 and older. [Dkt. No. 1]. 1 22. In its answer, Defendant asserted seven defenses related to the EEOC’s prerequisites to suit: a. First, Second and Third Affirmative Defense: The EEOC’s claims on behalf of Henderson, Tenorio and Martinez are barred by the EEOC’s “failure to appropriately engage in the conciliation process with regard to [all three of their claims] and EEOC’s claims on [their] behalf.” [Dkt. No. 46 at 14]. b. Fourth Affirmative Defense: “EEOC’s claims on behalf of unidentified other aggrieved individuals are barred by EEOC’s failure to appropriately engage in the conciliation process with regard to these other aggrieved individuals’ claims and EEOC’s claims on his behalf.” [Id.]. c. Eighth Affirmative Defense: “EEOC’s discrimination and retaliation claims on behalf of Henderson, Tenorio, Martinez and other aggrieved individuals are barred by the EEOC’s failure to engage in the conciliation process as required by 29 U.S.C. § 626(d) and 29 C.F.R. § 1626.12.” [Id. at 15]. d. Ninth Affirmative Defense: “The EEOC’s claims on behalf of Henderson, 1 The EEOC filed an amended complaint in order to properly name the Defendant. See Dkt. No. 42. The original and amended complaints are identical in substance. Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 6 of 25 -7- Tenorio, Martinez and other aggrieved individuals are barred by these identified and unidentified individual’s failures to fully exhaust the administrative process.” [Id.] e. Eleventh Affirmative Defense: “EEOC’s claims on behalf of Henderson, Tenorio, Martinez and other aggrieved individuals are barred by the EEOC’s failure to follow required procedures, including but not limited to, issuing letters of determination finding reasonable grounds to believe that a violation had occurred.” [Id. at 15-16]. 23. In its answer, Defendant asserts that the EEOC’s claims should be barred because it failed to comply with applicable statutes of limitations. [Id. at 15]. III. ARGUMENT A. Legal standard of review. Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is considered material if it is essential to the proper disposition of a claim or defense. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of fact is genuine if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Id. (citing Anderson, 477 U.S. at 248). B. The EEOC is entitled to summary judgment on NMCD’s affirmative defense Nos. 1, 2, 3, 4, 8, 9, 10 and 11. The EEOC seeks summary judgment on three groups of affirmative defenses. First, the Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 7 of 25 -8- EEOC seeks summary judgment on Defendant’s First, Second, Third, Fourth, Eighth, and Eleventh Affirmative Defenses all, in one way or another, attack the EEOC’s prelitigation obligations as to the Charging Parties or the class of aggrieved individuals. The EEOC also seeks summary judgment on Defendant’s Ninth Affirmative Defense that the EEOC’s claims are barred because the Charging Parties and other aggrieved individuals did not fully exhaust the administrative process. And the EEOC seeks summary judgment on NMCD’s tenth affirmative defense that asserts that the EEOC’s claims are barred because it did not file its lawsuit within the applicable statute of limitations. . 1. The law on the EEOC’s prelitigation requirements under the ADEA. Under the ADEA, before filing a lawsuit, the EEOC must: (1) provide notice of a charge of discrimination, if a charge is filed; and (2) “attempt to eliminate the discriminatory practice or practices alleged… through informal methods of conciliation, conference, and persuasion.” 29 U.S.C.A. § 626(d)(1-2). The conciliation requirement has two components: (a) notice to“the employer about the specific allegation” by describing “what the employer has done and which employees (or what class of employees) have suffered as a result; and (b) and whether the EEOC has tried to engage “the employer in some form of discussion (whether written or oral)” to enable the employer to remedy the allegedly discriminatory practice. Id. at 1656. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1653, 191 L. Ed. 2d 607 (2015). Notably, the EEOC’s prelitigation requirements under the ADEA differ from its prelitigation requirements under other statutes it enforces, including Title VII. For example, under Title VII a charge of discrimination is generally a prerequisite for the EEOC to file suit. 42 U.S.C. § 2000e-5(f)(1). But the Supreme Court has held that under the ADEA, the EEOC’s Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 8 of 25 -9- “role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA ‘from any source,’ and it has independent authority to investigate age discrimination.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, (1991) (citing 29 CFR §§ 1626.4, 1626.13). Thus, a charge of discrimination is not a prerequisite for the EEOC to sue under the ADEA. If a charge of discrimination is filed, however, the ADEA requires that the EEOC “promptly notify all persons named in such charge as prospective defendants in the action . . .” 29 U.S.C. § 626(d)(2); see also 29 C.F.R. § 1626.11 (tracking statutory language requiring the EEOC to “notify the [employer] that a charge has been filed.”). Thus, notice that a charge was filed is a prerequisite, even though the charge itself is not. Similarly, an EEOC investigation is not a prerequisite under the ADEA, although it is a prerequisite under Title VII. 42 U.S.C. § 2000e-5(b). Investigation is permissive under the ADEA which provides that the EEOC “shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of th[e] [ADEA].” 29 U.S.C. § 626(a). Nor do the regulations promulgated pursuant to the ADEA impose on the Commission a duty to investigate. See 29 C.F.R. § 1626.4 (“The Commission may, on its own initiative, conduct investigations of employers . . .”) (emphasis added). The permissive language in the ADEA is in striking contrast to the mandatory language of Title VII: “[w]henever a charge is filed . . . the Commission . . . shall make an investigation thereof.” 42 U.S.C. § 2000e-5(b) (emphasis added). Thus, the ADEA grants the EEOC “the power to make investigations,” but it does not require it to do so. Despite what Defendant says, then, the ADEA does not require the EEOC to conduct an investigation. Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 9 of 25 -10- The ADEA does require conciliation. The ADEA states that “the Commission . . . shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” 29 U.S.C. §626(d)(2). This mandatory language of the ADEA parallels the mandatory language of Title VII: “. . . the Commission 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). In Mach Mining, LLC v. EEOC, the Supreme Court addressed the EEOC’s conciliation obligations under Title VII of the Civil Rights Act of 1964, holding that the statute affords only “limited review” of the EEOC’s conciliation efforts. Mach Mining, 135 S. Ct. at 1653. 2 The Supreme Court held that courts are not to conduct a “deep dive” into the EEOC’s conciliation efforts. Id. Rather, a court’s “relatively barebones review” of the EEOC’s conciliation efforts should focus narrowly on whether the EEOC notified “the employer about the specific allegation” by describing “what the employer has done and which employees (or what class of employees) have suffered as a result,” and whether the EEOC has tried to engage “the employer in some form of discussion (whether written or oral)” to enable the employer to remedy the allegedly discriminatory practice. Id. at 1656. “A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.” Id. “Should the employer present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating 2 The courts considering the EEOC’s similar conciliation obligations under the ADEA have held that the Mach Mining analysis applies equally to the ADEA. EEOC v. Blinded Veterans Ass'n, 128 F. Supp. 3d 33, 42 (D.D.C. 2015); EEOC v. AZ Metro Distributors, LLC, 15-CV-05370 (E.D.N.Y. Jan. 20, 2016). Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 10 of 25 -11- the claim, a court must conduct the fact-finding necessary to resolve that limited dispute.” Id. at 1656. Significantly, the Court held that if the EEOC’s conciliation efforts fall short, “the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.” Id. Courts interpreting Mach Mining have nearly universally rejected defendant arguments that the EEOC failed to meet its conciliation obligations. One court held that the defendant “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.” EEOC v. Lawler Foods, Inc., 2015 WL 8457816 *3 (S.D. Tex. Dec. 4, 2015). The court went on to say that 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 offer.” Id; see also EEOC v. King-Lar Co., Case No. 15-cv-3238(C.D. Ill., Dec. 7, 2015) (rejecting defendant’s argument that the EEOC is required to disclose specific details about the alleged discrimination in order to meet its conciliation obligation.)(unpublished decision attached as Ex. 3, pp. 8-10). Mach Mining and its progeny are nothing new for the Tenth Circuit. Prior to Mach Mining, the Tenth Circuit held that district courts are not to “examine the details of the offers and counteroffers between the parties, nor impose its notions of what the agreement should provide” when considering whether the EEOC has met its conciliation obligations. EEOC v. The Zia Co., 582 F.2d 527, 533 (10th Cir. 1978). Furthermore, the Tenth Circuit held that “when the EEOC initially makes a sufficient albeit limited effort to conciliate, the minimal jurisdictional requirement of the Act is satisfied and the action is therefore properly before the court.” EEOC Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 11 of 25 -12- v. Prudential Fed. Sav. & Loan Assn, 763 F.2d 1166 1169 (10th Cir. 1985). Similarly, Mach Mining did not alter the Tenth Circuit’s holdings that if there has been any attempt to conciliate, an action cannot be dismissed for failure to attempt to conciliate. Zia Co., 582 F.2d at 533. If the Commission’s conciliation efforts are found inadequate, the remedy is to stay the litigation and order the parties back to negotiations. 42 U.S.C. § 2000e–5(f)(1) (“[u]pon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending ... further efforts of the Commission to obtain voluntary compliance”); see also Zia Co., 582 F.2d at 533 (staying the proceedings, not dismissing the case, is the proper remedy if a court determines the EEOC did not meet its conciliation obligations); Marshal v. Sun Oil Co., 592 F. 2d. 563, 566-67 (10th Cir. 1979) (applying Zia’s holding that staying proceedings, not dismissing the case, is the proper remedy in an ADEA case). 2. The EEOC has met each of the prerequisites to an EEOC lawsuit under the ADEA as to the Charging Parties and the other aggrieved individuals. a. It is undisputed that the EEOC provided notice of the Henderson and Tenorio charges to NMCD. Because charges of discrimination were filed against NCMD alleging violation of the ADEA, the EEOC was required to provide prompt notice to NMCD of those charges. 29 U.S.C.A. § 626(d)(2). It is undisputed that the EEOC provided NMCD with notice of these charges. [PSF 1]. Thus, there is no genuine dispute of material fact that the EEOC met its obligation to provide NMCD notice of the Tenorio and Henderson charges of discrimination. b. The EEOC met its conciliation obligations. In this case, the EEOC has complied with the Mach Mining standard and with long- standing Tenth Circuit jurisprudence. The EEOC’s determination letters are sufficient notice Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 12 of 25 -13- under Mach Mining because they provided notice to NMCD that the EEOC found three class- wide violations: age discrimination in selection and promotion decisions; age discrimination in terms, conditions, and privileges of employment; and retaliation for protected activity relating to age discrimination. [PSF 11]. The determination letters also advised Defendant of the class of individuals affected – individuals age 40 and over. [PSF 11]. Together, these two pieces of information provide Defendant with notice as to what it did wrong and what class of employees were affected. That is all Mach Mining requires as to notice. Additionally, as conceded by NMCD’s Rule 30(b)(6) designee, the Defendant also knew the geographic scope of the class was statewide. [PSF 21]. NMCD also had notice of the statewide scope from the EEOC’s expansion letter, and the subsequent state-wide investigation. [PSF 3-7]. The expansion letter unambiguously notified NMCD of the statewide scope. [PSF 4]. Thereafter, the EEOC requested, and NMCD provided, statewide employee data that the EEOC used to contact employees statewide. [PSF 5-7]. Thus, the EEOC’s expansion letter and statewide investigation, combined with the determination letters explicitly stating that the reasonable cause findings apply to a class of “other aggrieved individuals” provide ample notice under Mach Mining that the EEOC found age discriminatory practices affecting a statewide class of individuals age 40 and older throughout NMCD. After issuing its determination letters, the EEOC then attempted to engage NMCD in conciliation discussions by (a) inviting NMCD to participate in conciliation [PSF 11-17]; (b) sending conciliation proposals to NMCD [PSF 12, 17]; and (c) providing additional information in response to NMCD’s request for clarification [PSF 14]. These efforts are more than adequate under Mach Mining and Prudential. They provided Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 13 of 25 -14- NMCD notice of the violations and the scope of the class, and they afforded NMCD an opportunity to discuss a resolution. Accordingly, the Court should hold as a matter of law that the EEOC met its statutory obligation to conciliate as to Henderson, Tenorio and the class of aggrieved individuals and grant summary judgment in favor of the EEOC to the extent NMCD’s First, Second, Third, Fourth, Eighth and Eleventh Affirmative Defenses argue otherwise. 3. NMCD erroneously attempts to impose extra prelitigation requirements on the EEOC as to the class of other aggrieved individuals. Defendant’s Fourth, Eighth, Ninth and Eleventh Affirmative Defenses all challenge the sufficiency of the EEOC’s prelitigation requirements as to the class of other aggrieved individuals, as specified in the Complaint. Specifically, Defendant argues that the EEOC is not entitled to seek relief on behalf of other aggrieved individuals because (a) the EEOC must did not conciliate on behalf of each of the other aggrieved individuals; (b) the EEOC must conduct an investigation into the specific allegations of the other aggrieved individuals; (c) the EEOC did not issue letters of determination for the Henderson and Tenorio charges of discrimination; and (d) the other aggrieved individuals did not file charges or fully exhaust the administrative process, as necessary for them to sue on their own. See Dkt. No.10, Joint Status Report at p. 11; Dkt. No. 46, pp. 14-16 (Defense Nos. 4, 8, 9, and 11). All of these arguments are meritless. a. The EEOC is not required to investigate the specific allegations and individually conciliate regarding every individual in the class. The EEOC is not required to conciliate on an individual basis for each person for whom it seeks relief in subsequent litigation. See Mach Mining, 135 S. Ct. at 1656; St. Louis-San Francisco Ry., 743 F.2d at 743 (the EEOC can identify additional aggrieved individuals through discovery after filing suit); Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1199-1200 Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 14 of 25 -15- (9th Cir. 2016) (The EEOC may identify additional aggrieved individuals after filing suit); EEOC v. Bass Pro Outdoor World, L.L.C., 826 F.3d 791, 805 (5th Cir. 2016) (agreeing with the Geo court when holding that the EEOC does not need to conciliate on an individual basis for each aggrieved person subsequently identified in the litigation.); EEOC v. Rhone–Poulenc, Inc., 876 F.2d 16, 17 (holding that the EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant) (citation omitted); Equal Employment Opportunity Comm'n v. W. Distrib. Co., 218 F. Supp. 3d 1231 (D. Colo. 2016) (holding that Mach Mining makes clear that the EEOC does not have to identify every aggrieved individual during conciliation). Rather, the EEOC meets its conciliation requirements for a class of aggrieved individuals if it conciliates “on behalf of an identified class of individuals prior to bringing suit.” See Geo Grp., 816 F.3d at 1199-1200. Defendant’s argument is based on an Eighth Circuit decision in EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012). Notably, the two circuit courts that have ruled on the EEOC’s conciliation obligations when seeking class relief after Mach Mining have held that CRST was overruled by Mach Mining. See Geo Grp., 816 F.3d, 1200, n. 5 (noting that the district court’s reliance on the Eighth Circuit’s holding in CRST was of no consequence in light of the Court’s holding in Mach Mining); see also Bass Pro, 826 F.3d at 804-05 (“the CRST court engaged in precisely the kind of ‘deep-dive’ the Court prohibited in Mach Mining”). Moreover, even before Mach Mining, CRST was contrary to long-settled authority in the Tenth Circuit. St. Louis-San Francisco Ry., 743 F.2d at 743. In St.Louis Railway, the EEOC challenged a discriminatory height requirement, which disproportionately precluded women from being hired for the switchman/brakeman position. Id. at 741. The trial court held that the Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 15 of 25 -16- EEOC could only seek relief for the one named charging party and precluded the EEOC from identifying additional victims during discovery. Id. at 741, 744. The Tenth Circuit reversed, holding that the trial court improperly “cut the EEOC off from its investigative function by preventing the EEOC from discovering other possible victims of the company’s discriminatory height requirement.” Id. at 744. Obviously, any such additional victims located during the litigation as provided in St. Louis RR are necessarily people whose individual circumstances were not known or investigated during the EEOC’s investigation, and were not known or discussed during the conciliation. Thus, the long-standing rule in the Tenth Circuit is directly contrary to what Defendant urges. b. The EEOC’s determination letters for the Henderson and Tenorio charges of discrimination included determinations for other aggrieved individuals. While not a prerequisite to suit under the ADEA, at the conclusion of its investigation, the EEOC sent NMCD determination letters for the Henderson and Tenorio charges. [PSF 11]. Henderson filed charge no. 543-2010-01360 [Dkt. No. 26-003, p. 2]. The EEOC sent NMCD a determination letter dated September 26, 2013, which specifically identifies the same charge number and details the EEOC’s determination as to the charge. [Dkt. No. 26-003, p. 15-16]. Tenorio filed charge nos. 543-2011-00991 and 39b-2011-00158. [Dkt. No. 26-003, pp. 4-5]. The EEOC sent NMCD a determination letter dated September 26, 2013, which specifically identifies the same charge numbers and details the EEOC’s determination as to the charges. [Dkt. No. 26- 003, pp. 12-13]. Moreover, as discussed in detail above, the determination letters explicitly state that the reasonable cause findings apply to a class of other aggrieved individuals. Thus, NMCD’s argument that the EEOC failed to issue determinations for the Henderson and Tenorio charges of Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 16 of 25 -17- discrimination on which this lawsuit is based is false. c. The EEOC may seek relief for individuals who have not filed charges of discrimination or exhausted the related administrative process. In its Ninth Affirmative Defense, Defendant asserts that the EEOC cannot seek relief on behalf of other aggrieved individuals because those individuals did not themselves file charges of discrimination and fully exhaust the administrative process. We address these two issues together because filing a charge of discrimination is how an individual initiates the administrative process, and exhaustion of the administrative process otherwise requires only that the individual wait at least sixty days before filing suit. 29 U.S.C. §626(d)(1). Thus, the administrative process relates entirely to the charge of discrimination. The law is well-settled, however, that the EEOC may seek relief for individuals who have not themselves filed charges as necessary to meet the prerequisites for them to sue on their own. Catholic Healthcare W., 530 F. Supp. 2d at 1107. (“The EEOC may… seek relief for… any other employees who may have been affected by Defendant’s discriminatory policy even though they have not complied with the requirements necessary to bring private actions on their own.”); Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 333-334 (1980) (authorizing the EEOC to seek relief for a class of individuals without Rule 23 certification). As the Tenth Circuit recognized, “Congress has focused in the EEOC the power to investigate and bring actions aimed at seeking a remedy on behalf of all affected persons.” St.Louis San Francisco Ry. Co., 743 F.2d at743-44; see also EEOC v. UPS, 860 F.2d 372, 374-75 (10th Cir. 1988) (although charge-filer settled, EEOC was entitled to pursue action on behalf of other individuals who may have been or will be aggrieved); EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir.1979) (per curiam) (the EEOC Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 17 of 25 -18- has the power to investigate “a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge.”) Thus, NMCD’s assertion that the EEOC cannot seek relief for anyone who did not file a charge or meet the prerequisites to sue on their own, is wrong as a matter of law. 4. Investigations are not required under the ADEA, but here the EEOC conducted a statewide investigation. Because an EEOC investigation is not required under the ADEA, there is no statutory standard by which to evaluate the sufficiency of EEOC’s ADEA investigations. But even under other statutes that the EEOC enforces, where investigations are statutorily mandated, federal courts have consistently held that “the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.” EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1100 (6 th Cir. 1984); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.2002) (quoting Keco); see also EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 674 (8th Cir.2012) (same); EEOC v. Sterling Jewelers Inc., 801 F.3d 96, 101 (2nd Cir. 2015) (courts may not review the sufficiency of an investigation, only whether an investigation occurred); AT&T Co. v. EEOC., 270 F.3d 973, 975 (DC Cir. 2001) (citation omitted) (concluding that the EEOC’s investigative conclusions are not judicially reviewable). Indeed, in the landmark Keco case, the Sixth Circuit held that “[i]t was error for the district court to inquire into the sufficiency of the Commission's investigation.” 748 F.2d at 1100. The District of New Mexico has similarly held that the sufficiency of the EEOC’s investigations are not subject to judicial review. See EEOC v. BOK Fin. Corp., 995 F. Supp. 2d 1251, 1253 (D. N.M. 2014) (“The adequacy of the EEOC investigation is non-justiciable as a matter of law,” (citing Keco Industries, Inc, 748 F.2d at Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 18 of 25 -19- 1100); see also, Mach Mining, 738 F.3d 171; and EEOC v. Caterpillar, Inc., 409 F.3d 831, 832- 22). Furthermore, the EEOC is not required to describe in detail every step it took or the evidence it uncovered during an investigation. See Sterling Jewelers, 801 F.3d at 101. An affidavit from the EEOC stating that it performed its investigative obligations and outlining the steps taken to investigate the charges, will usually suffice. Id. (citing EEOC v. Mach Mining, 135 S.Ct. 1645, 1656 (2015)). Accordingly, when analyzing whether the EEOC exhausted its administrative investigation prerequisite to suit as to a class-based action under Title VII and the ADA, where investigations are mandatory, the relevant inquiry in this jurisdiction is not whether the Commission investigated each putative class members’ injuries prior to litigation, but, rather, whether the Commission completed some investigation into the type of discrimination alleged. Here, the declaration of EEOC Phoenix District Office Director Elizabeth Cadle establishes that the EEOC’s investigative efforts included: (1) serving requests for information; (2) issuing an administrative subpoena; (3) obtaining information, records, and position statements from NMCD; (4) informing NMCD that it was expanding its investigation to encompass all of NMCD’s facilities in New Mexico; (5) requesting and receiving state wide information; (6) twice visiting the NMCD facility in Los Lunas; (7) interviewing over 25 witnesses during the course of the investigation; (8) identifying victims from multiple NMCD facilities; and (9) sending notice to all NMCD employees regarding the EEOC’s investigation and inviting them to contact them if they believed they were victims of age discrimination. [PSF 1-9]. These efforts demonstrate that the EEOC conducted an investigation into the Henderson and Tenorio allegations of age discrimination and that the investigation was statewide in scope. Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 19 of 25 -20- Because an investigation is not required under the ADEA, and, even if it was, the EEOC conducted a statewide investigation into the Henderson and Tenorio charges, the EEOC should be granted summary judgment on NMCD’s Defenses that challenge the adequacy of EEOC’s investigation. C. There is no statute of limitations for claims brought under the ADEA by the EEOC. The Supreme Court in Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 366 (1977), held that Title VII “imposes no limitation upon the power of the EEOC to file suit in federal court.” The Court determined that no provision in the statutory text “explicitly requires the EEOC to conclude its conciliation efforts and bring an enforcement suit within any maximum period of time,” id. at 360, and found “no suggestion” in the legislative history that Congress intended to impose a time limit on EEOC litigation. See id. at 361-66. The Court went on to hold that imposing a statute of limitations on suits brought by the EEOC would be inconsistent with the EEOC’s obligation “to refrain from commencing a civil action until it has discharged its administrative duties.” Id. at 359-372. Prompted by the difficulties that the EEOC was having in timely prosecuting age discrimination cases, Congress, in the Civil Rights Act of 1991, amended the ADEA to delete the incorporation of § 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255, which had prescribed a statute of limitations for ADEA claims. Compare 29 U.S.C. § 626(e) (superseded 1991) with 29 U.S.C.A. § 626(e), & Historical and Statutory Note on 1991 Amendment. In doing so, Congress imposed the same statute of limitations on claims brought by the EEOC under the ADEA as those claims brought by the EEOC under Title VII. See H.R. Rep. 102-40(I), 102d Cong., 1st Sess. 96-97, 114 (1991) (“House Labor Report”) (“ADEA’s limitations periods for filing charges Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 20 of 25 -21- and lawsuits are conformed to the limitations periods of Title VII.”) Since the passage of the Civil Rights Act of 1991, various courts have held that EEOC suits under the ADEA, like EEOC suits under Title VII, are not subject to any limitation period. See, e.g., Wilkerson v. Martin Marietta Corp., 875 F. Supp. 1456, 1459 (D. Colo. 1995) (relying on the legislative history in the Civil Rights Act of 1991 and Occidental to determine EEOC suits are not subject to a statute of limitations); EEOC. v. Lennar Homes of Arizona, Inc., No. CV-03-1827-PHX-DGC, 2005 WL 6788667, at *3 (D. Ariz. Oct. 3, 2005) (same); E.E.O.C. v. AT & T Co., 36 F. Supp. 2d 994, 997 (S.D. Ohio 1998) (same). Because no statute of limitations applies to ADEA actions brought by EEOC after the passing of the 1991 Civil Rights Act Amendments to the ADEA, Defendant can prove no set of facts to establish this defense and EEOC is entitled to judgment as a matter of law on this defense. Therefore, summary judgment should be entered in favor of the EEOC as to Defendant’s Tenth Affirmative Defense. D. The EEOC may seek relief for discriminatory actions that occurred after the date of the determination letters. During this litigation, NMCD has argued that its prelitigation affirmative defenses include the incorrect assertion that the EEOC’s claims are cut off as of the date of the EEOC’s reasonable cause determination. Indeed, NMCD argued that any additional acts of age discrimination or retaliation occurring after September 26, 2013, are not encompassed by this lawsuit and require additional pre-litigation investigation and conciliation. See Dkt. No. 142, p. 13. NMCD apparently believes the EEOC must file another identical lawsuit, alleging the same claims for relief, and seeking relief for the same individuals, in order to obtain relief for Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 21 of 25 -22- discriminatory actions occurring after September 26, 2013. Id. at p. 22. Defendant’s approach puts form over substance and encourages duplicative litigation, which wastes resources of the Court and the parties. As the Fourth Circuit explained in EEOC v. Gen. Elec. Co.: To require a new charge based on those facts and to begin again the administrative process thereon, would result in an inexcusable waste of valuable administrative resources and an intolerable delay in the enforcement of rights which require a “timely and effective remedy.” That procedure, as the Supreme Court said in a somewhat similar context in Love v. Pullman Co., 404 U.S. 522, 526 (1972), “would serve no purpose other than the creation of an additional procedural technicality.” It would be simply a useless exercise in technical nicety. 532 F.2d 359, 365–66 (4th Cir. 1976). The same is true here where the EEOC seeks relief for widespread and ongoing age discrimination. Importantly, the aggrieved individuals who participate in this case reasonably expect to obtain full relief, up to the date the case is settled or tried. Requiring them to participate in multiple lawsuits, in order to obtain full relief for the discrimination they experienced, will only discourage individuals from participating. In support of its argument for duplicative litigation, NMCD has cited a number of cases holding that the EEOC cannot use discovery in litigation to “uncover additional violations.” Dkt. No. 142, p. 12. But the EEOC is not seeking to uncover additional violations in this case. The EEOC has found three class-wide violations, as articulated in its determination letters and its complaint: age discrimination in selection and promotion decisions; age discrimination in terms, conditions, and privileges of employment; and retaliation for protected activity relating to age discrimination. Those violations, however, did not stop happening on September 26, 2013, and the EEOC and the aggrieved individuals should not have to pursue additional lawsuits, in order to obtain full relief. Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 22 of 25 -23- In short, NMCD’s attempt to limit the EEOC’s claims to discriminatory actions that occurred on or before September 26, 2013 is without merit and the EEOC asks the Court to hold as a matter of law that the EEOC’s claims continue through the resolution of this lawsuit. IV. CONCLUSION For all of the foregoing reasons, Plaintiff EEOC respectfully requests that the Court enter an order finding the EEOC fully met its prelitigation obligations as to Henderson, Tenorio and the statewide class of other aggrieved individuals. Moreover, the EEOC requests that the Court rule as a matter of law that the EEOC’s claims are not subject to a statute of limitations and are not cut off as of the date of the determination letters. Consequentially, EEOC requests that the Court grant the EEOC summary judgment on NMCD’s First, Second, Third, Fourth, Eighth, Ninth, Tenth, and Eleventh Affirmative Defenses. DATED May 30, 2017. RESPECTFULLY SUBMITTED, Electronically Filed /s/ Michael Baskind Michael Baskind Trial Attorney Telephone: (602) 640-5003 E-Mail: michael.baskind@eeoc.gov EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 N. Central Ave.Suite 609 Phoenix, AZ 85012 Wasan Awad Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 23 of 25 -24- Trial Attorney Gina Carrillo Trial Attorney Attorneys for Plaintiff EEOC Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 24 of 25 -25- CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 30, 2017, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Ellen S. Casey Jaclyn M. McLean HINKLE SHANOR LLC P.O. Box 2068 Santa Fe, NM 87504-2068 Telephone: 505-982-4554 Facsimile: 505-982-8623 Email: ecasey@hinklelawfirm.com jmclean@hinklelawfirm.com mgordon@hinklelawfirm.com Chelsea R. Green P.O. Box 10 Roswell, NM 88202 (575) 622-6510 cgreen@hinklelawfirm.com Attorneys for Defendant /s/ Michael Baskind Case 1:15-cv-00879-KG-KK Document 220-1 Filed 05/30/17 Page 25 of 25 Case 1:15-cv-00879-KG-KK Document 220-2 Filed 05/30/17 Page 1 of 5 Case 1:15-cv-00879-KG-KK Document 220-2 Filed 05/30/17 Page 2 of 5 Case 1:15-cv-00879-KG-KK Document 220-2 Filed 05/30/17 Page 3 of 5 Case 1:15-cv-00879-KG-KK Document 220-2 Filed 05/30/17 Page 4 of 5 Case 1:15-cv-00879-KG-KK Document 220-2 Filed 05/30/17 Page 5 of 5 EXHIBIT 2 Case 1:15-cv-00879-KG-KK Document 220-3 Filed 05/30/17 Page 1 of 5 1:15-cv-00879-KG/KK Alisson Sjue EEOC v. State of NM, Department of Corrections April 12, 2017 · · · · · · · · · UNITED STATES DISTRICT COURT · · · · · · · ·· FOR THE DISTRICT OF NEW MEXICO · · · · · · · · EQUAL EMPLOYMENT OPPORTUNITY · · COMMISSION, · · · · · · · · · ·· Plaintiff,· · ·Civ. No. 1:15-cv-00879-KG/KK · · · · vs. · · · · STATE OF NEW MEXICO, DEPARTMENT · · OF CORRECTIONS, · · · · · · · · · ·· Defendant. · · · · · · · · · · · · · · · · · · · 30 (b)(6) DEPOSITION OF ALISSON SJUE · · · · · · · · · · ·· Wednesday, April 12, 2017 · · · · · · · · · · · · ·· 1:07 p.m. · · · · · · · · · · · Cumbre Court Reporting, Inc. · · · · · · · · · · 2019 Galisteo, Suite A-1 · · · · · · · · ·· Santa Fe, New Mexico 87505 · · · · · · · · · · · · · · · · · · · · · · PURSUANT TO THE FEDERAL RULES OF CIVIL · · PROCEDURE, this Deposition was: · · · · TAKEN BY:··MICHAEL BASKIND - ATTORNEY FOR PLAINTIFF · · · · · · REPORTED BY:··ALLISON ASH-HOYMAN · · · · · · · · · NEW MEXICO CCR #18 - CCRR No. 137 · · · · · · · · · CUMBRE COURT REPORTING, INC. · · · · · · · · · 2019 Galisteo, Suite A-1 · · · · · · · · · Santa Fe, New Mexico 87505 CUMBRE COURT REPORTING, INC. 505-984-2244 Case 1:15-cv-00879-KG-KK Document 220-3 Filed 05/30/17 Page 2 of 5 1:15-cv-00879-KG/KK Alisson Sjue EEOC v. State of NM, Department of Corrections April 12, 2017 Page 22 · · ·· A.· ·Of course.··This letter could have gone out to·1· ·all agencies without describing our specific employee.·2· · · ·· Q.· ·Well, but it went out to the Department of·3· ·Corrections; correct?·4· · · ·· A.· ·This one came to the corrections department.·5· · · ·· Q.· ·And the letter states that the EEOC is putting·6· ·the Department of Corrections on notice that its·7· ·investigation is being expanded to cover the entire·8· ·State of New Mexico; correct?·9· · · ·· A.· ·Encompassing the entire State of New Mexico10· ·under the Age Discrimination in Employment Act.··The11· ·entire State of New Mexico.12· · · ·· Q.· ·And Robert Tenorio and Richard Henderson13· ·didn't work at all facilities in the State of New14· ·Mexico; right?15· · · ·· A.· ·I don't have information on that.16· · · ·· Q.· ·Okay.17· · · ·· A.· ·To clarify, our employees were often changing18· ·facilities, so I can't speak to that, actually.19· · · ·· Q.· ·Well, is it -- was NMCD's -- I mean, the20· ·question is, I'm trying to -- the question is:··As of21· ·May 24, 2012, isn't it fair to say that the New Mexico22· ·Corrections Department was on notice that the EEOC's23· ·investigation was no longer limited to Henderson and24· ·Tenorio, it was now encompassing the entire State of New25· CUMBRE COURT REPORTING, INC. 505-984-2244 Case 1:15-cv-00879-KG-KK Document 220-3 Filed 05/30/17 Page 3 of 5 1:15-cv-00879-KG/KK Alisson Sjue EEOC v. State of NM, Department of Corrections April 12, 2017 Page 23 ·Mexico?·1· · · · · · · MS. McLEAN:··Objection, form.·2· · · · · · · MR. BASKIND:··What's the objection, Jackie?·3· · · · · · · MS. McLEAN:··I think compound question, asked·4· ·and answered.·5· · · ·· A.· ·I can't speak to whether or not it's fair to·6· ·say something.·7· ·BY MR. BASKIND:·8· · · ·· Q.· ·Does NMCD agree?··Do want me to repeat --·9· · · · · · · Can you review, rephrase --10· · · · · · · MS. McLEAN:··Read the last --11· · · · · · · MR. BASKIND:··-- to the question I just asked.12· ·Could you repeat the question I asked.13· · · · · · · (Record read as requested.)14· · · ·· A.· ·I agree.··It was no longer limited to Tenorio,15· ·it was now encompassing the entire State of New Mexico.16· ·BY MR. BASKIND:17· · · ·· Q.· ·Okay.··So going back to Exhibit 151, the18· ·Henderson LOD.19· · · · · · · Can we go off the record for one second?20· · · · · · · THE REPORTER:··Sure.21· · · · · · · (Discussion off the record.)22· · · · · · · MS. McLEAN:··Are we back on, Michael?23· · · · · · · MR. BASKIND:··Yes, please.24· · · · · · · MS. McLEAN:··Okay.25· CUMBRE COURT REPORTING, INC. 505-984-2244 Case 1:15-cv-00879-KG-KK Document 220-3 Filed 05/30/17 Page 4 of 5 1:15-cv-00879-KG/KK Alisson Sjue EEOC v. State of NM, Department of Corrections April 12, 2017 Page 51 · · ·· Q.· ·Uh-huh, right.··So NMCD understood that·1· ·between that date range the EEOC is estimating that --·2· ·or seeking relief for a certain number of individuals·3· ·who are not yet identified from all these facilities in·4· ·the State of New Mexico; is that correct?·5· · · ·· A.· ·The NMCD read this at face value, I read this·6· ·at face value and presumed that the unidentified class·7· ·is an estimate based on the number of persons employed·8· ·by NMCD state-wide who would have been injured by·9· ·similar actions of discrimination and retaliation from,10· ·it says from July 16, 2010 to September 26, 2013.11· · · · · · · It's a new date range from what we expected12· ·conciliation to be revolving around, but that is what it13· ·says in this letter.··That's how they identified the14· ·unidentified class.··They did a statistical estimate15· ·from that date range.··It says that --16· · · ·· Q.· ·NMCD had notice -- so NMCD, at the very latest17· ·on July 1st, 2014, had notice that the EEOC was seeking18· ·relief for people that have yet to be identified from19· ·all of its facilities across the state; correct?20· · · ·· A.· ·During that date range, yes.··During the21· ·relevant time period.··This is directly taken from this22· ·letter.··We became aware that there was a relevant time23· ·period and it's defined right there in that paragraph.24· · · ·· Q.· ·Well, I mean, I haven't corrected you yet, but25· CUMBRE COURT REPORTING, INC. 505-984-2244 Case 1:15-cv-00879-KG-KK Document 220-3 Filed 05/30/17 Page 5 of 5 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION ______________________________________________________________________________ UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ) ) Plaintiff, ) v. ) Case No. 15-CV-3238 ) KING-LAR CO., ) ) Defendant. ) ORDER Defendant, King-Lar Company, filed this Motion to Dismiss (#6) on October 16, 2015. Plaintiff, United States Equal Employment Opportunity Commission (EEOC), filed its Memorandum in Opposition (#12) on November 2, 2015. For the following reasons, Defendant’s Motion to Dismiss (#6) is DENIED. BACKGROUND On April 25, 2013, Hector M. Mercado-Hernandez filed a charge of discrimination with the EEOC, alleging racial, gender, and national-origin based discrimination against Defendant, his employer. He alleged he was hired by Defendant in 2009, and his current position was “apprentice.” He further alleged that, during his employment, he was subjected to sexual harassment and derogatory comments regarding his national origin and color. He also alleged that, on or about November 8, 2012, he was physically assaulted by a co-worker. He believed that he had been discriminated against because of his national origin (Hispanic), color (dark complexion), and sex, male, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. On that same day the EEOC sent Defendant a “Notice of Charge E-FILED Monday, 07 December, 2015 02:59:27 PM Clerk, U.S. District Court, ILCD 3:15-cv-03238-CSB-EIL # 14 Page 1 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 1 of 12 of Discrimination” requesting Defendant provide, by May 28, 2013, a statement of its position on the issues covered by the charge, with copies of any supporting documentation to the EEOC representative listed in the notice. According to an affidavit filed with the motion to dismiss by E. Scott Lamb, Defendant’s president, Defendant did its best to investigate the charge, but there was not sufficient information provided by the EEOC. Lamb avers Defendant timely responded to the EEOC charge with its “statement of position,” objecting to the failure of the EEOC’s notice and charge to identify any circumstances, person, place, or time with respect to Hernandez’s allegations. During the course of the investigation, according to Lamb, Defendant continued to ask the EEOC to provide more specific information regarding the allegations, but the EEOC would not do so. On April 13, 2015, the EEOC issued its Determination Letter, stating it had “determined that the evidence obtained in the investigation establishes reasonable cause to believe that Respondent discriminated against Charging Party based on his national origin, Hispanic, and his color, dark complexion, by subjecting him to harassment in violation of Title VII of the Civil Rights Act of 1964, as amended.” The letter stated the determination was final, and invited the parties to join with the EEOC “in reaching a just resolution of this matter” via conciliation. The letter stated disclosure of information obtained by the EEOC during the investigation would be made only in accordance with the EEOC’s procedural regulations (29 C.F.R. Part 1601.26). The letter informed Defendant that it had 14 days to contact the EEOC if it wished to participate in conciliation. To participate, Defendant needed to submit proposed terms for a conciliation agreement. 2 3:15-cv-03238-CSB-EIL # 14 Page 2 of 12 Case 1:15-cv-00879-KG-KK Document 20-4 Filed 05/30/17 Page 2 of 12 In response to the Determination Letter, according to Lamb, Defendant asked the EEOC for necessary information about the derogatory comments, including the date, place, and circumstances and speaker of the alleged comments so it could more fully investigate, evaluate, conciliate, and resolve the claim. According to Lamb the EEOC identified the words allegedly said to Hernandez, but refused to provide any information with respect to the date, place, circumstances, or speaker of the alleged statements. On June 8, 2015, the EEOC sent Defendant a letter stating that it had determined that, with respect to Hernandez’s charge, conciliation efforts had been unsuccessful, and that Defendant was being put on notice pursuant to § 1601.25 of the EEOC’s regulations. The EEOC filed its Complaint (#1) in federal court on August 19, 2015. The complaint alleges Defendant has engaged in unlawful employment practices such as subjecting Hernandez to a hostile work environment because of his national origin, Puerto Rican/Hispanic and color, dark complexion. The complaint further alleged that foremen and co-workers made unwelcome, offensive comments to Hernandez because of his national origin and/or color, including, but not limited to, referring to him as “spic,” “nigger,” “Mexican nigger,” “wetback,” “Puerto Rican nigger,” and “nigger slave.” Defendant was aware of the harassment because Hernandez complained of the harassment, management was made aware by others of the harassment, and because managers were present when some of the harassing comments were made. However, the complaint alleges Defendant failed to remedy the harassment. The effect of the practices complained of was to deprive Hernandez of equal employment opportunities and otherwise adversely affected his status as an employee because of his national 3 3:15-cv-03238-CSB-EIL # 14 Page 3 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 3 of 12 origin and skin color. The complaint further alleges that the unlawful practices were intentional and/or done with malice and reckless indifference to Hernandez’s federally protected rights. ANALYSIS Defendant makes three arguments in its motion to dismiss: (1) the EEOC failed to provide Defendant with the requisite factual information about the charge, thus preventing Defendant from engaging in a meaningful discussion with the EEOC about conciliation; (2) the claim is time-barred under Federal Rule of Civil Procedure 12(b)(6); and (3) the claim should be dismissed for failure to state a claim pursuant to Rule 12(b)(6). I. The Claim Should Be Dismissed or in the Alternative Stayed for Further Efforts at Conciliation Defendant argues that neither Hernandez’s original charge, nor the EEOC’s Notice, provided any dates, times, places, or persons regarding the allegation of derogatory comments as required by 29 C.F.R. § 1601.12(a)(3) and 1601.14(a), nor did the charge or Notice indicate the frequency or severity of the comments. This failure to provide Defendant with the required information, Defendant argues, prevented Defendant from fully investigating and determining the nature of the comments and from determining what failures and corrective action should be taken to prevent such occurrences in the future. Thus, Defendant argues the EEOC failed to provide enough information to allow Defendant to meaningfully participate in conciliation under the law. 4 3:15-cv-03238-CSB-EIL # 14 Page 4 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 4 of 12 Defendant’s argument relies primarily on the recent U.S. Supreme Court decision in Mach Mining, LLC v. Equal Employment Opportunity Commission, 135 S.Ct. 1645 (2015). In that case the Court held that courts could review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit, but that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case. Mach Mining, 135 S.Ct. at 1649. The Court held that, for the EEOC to meet the statutory condition, it “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.” Mach Mining, 135 S.Ct. at 1652. The Court then addressed the appropriate scope of judicial review for whether the EEOC had met the statutory conciliation requirement. The Court wrote that “the appropriate scope of review enforces the statute’s requirements as just described- in brief, that the EEOC afford the employer a chance to rectify a specified discriminatory practice- but goes no further.” Mach Mining, 135 S.Ct. at 1653. Two letters from the EEOC, the first announcing the finding of reasonable cause and informing the defendant company that an EEOC representative would be in contact with the parties about beginning conciliation, and the second stating that the mandated conciliation attempt had “occurred” and failed, is not enough to fulfill the condition of conciliation for purposes of judicial review. The Court continued: The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim; the latter one 5 3:15-cv-03238-CSB-EIL # 14 Page 5 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 5 of 12 expressly represents as much. But suppose an employer contests that statement. Let us say the employer files an affidavit alleging that although the EEOC promised to make contact, it in fact did not. In that circumstance, to treat the letters as sufficient - to take them at face value, as the Government wants - is simply to accept the EEOC’s say-so– that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge. [citation omitted] For that, a court needs more than the two bookend letters the Government proffers. Mach Mining, 135 S.Ct. at 1653. However, the EEOC need only “endeavor” to conciliate a claim, without having to devote a set amount of time or resources to that project. Mach Mining, 135 S.Ct. at 1654. Further, the attempt need not involve any specific steps or measures, but rather the EEOC may use in each case whatever “informal” means of “conference, conciliation, and persuasion” it deems appropriate. Mach Mining, 135 S.Ct. at 1654. The EEOC alone decides whether in the end to make an agreement or resort to litigation, and may sue whenever it is unable to secure terms it finds acceptable. Mach Mining, 135 S.Ct. at 1654, citing § 2000e-5(f)(1). The Court noted that Congress left to the EEOC such strategic decisions as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield. Mach Mining, 135 S.Ct. at 1654. The Court also stated that Congress granted the EEOC discretion over the pace and duration of the conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief. Mach Mining, 135 S.Ct. at 1654. The Court concluded: The statute demands, once again, that the EEOC communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an “endeavor” to achieve an 6 3:15-cv-03238-CSB-EIL # 14 Page 6 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 6 of 12 employer's voluntary compliance. § 2000e–5(b). That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.” [citation omitted] Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute's non-disclosure provision, because 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. A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. Cf. United States v. Clarke, 573 U.S. ––––, ––––, 134 S.Ct. 2361, 2367, 189 L.Ed.2d 330 (2014) (“[A]bsent contrary evidence, the [agency] can satisfy [the relevant] standard by submitting a simple affidavit from” the agency representative involved). If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, 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. Cf. id., at –––– – ––––, 134 S.Ct., at 2367–2368. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. See § 2000e–5(f)(1) (authorizing a stay of a Title VII action for that purpose).” Mach Mining, 135 S.Ct. at 1655-56. Applying Mach Mining’s analysis to the facts of this case, as stated by the parties, the EEOC has fulfilled its initial obligation under Mach Mining by filing with the court a sworn affidavit from Julianne Bowman, the EEOC’s district director, noting: (1)that she had personally reviewed the investigative file for Hernandez’s charge; (2) that the Letter 7 3:15-cv-03238-CSB-EIL # 14 Page 7 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 7 of 12 of Determination finding reasonable cause had been sent to Defendant; and (3) that Defendant had been invited to participate in informal methods of conciliation with the EEOC. She further averred that between April 16 and June 1, 2015, the EEOC engaged in oral and written communications with Defendant to provide Defendant the opportunity to remedy the discriminatory practices described in the Letter of Determination, including sending Defendant a conciliation proposal. Following those efforts, Bowman concluded that further efforts in conciliation would not result in the EEOC being able to secure from Defendant a conciliation agreement acceptable to the EEOC, and on June 8, 2015, she issued a notice to Defendant stating that such conciliation efforts as are required by law had occurred and been unsuccessful, and that the EEOC had determined that further conciliation efforts would be futile or non- productive. Thus, under Mach Mining, the EEOC had made a preliminary showing that it met the conciliation requirement. Mach Mining, 135 S.Ct. at 1656. However, Defendant attached to its motion an affidavit indicating that the EEOC did not provide the requisite information about the charge, and thus failed to give Defendant fair notice of Hernandez’s claims and failed to give Defendant a meaningful opportunity to participate in the required conciliation process. Therefore, under Mach Machines, the court must conduct fact finding necessary to decide this limited dispute. Mach Machines, 135 S.Ct. at 1656. The dispute at issue comes down to what exactly is the “requisite information” that the EEOC had to provide Defendant about the charge in order for the parties to engage in meaningful conciliation. Conciliation efforts are insufficient if they do not give the employer an opportunity to remedy the discrimination, i.e. by informing the 8 3:15-cv-03238-CSB-EIL # 14 Page 8 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 8 of 12 employer where the discrimination is occurring. U.S. E.E.O.C. v. GNLV Corp., 2015 WL 3467092, at *8 (D. Nevada June 1, 2015). In particular, the EEOC has the duty to identify to the accused employer “‘the groups of persons that it has reason to believe have been discriminated against, the categories of employment positions from which they have been excluded, the methods by which the discrimination may have been effected, and the periods of time in which [the EEOC] suspects the discrimination to have been practiced.’” GNLV Corp., 2015 WL 3467092, at *5, quoting EEOC v. Shell Oil Co., 466 U.S. 54, 73 (1984). The contents of an EEOC charge should contain the following: “(1) The full name, address and telephone number of the person making the charge except as provided in § 1601.7; (2) The full name and address of the person against whom the charge is made, if known (hereinafter referred to as the respondent); (3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices: See § 1601.15(b); (4) If known, the approximate number of employees of the respondent employer or the approximate number of members of the respondent labor organization, as the case may be; and (5) A statement disclosing whether proceedings involving the alleged unlawful employment practice have been commenced before a State or local agency charged with the enforcement of fair employment practice laws and, if so, the date of such commencement and the name of the agency.” 29 C.F.R. § 1601.12(a). Recently, in Huri v. Office of the Chief Judge of the Circuit Court of Cook County, 804 F.3d 826 (7th Cir. 2015), the Seventh Circuit stated: Courts review the scope of an EEOC charge liberally. [citation omitted]. Most EEOC charges are (like Huri's first one) drafted by laypersons rather than lawyers, so a Title VII plaintiff need not include in her charge every fact that, individually or in combination, forms the basis of a subsequent lawsuit's claims. [citation omitted” Huri, 804 F.3d at 831. 9 3:15-cv-03238-CSB-EIL # 14 Page 9 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 9 of 12 While the EEOC provided the words allegedly said to Hernandez and that he had been assaulted on November 8, 2012, Defendant claims the EEOC did not provide information about the (1) date; (2) place; (3) circumstances; and (4) speaker of the specific instances of alleged discrimination that served as the basis of the charge. Although individual speakers of discrimination and specific dates were not provided, the court finds that, reviewing the EEOC charges liberally, Defendant was provided with enough requisite information for meaningful conciliation to be engaged in. The EEOC charge identified the place of employment as where the discrimination occurred, including a specific date for assault (November 8, 2012), that Hernandez was the aggrieved party, and that he had been harassed based on his gender and national origin/skin color. Thus, the EEOC identified to Defendant “the groups of persons that it has reason to believe have been discriminated against” and “the methods by which the discrimination may have been effected, and the periods of time in which [the EEOC] suspects the discrimination to have been practiced.” Shell Oil, 466 U.S. at 73. The EEOC further informed Defendant of exactly what types of derogatory and discriminatory statements were made towards Hernandez. The court finds that the information provided by the EEOC was sufficient to put Defendant on notice of the nature of the charge and claim, and to engage in sufficient conciliation to help remedy the discrimination. The court is basing its ruling on the facts before it in the affidavits and filings of the parties. If further pertinent information should come out during discovery, Defendant is free to revisit this issue at summary judgment. Defendant’s motion is denied on this ground. 10 3:15-cv-03238-CSB-EIL # 14 Page 10 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 10 of 12 II. The Claim Should Be Dismissed Because It is Untimely Defendant next argues that the EEOC’s action is time-barred because at least one of the acts contributing to a hostile work environment must occur within the limitations period, otherwise the court cannot consider the acts that occurred outside the limitations period under the continuing violation doctrine. The parties dispute whether a charging party in Illinois has 300 or 180 days after an alleged unlawful employment practice occurs in which to file a charge of discrimination. Illinois is considered a “deferral state,” meaning a state that has a state agency (the Illinois Department of Human Rights) which also handles charges of discrimination, and thus charging parties in Illinois have 300 days, not 180, to file a charge following the commission of the discriminatory act. Banton v. Dowds, 2007 WL 2772515, at *17 (C.D. Ill. Sept. 19, 2007); Philbin v. General Electric Capital Auto Lease, Inc., 929 F.2d 321, 324 (7th Cir. 1991). Either way, the charge, read in light most favorable to the EEOC, falls within the 300 (or 180) day period. The charge was filed April 25, 2013, and mentions a specific incident of assault on November 8, 2012, which was only 167 days prior. Liberally construing the pro se charge, the court finds it could be read to connect the November 8, 2012 assault with the ongoing racial/gender harassment alleged by Hernandez. Thus, Defendant’s motion is denied on this ground. III. The Claim Should be Dismissed Pursuant to Rule 12(b)(6) for Failure to State a Claim This court has carefully reviewed the complaint and documents filed with regard to Defendant’s Motion to Dismiss. Following its review, this court concludes that the complaint contains “enough facts to state a claim to relief that is plausible on its 11 3:15-cv-03238-CSB-EIL # 14 Page 11 of 12 Case 1:15-cv-00879-KG-KK Document 220-4 Filed 05/30/17 Page 11 of 12 face.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Therefore Defendant’s Motion to Dismiss on this ground is denied. IT IS THEREFORE ORDERED: (1) Defendant’s Motion to Dismiss (#6) is DENIED. (2) This case is referred to Magistrate Judge Eric I. Long for further proceedings in accordance with this order. ENTERED this 7th day of December, 2015. s/COLIN S. BRUCE U.S. DISTRICT JUDGE 12 3:15-cv-03238-CSB-EIL # 14 Page 12 of 12 Case 1:15-cv-00879-KG-KK Document 2 0-4 Filed 05/30/17 Page 12 of 12