U.S. Equal Employment Opportunity Commission v. Capital Restaurant Concepts, Ltd.

MOTION to Strike 16 Answer to Complaint , MOTION for Partial Summary Judgment

D.D.C.May 19, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA U.S. EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, ) ) No. 1:16-cv-02477-BAH ) ) Plaintiff. ) ) v. ) ) CAPITAL RESTAURANT CONCEPTS, LTD., ) d/b/a PAOLO’S – GT LLC ) ) ) Defendant. ) ) PLAINTIFF’S MOTION TO STRIKE FROM THE ANSWER DEFENDANT’S CONDITIONS PRECEDENT DENIAL AND DEFENSE, OR, IN THE ALTERNATIVE, MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE CONDITIONS PRECEDENT ISSUE Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”), hereby moves for an order striking a denial and defense from Defendant Capital Restaurant Concepts, Ltd., d/b/a Paolo’s — GT LLC’s (“Defendant”) Answer pursuant to Fed. R. Civ. P. 12(f) and Fed. R. Civ. P. 16 (a). Specifically, the EEOC moves to strike the denial in paragraph 11 and the ninth defense, which dispute the satisfaction of the administrative conditions precedent to the filing of this lawsuit. See Answer, ECF No. 16 at ¶ 11, at p. 5. The denial and the defense are legally insufficient, immaterial, and impertinent, and striking them is necessary to avoid wasteful discovery and litigation of frivolous legal theories. The EEOC therefore respectfully requests that the Court strike the above-referenced denial and defense from Defendant’s Answer for the reasons set forth in the attached Memorandum of Points and Authorities. Case 1:16-cv-02477-BAH Document 18 Filed 05/19/17 Page 1 of 3 2 If the Court declines to strike the denial and defense, the EEOC moves, in the alternative, for an order granting Partial Summary Judgment regarding its satisfaction of the administrative conditions precedent to suit pursuant to Fed. R. Civ. P. 56. As set forth in the attached Memorandum of Points and Authorities, the EEOC moves for Partial Summary Judgment on this issue because there are no genuine issues of material fact and the Commission is entitled to judgment as a matter of law. Respectfully Submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION /s/ Debra Lawrence Debra Lawrence Regional Attorney /s/ Maria Luisa Morocco Maria Luisa Morocco Supervisory Trial Attorney EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0724 maria.morocco@eeoc.gov /s/ Tanisha R. Wilburn TANISHA R. WILBURN Trial Attorney U.S. EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0712 tanisha.wilburn@eeoc.gov Case 1:16-cv-02477-BAH Document 18 Filed 05/19/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I, Tanisha R. Wilburn, hereby certify that on May 19, 2017, the foregoing was served via electronic mail and ECF to: Brian A. Scotti Courtney R. Abbott Gordon Rees Mansukhani & Scully, LLP 1300 I Street, NW, Suite 825 Washington, D.C. 20005 Phone: (202) 399-1009 bscotti@gordonrees.com cabbott@gorondrees.com Counsel for Defendant /s/ Tanisha R. Wilburn TANISHA R. WILBURN Trial Attorney U.S. EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0712 tanisha.wilburn@eeoc.gov Case 1:16-cv-02477-BAH Document 18 Filed 05/19/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA U.S. EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, ) ) ) No. 1:16-cv-02477-BAH ) ) Plaintiff. ) ) v. ) ) CAPITAL RESTAURANT CONCEPTS, LTD., ) d/b/a PAOLO’S – GT LLC ) ) ) Defendant. ) ) MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE FROM THE ANSWER DEFENDANT’S CONDITIONS PRECEDENT DENIAL AND DEFENSE, OR, IN THE ALTERNATIVE, MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE CONDITIONS PRECEDENT ISSUE Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) hereby moves pursuant to Fed. R. Civ. P. 12 (f) and Fed. R. Civ. P. 16 (a) for an order striking from the Answer Defendant Capital Restaurant Concepts, Ltd., d/b/a Paolo’s — GT LLC’s (“Defendant”) denial that EEOC has fulfilled the administrative conditions precedent to the filing of this lawsuit, and also its ninth defense alleging that EEOC’s “claims are barred, in whole or in part, by Plaintiff’s failure to satisfy the statutory and/or administrative prerequisites to the bringing of an action under Title VII of the Civil Rights Act of 1964. . . .” Answer, ECF No. 16 at ¶ 11, at p. 5. In the alternative, Plaintiff moves pursuant to Fed. R. Civ. P. 56 for Partial Summary Judgment that it satisfied the administrative conditions precedent to suit. Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 1 of 25 2 INTRODUCTION The instant lawsuit is a de novo action filed under Title VII of the Civil Rights Act of 1964. For this reason, the Court cannot review the substance of the EEOC’s administrative findings, and its review of whether EEOC has fulfilled the conditions precedent that EEOC investigate the allegations in a Charge of Discrimination and attempt pre-suit resolution (conciliation) is extremely limited. See, e.g., Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1653 (2015) (holding that any judicial review of the EEOC’s pre-suit conciliation requirement must be extremely limited); Borg-Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831, 835-36 (D.C. Cir. 2001) (concluding that the findings in an EEOC Letter of Determination were not subject to judicial review); AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) (same); EEOC v. Blinded Veterans Ass’n, 128 F. Supp. 3d 33, 45 (D.D.C. 2015) (refusing to second-guess the manner in which the EEOC investigates a charge). Despite these well-settled legal principles—all of which were briefed in the EEOC’s Opposition to Defendant’s Motion to Dismiss, see Mem. Opp’n. to Def.’s Mot. to Dismiss, ECF No. 12—Defendant is intent on creating an ancillary proceeding in this case focusing on the manner in which the EEOC undertook the administrative process in this matter. It is intent on manufacturing this distraction even though its Chief Financial Officer, in a declaration attached to Defendant’s Motion to Dismiss, has admitted that the EEOC investigated the allegations in the Charge, and even though it admits in its Answer that the EEOC fulfilled the requirements for conciliation articulated by the Supreme Court in Mach Mining. For these reasons and others, all of which are fully explained below, the pursuit of a defense based on the EEOC’s fulfillment of conditions precedent would be a frivolous and wasteful undertaking in a case in which the Parties have already expended considerable time and effort in a briefing related to Defendant’s recently withdrawn Motion to Dismiss. The EEOC is therefore requesting that Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 2 of 25 3 the Court utilize the powers afforded to it under Fed. R. Civ. P. 12 (f) and Fed. R. Civ. P. 16 (a) to prevent Defendant from pursuing a conditions precedent defense, so that this case can proceed on the merits, consistent with Defendant’s stated intention in its request to withdraw its Motion to Dismiss. See Def.’s Notice of Withdrawal, ECF No. 14 at ¶ 1 (“CRC has elected to withdraw its Motion to Dismiss the Complaint or in the Alternative, Motion to Stay (ECF No. 6) and proceed to the merits of this case.”). BACKGROUND AND STATEMENT OF UNDISPUTED MATERIAL FACTS More than thirty days prior to the filing of this lawsuit, Alejandro Hernandez (“Hernandez”) filed a Charge of Discrimination with the EEOC against Defendant.1 Statement of Undisputed Material Facts, at ¶ (A) (1). The EEOC’s investigation of the Hernandez Charge included obtaining a written position statement from Defendant, interviewing Defendant’s current employees at an onsite at its corporate headquarters, and, after the onsite, requesting that Defendant provide contact information for its former Area Director, former General Manager, and former Executive Chef. Id. at ¶ (A) (2) (a) – (c). A little over a year after Hernandez filed his Charge, on August 10, 2016, the Commission issued to Defendant a Letter of Determination (“LOD”) finding reasonable cause to believe that it violated Title VII by subjecting Hernandez to harassment based on his sex. Id. at ¶ (B) (1), (2); see also Ex. 2, Declaration of M. Weinstein (“Weinstein Decl.”) at Attach. A. The LOD invited Defendant to participate in the conciliation process, during which, the Commission engaged in some communications with Defendant “in an attempt to reach a resolution regarding 1 The thirty-day period referenced here is relevant to the EEOC’s statutory authority to file suit against Defendant. See 42 U.S.C. § 2000e-5 (f) (1) (stating that “[i]f within thirty days after a charge is filed with the Commission . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any [nongovernmental] respondent . . . named in the charge”); see also Martini v. Fannie Mae, 178 F.3d 1336, 1343 (D.C. Cir. 1999) (stating that the “30-day provision [in Title VII] specifies one condition . . . under which the EEOC may sue”). Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 3 of 25 4 purported allegations of discrimination.” Id. at ¶ (B) (3), (4). Defendant did not enter into a final conciliation agreement with the EEOC, and the Commission issued to Defendant a Notice of Failure of Conciliation. Id. at ¶ (B) (5), (6). On December 22, 2016, the EEOC filed the present action in which it alleged that “Defendant has engaged in sex discrimination against Hernandez, a gay male, then age 18, by subjecting him to severe or pervasive sexual harassment, and by maintaining a hostile work environment, because of his sex [in violation of Title VII of the Civil Rights Act of 1964].” Compl. ECF No. 1 at ¶ 12(a). On March 9, 2017, the Defendant filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), in which it alleged, inter alia, that EEOC had failed to satisfy the investigation and conciliation conditions precedent to suit. Ex. 1, Mem. in Support of Def.’s Mot. to Dismiss, ECF No. 6-1, at pp. 11-15. Notably, in its brief, Defendant relied upon a declaration from its Chief Financial Officer in which he admitted that the EEOC engaged in certain investigative activities—i.e., conducted interviews of current staff and requested contact information for former staff. See id. at 13; Ex. 1, Attach. A, Declaration of M. Craft (“Craft Decl.”) at ¶¶ 4, 8. EEOC filed a forty-two page Opposition to Defendant’s Motion to Dismiss on April 6, 2017. Mem. Opp’n. to Def.’s Mot. to Dismiss, ECF No. 12. Therein, it noted the self-defeating admissions related to the EEOC’s investigation and thoroughly discussed cases from the DC Circuit and other federal appellate courts holding that there is no judicial review of EEOC administrative findings; the cases holding that, as to the investigative condition precedent, a court’s minimal review is limited to whether some investigation occurred; and, as to the conciliation condition precedent, the Supreme Court’s Mach Mining decision holding that federal courts may only make a “bare bones” inquiry into whether the EEOC notified the employer Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 4 of 25 5 about the allegations at issue and about “what the employer has done and which employees (or what class of employees) have suffered as a result,” and whether the EEOC “engage[d] the employer in some form of discussion (whether written or oral) as to give the employer the opportunity to remedy the allegedly discriminatory practice.” Mach Mining, 135 S. Ct. at 1655- 56; see also Mem. Opp’n. to Def.’s Mot. to Dismiss, ECF No. 12 at pp. 32-42. On April 21, 2017, Defendant filed a Notice with the Court stating that it was withdrawing its Motion to Dismiss in its entirety because it had “elected … to proceed to the merits of this case.”2 Def.’s Notice of Withdrawal, ECF No. 14 at ¶ 1. Notwithstanding this representation to the Court and despite filing its Answer admitting that EEOC fulfilled the conciliation condition precedent set forth in Mach Mining, see Answer, ECF No. 16 at ¶¶ 7-10, Defendant, in its Answer still denies that “[a]ll conditions precedent to the institution of this lawsuit have been fulfilled,” and it asserted as its ninth defense that the EEOC had failed to satisfy the conditions precedent to suit. Compl., ECF No 1 at ¶ 11; Answer, ECF No. 16 at ¶ 11, at p. 5. On May 2, 2017, the EEOC raised concerns to Defendant about its denial and defense related to conditions precedent, given the admissions in the Craft Declaration regarding the investigation, and the admissions in the Answer regarding the conciliation process. See Ex. 3, Letter from Tanisha R. Wilburn, Pl.’s Counsel, to Brian A. Scotti, Def.’s Counsel (May 2, 2017). EEOC requested that Defendant amend its Answer to admit that the EEOC satisfied the conditions precedent to suit, and to withdraw the ninth defense. Id. In an email sent after the Rule 26 (f) conference, the EEOC reiterated its request that Defendant amend its Answer. See Ex. 4, E-mail from Tanisha R. Wilburn, Pl.’s Counsel, to Brian A. Scotti, Def.’s Counsel (May 3, 2 Defendant notified the EEOC and potential amici of its intention to withdraw its Motion to Dismiss on the same day that it provided notice to the Court. This date was the deadline for potential amici to seek leave to file briefs. Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 5 of 25 6 2017). It included in this email citations to the cases within the DC Circuit that hold that an EEOC’s reasonable cause determination is not reviewable by the Court, and that the courts cannot second-guess the EEOC’s discretionary role in determining how to conduct its investigations. Id. In response, Defendant’s counsel sent an email on May 4, 2017, in which he stated that Defendant “does not take exception” to the EEOC’s fulfillment of the conciliation condition precedent but, that, even though he “had not looked at” the cases cited by EEOC, Defendant intends to litigate the theory about the investigation set forth in its Motion to Dismiss. Ex. 5, E- mail from Brian A. Scotti, Def.’s Counsel, to Tanisha R. Wilburn, Pl.’s Counsel (May 4, 2017). That is, Defendant intends to argue that the EEOC did not satisfy the investigation condition precedent because “the investigator did not consider all of the evidence,” had a “predetermined outcome in mind,” and conducted a “sham” investigation.3 Id. Defendant’s attorney confirmed that “the investigation conducted by the EEOC will be an issue in this case and [that it] intend[s] to seek discovery on this topic.” Id. He also stated that Defendant was “not inclined to amend the Answer unless [the EEOC] think[s] it would be beneficial to note that CRC does not take exception to the EEOC’s conciliation efforts.” Id. 3 Defendant’s speculation about the Investigator’s state of mind is based on the discussion between the Investigator and Defendant’s CFO about the EEOC’s settlement processes. Defendant is apparently unaware that EEOC charges can settle at any point in the administrative process—i.e., through early mediation, through a predetermination settlement, and through conciliation after a cause finding has been made. See, e.g., EEOC, Questions and Answers About Mediation, available at https://www.eeoc.gov/eeoc/mediation/qanda.cfm (confirming that mediation is available during the administrative process); 29 C.F.R. § 1601.20 (a) (“Prior to the issuance of a determination as to reasonable cause the Commission may encourage the parties to settle the charge on terms that are mutually agreeable.”); see id. § 1601.24 (a) (“Where the Commission determines that there is reasonable cause to believe that an unlawful employment practice has occurred or is occurring, the Commission shall endeavor to eliminate such practice by informal methods of . . . conciliation. . . .”). Moreover, it is entirely commonplace for an EEOC Investigator to describe the conciliation process to employers who want to know what will happen in the event the EEOC makes a cause finding. Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 6 of 25 7 In an email to Defendant on May 5, 2017, the EEOC stated the following: The EEOC disputes your characterization of the discussion you witnessed between the investigator and Defendant’s corporate officer. Moreover, when you read the cases cited in our opposition brief, you will see that because an EEOC lawsuit is a de novo proceeding, the Court can only review whether an investigation occurred. The manner in which the investigation proceeded, the mental impressions of the investigator, and the outcome of the investigation are not reviewable. It remains the EEOC’s position that Defendant must remove all denials to all conditions precedent from its answer, as well as the Ninth Affirmative Defense. If Defendant remains unwilling to do so, it should, at a minimum, amend its answer to clarify its position that it is not challenging the conciliation condition precedent. Ex. 6, E-mail from Tanisha R. Wilburn, Pl.’s Counsel, to Brian A. Scotti, Def.’s Counsel(May 5, 2017). The EEOC requested a response no later than May 8, 2017, to allow sufficient time to file the present Motion.4 Id. However, Defendant did not respond to the EEOC’s May 5th email and in the course of finalizing the Rule 26(f) report, the EEOC came to the understanding that Defendant would not be amending its Answer. It therefore has elected to proceed with the instant Motion. ARGUMENT I. Motion to Strike Standard Rule 12(f) of the Federal Rules of Civil Procedure states that on timely motion by a party, “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, 4 Under Rule 12 (f) of the Federal Rules of Civil Procedure, a party is permitted to move to strike a pleading “within 21 days after being served with the pleading.” Fed. R. Civ. P. 12 (f). The EEOC engaged in these discussions because it planned to file a motion to strike if Defendant did not agree to amend its Answer. Because a motion to strike is a nondispositive motion, consistent with Local Civil Rule 7 (m), the EEOC was required, prior to filing a nondispositive motion, to “discuss the anticipated motion with opposing counsel in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is, to narrow the areas of disagreement.” LCvR 7 (m). Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 7 of 25 8 impertinent,5 or scandalous matter.” Fed. R. Civ. P. 12 (f)(1). The “decision to grant or deny a motion to strike is vested in the trial judge’s sound discretion.” Aftergood v. CIA, 355 F. Supp. 2d 557, 564 (D.D.C. 2005). Motions to strike an insufficient defense are granted “‘where it is clear that the . . . defense is irrelevant and frivolous and its removal from the case would avoid wasting unnecessary time and money litigating the invalid defense.’” United States ex. rel Landis v. Tailwind Sports Corp., 308 F.R.D. 1, 4 (D.D.C. 2015) (quoting U.S. ex rel. Head v. Kane Co., 668 F. Supp. 2d 146, 150 (D.D.C. 2009)); see also Intex Rec. Corp. v. Team Worldwide Corp., 390 F. Supp. 2d 21, 24 (D.D.C. 2005) (same); Heller v. Fin. Inc. v. Midwhey Powder Co. Inc., 883 F.2d 1286, 1294 (7th Cir. 1989) (“[W]here . . . motions to strike remove unnecessary clutter from the case, they serve to expedite, not delay.”). Motions to strike defenses as legally insufficient are also granted “where the defense asserted is foreclosed by prior controlling decisions or statutes. . . .” EEOC v. Prod. Fabricators, 873 F. Supp. 2d 1093, 1097 (D. Minn. 2012) (internal quotation marks and citation omitted). Motions to strike a defense as “immaterial” or “impertinent” are granted when the defenses “consist[] of statements and averments bearing no essential or important relationship to the claim for relief or the defenses being pled.” Cobell v. Norton, 224 F.R.D. 1, 3 (D.D.C. 2004); see also Fannie Mae v. Milasinovich, 161 F. Supp. 3d 981, 993 (D.N.M. 2016) (“Allegations will not be stricken as immaterial under [Rule 12(f)] unless they have no possible bearing on the controversy.”) (internal quotation marks and citation omitted); Hartford Underwriters Ins. Co. v. Kraus USA, Inc., 313 F.R.D. 572, 574 (N.D. Cal. 2016) (“A matter is impertinent if it does not pertain and is not necessary to the issues in question in the case.”). “[W]hile Rule 12(f) ‘does not 5 “An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor relevant to the issues involved in the action. Material may also be struck as . . . immaterial or impertinent. . . when the material seeks to raise issues that have already been fully decided by the court.” 2-12 Moore’s Federal Practice – Civil § 12.37 (2017). Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 8 of 25 9 require the moving party to show that it would be prejudiced should the allegations remain in the pleading, courts view motions to strike . . . with such disfavor that many courts will grant such motion only if the portions sought to be stricken as immaterial are also prejudicial. . . .” FTC v. Cantkier, 767 F. Supp. 2d 147, 160 (D.D.C. 2011) (quoting Uzlyan v. Solis, 706 F. Supp. 2d 44, 51-52 (D.D.C. 2010)). As detailed below, the EEOC is moving to strike Defendant’s conditions precedent denial and affirmative defense as legally insufficient because they are frivolous, litigating them will waste time and resources, and the defenses are “foreclosed by prior controlling decisions or statutes.” Prod. Fabricators, 873 F. Supp. 2d at 1097. The EEOC is also moving to strike Defendant’s investigation-based condition precedent defense as immaterial and impertinent because the defense “bear[s] no essential or important relationship to the claim for relief or the defenses being pled” as it is foreclosed as a matter of law and does not address the controversy in question—i.e., whether Defendant subjected Hernandez to sexual harassment in violation of Title VII. Cobell, 224 F.R.D. at 3. A. Defendant’s Defense Based on Satisfaction of the Investigation Condition Precedent Is Legally Insufficient, Immaterial, and Impertinent. 1. Defendant Has Admitted that the EEOC Conducted an Investigation. Title VII requires that the Commission “make an investigation” of a charge as a condition precedent to suit. 42 U.S.C. § 2000e-5(b). It does not, however, prescribe the manner in which the EEOC undertakes the investigation, or the scope or breath of that investigation. Therefore, these issues are left to the EEOC’s discretion. See, e.g., EEOC v. Sterling Jewelers Inc., 801 F.3d 96, 101 (2d Cir. 2015) (“The sole question for judicial review is whether the EEOC conducted an investigation. . . . [C]ourts may not review the sufficiency of an investigation— only whether an investigation occurred. . . . For a court to second guess the choices made by the Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 9 of 25 10 EEOC in conducting an investigation ‘is not to enforce the law Congress wrote, but to impose extra procedural requirements.’”) (quoting Mach Mining, 135 S. Ct. at 1655); EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 675 (8th Cir. 2012) (recognizing that “[t]he EEOC enjoys significant latitude to investigate claims of discrimination”) (internal quotation marks and citation omitted); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (“the nature and extent of an EEOC investigation . . . is a matter within the discretion of that agency”); Blinded Veterans Ass’n, 128 F. Supp. 3d at 45 (“[T]he role of the courts . . . ought not extend to second-guessing quintessentially executive judgments about who to interview or what information to gather in the course of an [EEOC] investigation.”); EEOC v. Autozone, Inc., 141 F. Supp. 3d 912, 917 (N.D. Ill. 2015) (“[Title VII] requires the EEOC to conduct ‘an investigation’ when it receives a charge . . . but it does not mandate any particular investigative techniques or standards.”); Martin v. EEOC, 19 F. Supp. 3d 291, 303 (D.D.C. 2014) (“Title VII does not provide–and the Court is not aware of–any specific parameters for how the EEOC must conduct an investigation.”); EEOC v. Hibbing Taconite Co., 266 F.R.D. 260, 273 (D. Minn. 2009) (“Courts may only review whether the investigation took place . . . to determine if the EEOC fulfilled the statutory prerequisites to suit.”); EEOC v. NCL Am., Inc., 536 F. Supp. 2d 1216, 1222 (D. Haw. 2008) (stating that the EEOC’s investigation condition precedent “simply requires that some investigation be made” and declining to “inquir[e] into the substance of the EEOC investigation”). Therefore, once the EEOC conducts an investigation, it has satisfied this pre-suit statutory obligation. Defendant has admitted that the EEOC conducted an investigation of Hernandez’s Charge. In its now withdrawn Motion to Dismiss, and the declaration it submitted in support of its Motion from its Chief Financial Officer, Defendant outlined some of the various investigative Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 10 of 25 11 activities that the EEOC performed, such as obtaining a written position statement from Defendant; interviewing several of Defendant’s employees at its corporate headquarters; and requesting the contact information of former employees. Statement of Undisputed Material Facts, at ¶ (A) (2) (a)-(c). Thus, because Defendant has admitted that the EEOC investigated Hernandez’s Charge, any denial or defense related to the investigation condition precedent is plainly untenable and legally insupportable, as all that is required under 42 U.S.C. § 2000e-5(b) is that some investigation occur. See, e.g., EEOC v. AZ Metro Distrbs., LLC, No. 15-cv-5370, 2016 U.S. Dist. LEXIS 176918, at *10-15 (E.D.N.Y. Dec. 20, 2016) (relying on the magistrate judge’s prior conclusion that “there [wa]s no dispute that an investigation . . . occurred in this case, such that argument concerning the propriety and sufficiency of th[is] effort[] would likely be frivolous,” the court granted the EEOC’s motion to strike affirmative defenses that challenged the satisfaction of its pre-suit investigatory duty “[b]ecause there [wa]s no question of fact or law that would [have] allow[ed] the . . . [d]efenses to succeed. . . .”); see also Hibbing Taconite Co., 266 F.R.D. at 273 (denying as futile defendant’s motion to amend its answer to assert “an affirmative defense of tainted investigation and reasonable cause finding” where defendant did not allege that the EEOC failed to investigate a charge). 2. Defendant’s Theory About the Investigation is Legally Insufficient, Immaterial, and Impertinent. Having admitted that the EEOC obtained written and testimonial information from it during the investigation, Defendant intends to argue that EEOC did not fulfill the investigation condition precedent because, in its view, the investigation was “perfunctory” and the investigator “prejudged” the merits of the case. Ex. 1, Mem. in Support of Def.’s Mot. to Dismiss, ECF No. 6-1, at pp. 13, 14; see also Ex. 5, E-mail from Brian A. Scotti, Def.’s Counsel, to Tanisha R. Wilburn, Pl.’s Counsel (May 4, 2017) (stating that the investigator “did not consider all of the Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 11 of 25 12 evidence,” and “had a predetermined outcome in mind”). However, as is explained above, there is no legal challenge available to Defendant regarding the sufficiency or length of an EEOC investigation or regarding the manner in which it proceeds. A recent example from this district of the futility of a legal challenge to the substance of an EEOC investigation is EEOC v. Blinded Veterans Association, 128 F. Supp. 3d 33 (D.D.C. 2015). Therein, the defendant moved to dismiss the complaint based, in part, on accusations that the EEOC had failed to conduct “a genuine and independent investigation.” Id. at 45. In denying defendant’s motion, the Court noted the absence of “any statutory language or controlling precedent requiring the EEOC to engage in further investigative efforts” when, by defendant’s own admission, investigative activity had occurred. Id. And it characterized defendant’s allegation regarding the impartiality of the EEOC investigation as “ask[ing] that the Court take on a supervisory role that has no basis in [the statute] or any relevant precedent.” Id. at 46. As a result, it rejected defendant’s claims. Id.; see also Keco Indus., 748 F.2d at 1100 (concluding that “[i]t was error for the district court to inquire into the sufficiency of the Commission’s investigation”); Martin, 19 F. Supp. 3d at 304 (holding that the court lacked authority to order the EEOC to conduct additional investigative activities because “the scope of an EEOC investigation is wholly within the discretion of that agency”); EEOC v. JBS USA, LLC, 940 F. Supp. 2d 949, 964, 965 (D. Neb. 2013) (concluding that the court could not review “the substantive findings of [an EEOC] investigation” in response to defendant’s allegations that the investigation was “incomplete, careless, or one-sided” and a “sham enterprise undertaken to reach a predetermined conclusion”) (internal quotations marks and citations omitted); EEOC v. Gold River Operating Corp., No. 2:04-cv-01349, 2007 U.S. Dist. LEXIS 24597, at *10 (D. Nev. Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 12 of 25 13 Mar. 30, 2007) (“[A]n employer may not litigate the adequacy of the EEOC’s investigation or determination.”). Similar to the scenario in Blinded Veterans, here, Defendant, unhappy about being sued, wants to litigate the manner in which the EEOC conducted its investigation. See Ex. 1, Mem. in Support of Def.’s Mot. to Dismiss, ECF No. 6-1, at pp. 13, 14 (describing the EEOC’s investigation as “perfunctory” and alleging that the EEOC “prejudged” Defendant’s liability during the investigation); see also Ex. 5, E-mail from Brian A. Scotti, Def.’s Counsel, to Tanisha R. Wilburn, Pl.’s Counsel (May 4, 2017) (stating that “the investigator did not consider all of the evidence, had a predetermined outcome in mind, and as a result, the investigation was a sham”). However, as the Blinded Veterans court and other courts have recognized when evaluating similar arguments, Defendant lacks a statutory basis to challenge the manner or sufficiency of the EEOC’s investigation and its invitation to the Court to oversee this function should be rejected. Further, as Defendant has conceded that the EEOC performed an investigation, its challenge to the EEOC’s fulfillment of the investigation condition precedent really amounts to a challenge to the outcome of the investigation—the reasonable cause finding that led to this lawsuit. However, it is well-settled that the EEOC’s administrative findings are not judicially reviewable. See, e.g., Borg-Warner Protective Servs. Corp., 245 F.3d at 835-36 (in a case brought under the Administrative Procedures Act, the court held that the findings in an EEOC Letter of Determination were not subject to judicial review); AT&T, 270 F.3d at 975 (same); Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (holding that EEOC’s reasonable cause determination is not subject to review by a court as a final agency action because the determination, “[s]tanding alone, . . . is lifeless, and can fix no obligation nor impose any liability Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 13 of 25 14 on the [employer]. It is merely preparatory to further proceedings. If and when the EEOC . . . files suit . . . , the issue of discrimination will come to life, and the [employer] will have the opportunity to refute the charges.”); EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 397 (E.D. Cal. 2009) (“[A]n EEOC lawsuit is a trial de novo and EEOC’s investigation is not subject to court review.”); Hibbing Taconite, 266 F.R.D. at 271 (stating that “the basis for the issuance of a cause finding is not a justiciable matter in th[e] litigation, since the EEOC must prove, at Trial, that the alleged discrimination against [the victim] did, in fact, occur”). Thus, the remedy for Defendant’s dissatisfaction with the EEOC’s investigation is to allow the trial to proceed where it can challenge the EEOC’s claims on the merits. See, e.g., AT&T, 270 F.3d at 975 (explaining that the appropriate remedy to address an EEOC lawsuit allegedly filed in error would not be for the company to challenge the investigation, but instead “simply defend itself against the suit”); EEOC v. Gen. Elec., 532 F.2d 359, 370 (4th Cir. 1976) (stating that if the employer is dissatisfied with the EEOC’s administrative process it “still has the chance to present its side of the story in court”) (internal quotation marks and citation omitted); Hibbing Taconite Co., 266 F.R.D. at 273 (where defendant alleged that the EEOC improperly conducted its investigation, the court concluded that “[w]hether the determination was made in error is an issue for the Trial”); Gold River Operating Corp., 2007 U.S. Dist. LEXIS 24597, at *12 (“The remedy for an alleged defect in the EEOC’s investigation . . . is a trial on the merits of the complaint in the district court.”); EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241, 252 (N.D. Ill. 1980) (recognizing that even if the EEOC’s investigation was conducted improperly, “a trial do [sic] novo of the Title VII claims . . . will attenuate any taint flowing” from the conduct during the investigation). Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 14 of 25 15 Because Defendant’s pursuit of an investigation-based denial and affirmative defense will do nothing more than cause prejudice to the EEOC by requiring it to “wast[e] unnecessary time and money litigating [an] invalid defense” this Court should grant the EEOC’s motion. Tailwind Sports Corp., 308 F.R.D. at 4. 3. The Court Should Strike the Investigative Condition Precedent Defense Because Discovery of EEOC’s Pre-Determination Assessments of Hernandez’s Charge Is Protected by the Deliberative Process Privilege. Instead of defending its case on the merits, Defendant clearly intends to make this lawsuit about the EEOC Investigator, and more specifically, about his analysis of the evidence and how, when, and why he arrived at the decision to recommend a reasonable cause finding to the Acting Director of the Washington Field Office. See Ex. 1, Mem. in Support of Def.’s Mot. to Dismiss, ECF No. 6-1 at p. 13 (stating that “[r]ather than gathering information to determine if there was reasonable cause to believe Hernandez’s allegations are true . . . the EEOC investigator had already prejudged CRC. . . .”); Ex. 5, E-mail from Brian A. Scotti, Def.’s Counsel, to Tanisha R. Wilburn, Pl.’s Counsel (May 4, 2017) (stating that Defendant “intend[s] to seek discovery on the topic” of the Investigator’s “predetermined outcome” and “sham” investigation). However, this information is not discoverable because the EEOC’s pre-determination assessments of Hernandez’s Charge are protected by the deliberative process privilege6, which “protects material disclosing the deliberative process, including evaluations, expressions of opinion, and policy recommendations.” Walker v. NCNB Nat'l Bank, 810 F. Supp. 11, 13 (D.D.C. 1993). The Supreme Court has long recognized the government’s right to invoke the privilege with respect to certain intra-agency documents and communications to protect the quality of the government’s 6 The Investigator does not have authority to make a reasonable cause finding. Rather he or she must make a recommendation to the Office Director, who is the official who makes determinations finding reasonable cause and issues letters of determination. See Ex. 2, Weinstein Decl. at ¶ 2. Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 15 of 25 16 decisions. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (stating that the privilege is necessary because “frank discussions of legal or policy matters . . . might be inhibited if the discussion were made public; and . . . the decisions and policies formulated would be the poorer as a result”) (internal quotation marks and citation omitted). Although the privilege is usually invoked to prohibit the disclosure of documents, “courts have applied the privilege to testimony as well as documents and have made no distinction in the application of the privilege with respect to the two kinds of evidence.” EEOC v. Albertson's LLC, No. 06-cv- 01273, 2008 U.S. Dist. LEXIS 95146, at *3 (D. Colo. Nov. 12, 2008) (internal quotation marks and citation omitted). In the context of EEOC investigations, courts have consistently concluded that documents and/or the testimony of EEOC employees that relate to the EEOC’s opinions, recommendations, or impressions during an investigation are subject to the deliberative process privilege. See, e.g., EEOC v. Presrite Corp., No. 11-cv-260, 2012 U.S. Dist. LEXIS 136094, at *7 (N.D. Ohio Sep. 24, 2012) (limiting an EEOC’s investigator’s testimony to factual information during a deposition because “‘[c]onclusions,’ ‘interpretations,’ ‘impressions,’ or ‘recommendations’ formulated by the investigator are subject to the [deliberative process] privilege”); Cal. Psychiatric Transitions, 258 F.R.D. at 397 (limiting an EEOC’s investigator’s deposition testimony to the factual material in the investigative file because “any conclusions, interpretations, or recommendations that the investigator formulated would be subject to the [deliberative process] privilege”); Albertson's LLC, 2008 U.S. Dist. LEXIS 95146, at *8 (prohibiting defendant from asking certain questions during an investigator’s deposition that “would have inquired of [the investigator’s] understanding of why the EEOC made its no cause determination” because “[t]hat information would reveal [the investigator’s] understanding of the Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 16 of 25 17 EEOC’s predecisional deliberative process, including the relative importance of some facts over others” and it would “reveal the give and take of the consultive process concerning the EEOC’s investigation and decision of whether and how to pursue an enforcement action. . . .”); see also Martin, 19 F. Supp. 3d at 306 (concluding that the EEOC properly redacted a memorandum written by an EEOC investigator to the Office Director pursuant to Exemption (b)(5) of the Freedom of Information Act (FOIA) because the “memorandum represents [the investigator’s] recommendation to her director about the disposition of that charge and that recommendation does not bind the director”; thus, the document “reflects advisory opinions, recommendations, and deliberations . . . by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency’s adoption of a policy”) (internal quotation marks and citation omitted). As a result, defendants in EEOC litigation are foreclosed from inquiring into the investigator’s mental processes. Prior to filing this Motion, Defendant confirmed that it would be seeking discovery regarding the Investigator’s evaluation of the evidence. See Ex. 5, E-mail from Brian A. Scotti, Def.’s Counsel, to Tanisha R. Wilburn, Pl.’s Counsel (May 4, 2017) (stating that it “intend[s] to seek discovery” on the EEOC’s investigation; specifically, its allegations that “the investigator did not consider all of the evidence, had a predetermined outcome in mind” and, that “the investigation was a sham”). To prove its investigation-based condition precedent defense, i.e., that the EEOC “prejudged” the Defendant’s liability during the investigation, Defendant will be required to seek information related to the substance of the EEOC’s pre-determination assessments and opinions of Hernandez’s Charge. Because such information and/or testimony by an EEOC employee will be subject to the deliberative process privilege, the pursuit of this defense will be fruitless.7 7 This defense is also immaterial under Rule 12 (f) because alleged conversations between the EEOC’s Investigator and Defendant’s CFO about the EEOC’s settlement processes have “no Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 17 of 25 18 Moreover, the EEOC will be prejudiced by having to waste unnecessary time and effort in seeking a protective order to prevent Defendant from obtaining discovery into privileged deliberative information.8 Therefore, the Court should preclude Defendant from pursuing an investigation-based condition precedent defense to prevent the unnecessary expenditure of time and resources in this litigation. B. Defendant’s Defense Based on EEOC’s Satisfaction of the Conciliation Condition Precedent Is Foreclosed by Admissions in the Answer Demonstrating that EEOC Met the Supreme Court’s Standard for Title VII Conciliation. The Court should strike Defendant’s conciliation-based denial and affirmative defense from its Answer because it is undisputed that the EEOC satisfied the Mach Mining conciliation standard.9 1. The EEOC’s Conciliation Efforts are Subject to Limited Judicial Review Based on the Mach Mining Decision. Title VII requires the EEOC to attempt to remedy discriminatory policies and/or practices through the conciliation process before filing suit. See 42 U.S.C. § 2000e-5(b); see id. § 2000e- 5(f)(1) (recognizing that if the Commission is “unable to secure from the respondent a conciliation agreement acceptable to the Commission” it may discontinue the process and file suit). In Mach Mining, LLC v. EEOC, the Supreme Court held that any judicial review of the EEOC’s pre-suit conciliation requirement must be extremely limited. 135 S. Ct. 1645, 1653 possible bearing on the controversy,” i.e., whether Defendant discriminated against Hernandez based on his sex in violation of Title VII. Fannie Mae, 161 F. Supp. 3d at 983. 8 As a matter of course, the EEOC produces the nonprivileged contents of its investigative file as part of the discovery process. 9 Defendant did not comply with the EEOC’s request that it amend its Answer to clarify that its denial in paragraph 11 and the ninth defense did not challenge the EEOC’s satisfaction of the conciliation condition precedent. See Ex. 6, E-mail from Tanisha R. Wilburn, Pl.’s Counsel, to Brian A. Scotti, Def.’s Counsel (May 5, 2017). Therefore, out of an abundance of caution, the EEOC is requesting that the Court strike all defenses in the Answer based on the satisfaction of conditions precedent—i.e., investigation and conciliation. Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 18 of 25 19 (2015). The inquiry must only determine (1) whether the EEOC informed the employer about the specific allegation at issue, which is usually done in a letter of determination; (2) whether the letter of determination “describe[d] both what the employer has done and which employees (or what class of employees) have suffered as a result”; and (3) whether the EEOC “engage[d] the employer in some form of discussion (whether written or oral) as to give the employer the opportunity to remedy the allegedly discriminatory practice.” Id. at 1655-56. The Supreme Court recognized that a “relatively barebones review” is necessary to ensure that the EEOC can exercise its “expansive” statutorily conferred discretion “to decide how to conduct conciliation efforts and when to end them.” Id. at 1656. Since Mach Mining, various federal courts have applied the “relatively barebones review” set forth by the Supreme Court and, in so doing, have rejected employer challenges to the conciliation requirement. See, e.g., Ariz., ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1199-1200 (9th Cir. 2016); EEOC v. UPS, No. 15-cv-4141, 2017 U.S. Dist. LEXIS 34929, at *19-20 (E.D.N.Y. Mar. 9, 2017); EEOC v. Western Distrib. Co., No. 1:16-cv-012727, 2016 U.S. Dist. LEXIS 160993, at *14-18 (D. Colo. Nov. 21, 2016); EEOC v. E. Columbus Host, LLC, No. 2:14-cv-1696, 2016 U.S. Dist. LEXIS 118993, at *30-33 (S.D. Ohio Sept. 2, 2016); EEOC v. Mach Mining, LLC, 161 F. Supp. 3d 632, 637 (S.D. Ill. 2016); EEOC v. Dimensions Healthcare Sys., 188 F. Supp. 3d 517, 521-22 (D. Md. 2016); EEOC v. Bass Pro Outdoor World, 826 F.3d 791, 804-805 (5th Cir. 2016); EEOC v. Lawler Foods, Inc., No. 4:14-cv-03588, 2015 U.S. Dist. LEXIS 167178, at *4-9 (S.D. Tex. Dec. 4, 2015); EEOC v. Amsted Rail Co., 169 F. Supp. 3d 877, 885-86 (S.D. Ill. 2015); EEOC v. Celadon Trucking Servs., No. 1:12-cv-00275, 2015 U.S. Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 19 of 25 20 Dist. LEXIS 84639, at *90-93 (S.D. Ind. June 30, 2015); see also Blinded Veterans, 128 F. Supp. 3d at 43, 44.10 2. Defendant’s Conciliation Denial and Affirmative Defense are Self- Defeating and Legally Insufficient. In its Answer, Defendant admits that the EEOC has satisfied all of the Mach Mining conciliation requirements. Defendant admits that the EEOC issued a Letter of Determination (“LOD”). See Statement of Undisputed Material Facts, at ¶ (B) (1). Therein, the EEOC informed Defendant that there was reasonable cause to believe that it had violated Title VII by subjecting Alejandro Hernandez to a sex-based hostile work environment. Id. at ¶ (B) (2); see also Ex. 2, Weinstein Decl. at Attach. A. Therefore, Defendant has admitted that the EEOC has satisfied the “notice” requirement for conciliation. See Mach Mining, 135 S. Ct. at 1655-56 (“[T]he EEOC must inform the employer about the specific allegation, as [it] typically does in a letter announcing its determination of ‘reasonable cause.’”) (citation omitted). Additionally, Defendant admits that, in the LOD, the EEOC “invited Defendant to join with the Commission in informal methods of conciliation”; that the EEOC engaged in “some communication with Defendant in an attempt to reach a resolution regarding purported allegations of discrimination”; that Defendant “did not enter into a final conciliation agreement with [the EEOC]”; and that “the Commission issued Defendant a Notice of Failure of Conciliation.” Statement of Undisputed Material Facts, at ¶ (B) (3) - (6). Therefore, Defendant has admitted that the EEOC satisfied the 10 In Blinded Veterans, that defendant’s motion to dismiss alleging EEOC’s failure to satisfy conciliation requirements was briefed before Mach Mining was decided; moreover, the ADEA does not contain the confidentiality requirements relating to conciliation that are found in Title VII. Therefore, the record before the court was more extensive than the limited record that Mach Mining now requires. See Blinded Veterans, 128 F. Supp. 2d at 44, 45 (noting that the court’s evaluation of the administrative record “may exceed what the Court contemplated in Mach Mining” and recognizing that “a less substantial review of the record . . . may be sufficient and appropriate”). Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 20 of 25 21 Mach Mining requirement that the parties “engage . . . in some form of discussion (whether written or oral).” 135 S. Ct. at 1656. As it is undisputed that the EEOC met all of the Mach Mining requirements for conciliation, a denial and defense based on satisfaction of the conciliation condition precedent are foreclosed by controlling Supreme Court precedent and must be stricken as “legally insufficient.” Prod. Fabricators, 873 F. Supp. 2d at 1097; see also UPS, 2017 U.S. Dist. LEXIS 34929, at *28-29 (recommending that the EEOC’s motion to strike defendant’s conciliation defense be granted where it was undisputed that the EEOC engaged in the conciliation process and, given the limited nature of judicial review of the duty to conciliate, there was “potential prejudice to the EEOC in litigating the issue further”); AZ Metro Distrbs., LLC, 2016 U.S. Dist. LEXIS 176918, at *10-15 (relying on the magistrate judge’s prior conclusion that “there [wa]s no dispute that . . . an attempt at conciliation occurred in this case, such that argument concerning the propriety and sufficiency of th[is] effort[] would likely be frivolous,” the court granted the EEOC’s motion to strike affirmative defenses that challenged the satisfaction of its conciliation obligations “[b]ecause there [wa]s no question of fact or law that would [have] allowed the . . . [d]efenses to succeed. . . .”); EEOC v. Rosebud Rests., Inc., No. 13-cv-6656, 2015 U.S. Dist. LEXIS 138342, at *2 (N.D. Ill. Oct. 7, 2015) (striking a conciliation defense as “insufficient as a matter of law”). II. If the Court Declines to Strike Paragraph 11 and the Ninth Defense in the Answer, it Should Grant Partial Summary Judgment on the Issue of Whether EEOC Satisfied the Administrative Conditions Precedent to Suit. In the alternative, this Court should grant partial summary judgment to the EEOC on the issue of fulfillment of the conditions precedent to suit because there are no genuine issues of material fact and the EEOC is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a). “Summary judgment is appropriate when the pleadings, affidavits, exhibits, and other evidence Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 21 of 25 22 before the Court demonstrate that there is no genuine issue of material fact in dispute, and that the movant is entitled to judgment as a matter of law.” Riddick v. Holland, 134 F. Supp. 3d 281, 284 (D.D.C. 2015) (internal quotation marks and citation omitted). The moving party has the burden to demonstrate that there are no material facts in dispute. Id. at 284 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). “In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial.” Coulibaly v. Kerry, No. 14-cv-0189, 2016 U.S. Dist. LEXIS 135154, at *84 (D.D.C. Sept. 30, 2016). A. There is No Genuine Issue of Material Fact that the EEOC Investigated Hernandez’s Charge. As explained above, under Title VII, the Commission is only required to “make an investigation” of a charge to satisfy its pre-suit duty to investigate. 42 U.S.C. § 2000e-5(b). Here, it is undisputed that the EEOC investigated Hernandez’s Charge. See Statement of Undisputed Material Facts, at ¶ (A) (2) (a)-(c) (describing the EEOC’s investigative activities after Hernandez filed his Charge). Instead, the Defendant is challenging the sufficiency and outcome of the investigation, which are not subject to judicial review. See, e.g., Keco Indus., 748 F.2d at 1100 (“It was error for the district court to inquire into the sufficiency of the Commission’s investigation.”); JBS USA, LLC, 940 F. Supp. 2d at 964, 965 (concluding that the court could not review “the substantive findings of [an EEOC] investigation” in response to defendant’s allegations that the investigation was “incomplete, careless, or one-sided” and a “sham enterprise undertaken to reach a predetermined conclusion”) (internal quotations marks and citations omitted); Gold River Operating Corp., 2007 U.S. Dist. LEXIS 24597, at *10 (“[A]n employer may not litigate the adequacy of the EEOC’s investigation or determination.”). Therefore, because the “sufficiency” of the EEOC’s investigation is not material to the issue of whether or not an investigation occurred, which is all that is required under Title VII, the Court Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 22 of 25 23 should grant partial summary judgment on the issue of the EEOC’s pre-suit duty to investigate where it is undisputed that the EEOC fulfilled its statutory obligation. B. There is No Genuine Issue of Material Fact that the EEOC Fulfilled Its Pre-Suit Obligation to Attempt Conciliation. As discussed above, the Mach Mining Court only requires the EEOC to do the following during the conciliation process: (1) inform the employer about the specific allegation at issue, which is usually done in a letter of determination; (2) ensure that the letter of determination “describes both what the employer has done and which employees (or what class of employees) have suffered as a result;” and (3) “engage the employer in some form of discussion (whether written or oral) as to give the employer the opportunity to remedy the allegedly discriminatory practice.” 135 S. Ct. at 1655-56. And as discussed above, Defendant has admitted in its Answer that the EEOC satisfied all of these requirements. See Statement of Undisputed Material Facts, at ¶ (B) (1) - (6). Because it is undisputed that the EEOC fulfilled its statutory duty to attempt conciliation of Hernandez’s Charge prior to filing this lawsuit, this Court should grant partial summary judgment as to the conciliation issue. See, e.g., Dimensions Healthcare Sys., 188 F. Supp. 3d at 522 (granting the EEOC’s motion for partial summary judgment as to the conciliation issue where the evidence it submitted—the Letter of Determination and a declaration from its Office Director describing its conciliation efforts—was sufficient to establish that it satisfied its statutory burden); Mach Mining, LLC, 161 F. Supp. 3d at 638 (granting the EEOC’s motion for partial summary judgment on its conciliation efforts where it “met the two part test set out by” the Mach Mining Court by demonstrating that it gave the defendant proper notice, and that it “engaged in oral and written communications with [the defendant] to provide [it] with the opportunity to remedy discriminatory practices”); Lawler Foods, Inc., 2015 U.S. Dist. LEXIS 167178, at *5-9 (granting the EEOC’s motion for partial summary judgment on its duty to Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 23 of 25 24 conciliate where the undisputed evidence demonstrated that the EEOC satisfied the Mach Mining requirements, and “[n]o further judicial inquiry [wa]s permitted”). CONCLUSION For the reasons set forth above, Defendant’s conditions precedent denial in Paragraph 11 of its Answer and its ninth defense therein are insufficient, impertinent, and immaterial and therefore should be stricken from its Answer pursuant to Fed. R. Civ. P. 12 (f). In the alternative, the EEOC is entitled judgment as a matter of law on the denial and ninth defense in the Answer pursuant to Fed. R. Civ. P. 56 (a). Respectfully Submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION /s/ Debra Lawrence Debra Lawrence Regional Attorney /s/ Maria Luisa Morocco Maria Luisa Morocco Supervisory Trial Attorney EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0724 maria.morocco@eeoc.gov /s/ Tanisha R. Wilburn Tanisha R. Wilburn Trial Attorney U.S. EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0712 tanisha.wilburn@eeoc.gov Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 24 of 25 25 CERTIFICATE OF SERVICE I, Tanisha R. Wilburn, hereby certify that on May 19, 2017, the foregoing was served via electronic mail and ECF to: Brian A. Scotti Courtney R. Abbott Gordon Rees Mansukhani & Scully, LLP 1300 I Street, NW, Suite 825 Washington, D.C. 20005 Phone: (202) 399-1009 bscotti@gordonrees.com cabbott@gorondrees.com Counsel for Defendant /s/ Tanisha R. Wilburn Tanisha R. Wilburn Trial Attorney U.S. EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0712 tanisha.wilburn@eeoc.gov Case 1:16-cv-02477-BAH Document 18-1 Filed 05/19/17 Page 25 of 25 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA U.S. EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, ) ) ) No. 1:16-cv-02477-BAH ) ) Plaintiff. ) ) v. ) ) CAPITAL RESTAURANT CONCEPTS, LTD., ) d/b/a PAOLO’S – GT LLC ) ) ) Defendant. ) ) RULE 7(H) STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Local Rule 7(h) of the United States District Court for the District of Columbia, Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”), presents the following statement of undisputed material facts in support of its Motion for Partial Summary Judgment: A. The EEOC’s Investigation of Hernandez’s Charge 1. More than thirty days prior to the filing of this lawsuit, Alejandro Hernandez (“Hernandez”) filed a Charge of Discrimination with the EEOC against Defendant Capital Restaurant Concepts Ltd. (“Defendant”). Compl., ECF No. 1 at ¶ 6; Answer, ECF No. 16 at ¶ 6. 2. The EEOC’s investigation of the Hernandez Charge included: a. obtaining a written position statement from Defendant, Ex. 1, Mem. in Support of Def.’s Mot. to Dismiss, ECF No. 6-1, at pp. 2, 13; Case 1:16-cv-02477-BAH Document 18-2 Filed 05/19/17 Page 1 of 4 2 b. interviewing Defendant’s current employees at an onsite that took place at Defendant’s corporate headquarters, id.; Ex. 1, Attach. A, Declaration of M. Craft (“Craft Decl.”) at ¶ 4; and c. after the onsite, requesting that Defendant provide contact information for its former Area Director, former General Manager, and former Executive Chef. Id. at ¶ 8. B. The EEOC’s Attempt to Conciliate Hernandez’s Charge 1. On August 10, 2016, the Commission issued to Defendant a Letter of Determination (“LOD”). Answer, ECF No. 16 at ¶ 7. 2. The LOD informed Defendant that there was reasonable cause to believe that it had violated Title VII by subjecting Hernandez to a sex-based hostile work environment. See Ex. 2, Declaration of M. Weinstein (“Weinstein Decl.”) at Attach. A. 3. The LOD also “invited Defendant to join with the Commission in informal methods of conciliation.” Answer, ECF No. 16, at ¶ 7; Weinstein Decl. at Attach A. 4. As part of the conciliation process, the EEOC communicated with Defendant “in an attempt to reach a resolution regarding purported allegations of discrimination.” Answer, ECF No. 16 at ¶ 8. 5. Defendant “did not enter into a final conciliation agreement with [the EEOC].” Id. at ¶ 9. 6. On August 26, 2016, the Commission issued Defendant a Notice of Failure of Conciliation. Compl., ECF No. 1 at ¶ 10; Answer, ECF 16 at ¶ 10. Respectfully Submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION /s/ Debra Lawrence Debra Lawrence Regional Attorney /s/ Maria Luisa Morocco Maria Luisa Morocco Supervisory Trial Attorney EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0724 maria.morocco@eeoc.gov Case 1:16-cv-02477-BAH Document 18-2 Filed 05/19/17 Page 2 of 4 3 /s/ Tanisha R. Wilburn Tanisha R. Wilburn Trial Attorney U.S. EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0712 tanisha.wilburn@eeoc.gov Case 1:16-cv-02477-BAH Document 18-2 Filed 05/19/17 Page 3 of 4 4 CERTIFICATE OF SERVICE I, Tanisha R. Wilburn, hereby certify that on May 19, 2017, the foregoing was served via electronic mail and ECF to: Brian A. Scotti Courtney R. Abbott Gordon Rees Mansukhani & Scully, LLP 1300 I Street, NW, Suite 825 Washington, D.C. 20005 Phone: (202) 399-1009 bscotti@gordonrees.com cabbott@gorondrees.com Counsel for Defendant /s/ Tanisha R. Wilburn Tanisha R. Wilburn Trial Attorney U.S. EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0712 tanisha.wilburn@eeoc.gov Case 1:16-cv-02477-BAH Document 18-2 Filed 05/19/17 Page 4 of 4 EXHIBIT 1 Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________ ) U.S. EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION ) ) Plaintiff, ) ) v. ) Case No. 1:16-cv-02477 ) ORAL HEARING REQUESTED CAPITAL RESTAURANT CONCEPTS, LTD. ) d/b/a PAOLO’S - GT LLC ) ) Defendant. ) ________________________________________________) DEFENDANT CAPITAL RESTAURANT CONCEPTS, LTD’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT OR, IN THE ALTERNATIVE, MOTION TO STAY Defendant, Capital Restaurant Concepts, Ltd. (“Defendant” or “CRC”), respectfully moves this Court pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the claim stated against it in Plaintiff’s, the U.S. Equal Employment Opportunity Commission (“EEOC”), Complaint. In the alternative, Defendant respectfully requests that the matter be stayed pending the EEOC’s completion of its pre-suit administrative obligations. For the reasons discussed below, Defendant’s Motion should be granted and the Complaint should be dismissed with prejudice, or the litigation should be stayed pending further investigation and conciliation by the EEOC. FACTUAL BACKGROUND1 Alejandro Hernandez is a gay male. Compl. ¶ 12(a). He worked as a food runner and server at Defendant’s Paolo’s Ristorante from approximately April 2015 to mid-July 2015, at which time he resigned. Compl. ¶¶ 12(b) & (h). As alleged in the Complaint, Hernandez was 1 Defendant denies the factual allegations of discrimination contained in the Complaint. However, on a motion to dismiss, a moving party must accept the opposing party’s allegations of fact as stated, regardless of veracity. Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 1 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 2 of 19 2 subjected to offensive sexual comments and conduct. The alleged sexual comments and conduct to which Hernandez was purportedly subjected to were directed at Hernandez’s sexual orientation rather than his gender. In particular, the EEOC alleges that Hernandez was subjected to a hostile environment because members of Defendant’s staff called him “marica,” and “culero,” both anti-gay epithets, they mocked him using a “falsetto-type voice,” asked him for a kiss, questioned him on how to “turn him straight,” told him he would make a “good prostitute,” made oral sex hand gestures and asked him if he liked to “do it hard or soft.” Compl. ¶¶ 12(b) & (e). The EEOC further alleges that Hernandez complained to his manager and Area Director, and following his complaints, he “was ostracized by his coworkers and thereafter resigned.” Compl. ¶ 12(d)-(h). On or about August 5, 2015, Hernandez filed a Charge of Discrimination with the D.C. Office of Human Rights and the EEOC alleging, among other things, gender discrimination/hostile work environment. Defendant filed a Position Statement in response to the Charge on October 13, 2015, and Defendant then received notice on February 28, 2016, that the EEOC would be conducting an on-site investigation into the charges. The EEOC conducted interviews of Defendant’s employees on March 16, 2016. See Decl. Martin Craft ¶ 4 (Ex. 1). During the interviews and in the middle of the EEOC’s investigation, the EEOC investigator asked Defendant’s Chief Financial Officer if Defendant would be interested in conciliation and suggested that the EEOC was looking for CRC to conduct some training for its employees relating to workplace harassment. See id. ¶ 5. Later in July 2016, the investigator asked Defendant for Hernandez’ pre-tax gross income when employed at Paolo’s Ristorante, presumably to calculate an award to Hernandez. See id. ¶ 9. On August 10, 2016, the EEOC Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 2 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 3 of 19 3 issued to Defendant a Letter of Determination finding reasonable cause to believe that it violated Title VII and inviting Defendant to “join with the Commission in informal methods of conciliation.” Compl. ¶ 7. Within sixteen days, on August 26, 2016, the Commission issued a Notice of Failure of Conciliation. Compl. ¶ 10. The EEOC subsequently filed the instant suit purporting to allege violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (“Title VII”) for discrimination based on sexual orientation. ARGUMENT A. The Complaint Should Be Dismissed for Failure to State a Claim. 1. Standard of Review “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim for relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (U.S. 2007)) (internal quotations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). While courts are to presume the truth of all factual allegations in the complaint, they need not and should not accept “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)) (brackets in original). Courts are also “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 3 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 4 of 19 4 2. Title VII Does Not Prohibit Discrimination Based Upon Sexual Orientation. Discrimination in the workplace based upon sexual orientation is deplorable. Indeed, it is unlawful under several state anti-discrimination employment laws, including the District of Columbia Human Rights Act. See D.C. Code § 2-1402.11. Nevertheless, sexual orientation is not a protected class under Title VII. By its Complaint, the EEOC purports to state a claim of discrimination based on sexual orientation. However, Title VII only prohibits discrimination based on an individual’s race, color, religion, sex, or national origin. Sexual orientation is not a specified protected trait. Accordingly, the Complaint should be dismissed for failure to state a claim. Statutory interpretation must begin with the plain language of the statute and the assumption that the ordinary meaning of the words used accurately reflect the legislative intent. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (citing Engine Mfrs. Assn. v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)). When the words of the statute are clear and unambiguous, according to their commonly understood meaning, the Court’s inquiry should cease. See Sebelius v. Cloer, 133 S. Ct. 1886, 1895 (2013). Moreover, it is “improper to conclude that what Congress omitted from the statute is nevertheless within its scope.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). Title VII clearly and unambiguously enumerates the categories of classes it protects. The plain language of the statute belies any interpretation that it protects one who is discriminated against based on his or her sexual orientation. Section 2000e-2(a), prohibits an employer from discriminating “because of such individual’s race, color, religion, sex, or national origin.” 42 Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 4 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 5 of 19 5 U.S.C. 2000e-2(a) (emphasis added). Notably, the statute does not include sexual orientation within those specified classes. Moreover, ‘sex’ is not synonymous with ‘sexual orientation.’ It is a maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning. See Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). Under its ordinary meaning, sex refers to gender, i.e., the biological make- up as a male or female. See Merriam-Webster.com, Merriam-Webster, n.d. (Mar. 8, 2017) (defining sex as “either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male especially on the basis of their reproductive organs and structures.”; see, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (discussing sex discrimination as discrimination based on one’s gender). To the contrary, sexual orientation refers to one’s sexual preferences. Furthermore, if Congress intended for sexual orientation to be a protected class it could have added the necessary language. See Nassar, 133 S. Ct. at 2529 (noting that “If Congress had desired to make the motivating-factor standard applicable to all Title VII claims, it could have used language similar to that which it invoked in § 109.”). In fact, Congress has specifically and repeatedly rejected legislation that would have extended Title VII to protect an individual from discrimination based on his or her sexual orientation. See, e.g., Employment Nondiscrimination Act of 1996, S. 2056, 104th Cong. (1996); Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong. (1995); Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994). The Court cannot ignore Congress’ decision not to amend Title VII to include sexual orientation as a protected class. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009). Rather, the Court must give effect to the words used and presume that Congress acted Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 5 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 6 of 19 6 intentionally in drafting the statute. See Nassar, 133 S. Ct. at 2530; Gross, 557 U.S. at 175. It would be inappropriate and beyond the province of the judiciary to add language to Title VII to include sexual orientation as a protected class. See Nassar, 133 S. Ct. at 2528 (“Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.”); Hinton v. Va. Union Univ., Civil Action No. 3:15cv569, 2016 U.S. Dist. LEXIS 95049, at *4 (E.D. Va. July 19, 2016) (noting that “if Congress is so inclined, it can either amend Title VII to provide a claim for sexual orientation discrimination or leave Title VII as presently written. It is not the province of unelected jurists to effect such an amendment”). The majority of other circuit courts that have considered the issue have reached the same conclusion that sexual orientation discrimination is not a viable claim under Title VII. See e.g., Ayala-Sepulveda v. Municipality of San German, 671 F.3d 24, 28 (1st Cir. 2012) (quoting Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (explaining that the court “regard[ed] it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation” and courts are required “to construe a statute as glossed by the Supreme Court, not to make moral judgment” and this conclusion is “settled law.”); Hinton v. Va. Union Univ., Civil Action No. 3:15cv569, 2016 U.S. Dist. LEXIS 95049, at *4 (E.D. Va. July 19, 2016) (holding that “it is explicitly the law of the Fourth Circuit that Title VII does not protect against discrimination based on sexual orientation.”) (citing Murray v. N. Carolina Dep't of Pub. Safety, 611 F. App'x 166 (4th Cir. 2015)); Brodzki v. Bryson, No. 3:12-CV-3638-B (BF), 2012 U.S. Dist. LEXIS 183371, at *16 (N.D. Tex. Nov. 29, 2012) (explaining it is "settled law that, as drafted and authoritatively Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 6 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 7 of 19 7 construed, Title VII does not proscribe harassment simply because of sexual orientation.”); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (holding “[d]ischarge for homosexuality is not prohibited by Title VII”); Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012) (holding under Title VII, sexual orientation is not a protected classification, thus, harassment or discrimination based upon a person’s sexual orientation cannot form the basis of a cognizable claim. Moreover, teasing and name-calling, while inappropriate in a professional environment, are insufficient to state a claim for sexual harassment); Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 699 (7th Cir. 2016) (“without U.S. Supreme Court or Congressional action, sexual orientation is not a protected class under federal law and workplace protections for lesbian, gay, and bisexual workers will not be recognized.”) (quoting Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000) and Hamm v. Weyauwega Milk Prods., 332 F.3d 1058 (7th Cir. 2003)); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (Title VII does not prohibit discrimination against homosexuals); Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206, 1209 (9th Cir. 2001); on appeal, 305 F.3d 1061, 1076 (9th Cir. 2002) (“This type of discrimination, based on sexual orientation, does not fall within the prohibitions of Title VII.”); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007) (This court has “explicitly declined to extend Title VII protections to discrimination based on a person’s sexual orientation.”); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005). Because sexual orientation is not a protected class under Title VII, the Complaint fails to state a claim under Title VII and should be dismissed. 3. The EEOC Fails to State a Claim for Gender-Stereotyping Discrimination. Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 7 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 8 of 19 8 In an unavailing attempt to save its claim, the EEOC tries to fit Mr. Hernandez’s claim of sexual orientation discrimination under a theory of gender stereotyping. However, the EEOC has not alleged sufficient facts to support such a theory. Moreover, courts have routinely rejected attempts to use a sex-stereotyping theory to bring under Title VII what is essentially a claim for discrimination on the basis of sexual orientation. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court recognized that discrimination based on sex stereotyping was actionable under Title VII. See id. at 250-51. The holding in Price Waterhouse does not “establish a cause of action for sex discrimination in every case of sex stereotyping, however. What the Supreme Court recognized is a Title VII action for disparate treatment based on sex stereotyping. Sex stereotyping that does not produce disparate treatment does not violate Title VII.” Schroer v. Billington, 424 F. Supp. 2d 203, 208 (D.D.C. 2006). Specifically, in Price Waterhouse, a female senior manager was denied partnership in part because she did not walk, talk, and dress in a stereotypically feminine way and instead exhibited more stereotypically masculine mannerisms. The Court agreed that such stereotypical attitudes violate Title VII if they lead to an adverse employment decision. See id. at 251. Therefore, under Price Waterhouse, an adverse employment decision based on gender non- conforming behavior and appearance, such as a female appearing or acting more masculine than feminine or vice versa, is impermissible. The Court’s holding in Price Waterhouse was not so broad to encompass theories of discrimination based solely upon one’s sexual orientation. Here, the EEOC fails to allege any facts that Hernandez suffered an adverse employment action or disparate treatment based upon his failure to conform to gender stereotypes. Rather, the facts supporting any examples of purported discriminatory conduct are, on their face, Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 8 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 9 of 19 9 comments that are unequivocally related to Hernandez’s sexual orientation. In particular, the EEOC alleges that Hernandez was subjected to a hostile environment because members of Defendant’s staff called him “marica,” and “culero,” both anti-gay epithets, they mocked him using a “falsetto-type voice,” asked him for a kiss, questioned him on how to “turn him straight,” told he would make a “good prostitute,” made oral sex hand gestures and asked him if he liked to “do it hard or soft.” Compl. ¶¶ 12(b) & (e). These allegations do not relate to Hernandez’s conformity or non-conformity to gender stereotypes. The stereotype associated with the male gender is masculinity. The EEOC makes no factual allegations relating to Hernandez’s masculinity or lack thereof, nor can a reasonable inference be drawn therefrom. Indeed, the EEOC characterizes the nature of the harassment allegedly suffered by Hernandez to be derived from Hernandez’ sexual orientation rather than non-conforming stereotypes. See Compl. ¶ 13 (alleging that the harassment directed at Hernandez was motivated by sex, “in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex; and in that Hernandez, by virtue of his sexual orientation, did not conform to sex stereotypes.”) (emphasis added). The EEOC cannot simply bootstrap protection for sexual orientation discrimination under a theory of sex stereotyping. Other attempts to do so have routinely been rejected by other courts. See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006) (affirming judgment on the pleadings dismissing a Title VII claim and rejecting gay male plaintiff's sex-stereotyping arguments that, in the eye of his co-workers, his sexual practices, whether real or perceived, did not conform to the traditionally masculine role, reasoning that Price Waterhouse applies where gender non-conformity is demonstrable through appearance or behavior); Dawson v. Bumble & Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 9 of 15Case 1:16-cv-0247 -BAH Document 18 3 5 1 10 of 19 10 Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (“Like other courts, we have . . . recognized that a gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’”) (internal quotation omitted); Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) (rejecting a possible sex-stereotyping theory and holding that gay male plaintiff had no claim under Title VII because he made no argument and offered no evidence that he was harassed because of sex and “did not claim that he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave”); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085-87 (7th Cir. 2000) (affirming summary judgment for defendant on Title VII hostile environment claim; rejecting gay male plaintiff's sex-stereotyping theory that his co-workers harassed him because they “perceived him to be too feminine to fit the male image at Ford;” and concluding that the harassment resulted from co-workers’ hostility to plaintiff's sexual orientation). Moreover, even if such comments could be construed as sex-stereotyping, which they cannot, the EEOC has failed to state a claim of sex stereotyping discrimination. As noted, Price Waterhouse recognized actions for disparate treatment based on sex stereotyping. See Schroer v. Billington, 424 F. Supp. 2d 203, 208 (D.D.C. 2006). The EEOC does not state a claim for disparate treatment in the Complaint. In fact, there are no allegations that Hernandez was treated less favorably or any differently than any other employee. Further, the EEOC fails to allege that Hernandez suffered any adverse employment action based on his failure to conform to gender stereotypes. In Price Waterhouse, the plaintiff’s career was directly impacted based on her masculine traits. Despite Ms. Hopkins’ successful two-year effort to secure a $25 million contract with the Department of State, she was nevertheless denied partnership even though her Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 10 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 11 of 19 11 accomplishments exceeded those of the other partnership candidates at Price Waterhouse that year. See Price Waterhouse, 490 U.S. at 234. The EEOC does not allege that Hernandez suffered any adverse employment action because he was perceived as being feminine or unmanly. In fact, the EEOC does not even allege, nor can any inference be drawn, that Hernandez suffered any adverse employment action because of his sexual orientation. Rather, the EEOC alleges that Hernandez “was ostracized by his coworkers and thereafter resigned” following Hernandez’s complaint to Defendant’s Area Director. Compl. ¶ 12(h). The only inference that can be drawn therefrom is that Hernandez resigned because he felt ostracized for making a complaint. The Complaint seeks to set forth a claim for discrimination based on sexual orientation, which as discussed supra is not covered under Title VII. The EEOC’s attempt to bootstrap what is clearly a sexual orientation discrimination claim under a theory of sex-stereotyping should be rejected by this Court. Even under a sex-stereotyping discrimination theory, the Complaint fails and should be dismissed. B. Litigation Should be Stayed Pending Completion of Plaintiff’s Statutory Obligations. The EEOC failed to meets its pre-suit statutory obligations of investigating Hernandez’s charge of discrimination and making an effort to conciliate the charge. Accordingly, the case should be stayed pending the EEOC’s fulfillment of these duties. Before the EEOC may bring an enforcement action under Title VII, it must discharge certain administrative obligations. Amongst other things, the EEOC “shall” investigate any charge of discrimination filed and, if determines that there was reasonable cause to believe that a violation of Title VII occurred, the EEOC must make a good faith effort to conciliate the Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 11 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 12 of 19 12 charges. See 42 U.S.C. § 2000e–5(b). The language enumerating the EEOC’s administrative obligations “is mandatory, not precatory.” Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1645, 1651 (2015). To ensure compliance with the statute, Congress empowered federal courts to review whether the EEOC has fulfilled its pre-suit obligations. See Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1645 (2015). In Mach Mining, LLC v. Equal Employment Opportunity Commission, 135 S. Ct. 1645 (2015), the Supreme Court held that whether the EEOC satisfied its statutory obligation to attempt conciliation prior to filing suit is subject to judicial review. At a minimum, the EEOC “must tell the employer about the claim . . . and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” Id. at 1652. If the EEOC does not take those specified actions, it has not satisfied Title VII's requirement to attempt conciliation. While Mach Mining did not specifically address judicial review of the EEOC’s duty to investigate before filing suit, other circuits have applied the same reasoning to EEOC pre-suit investigations. See, e.g., Equal Emp’t Opportunity Comm'n v. W. Distrib. Co., No. 116CV01727LTBNYW, 2016 WL 6834874, at *7 (D. Colo. Nov. 21, 2016); Equal Emp’t Opportunity Comm’n v. Sterling Jewelers Inc., 801 F.3d 96, 100–01 (2d Cir. 2015). In Equal Employment Opportunity Commission v. Sterling Jewelers Inc., 801 F.3d 96, 100–01 (2d Cir. 2015), the Second Circuit held that the Mach Mining decision empowered federal courts to review whether the EEOC has fulfilled all its pre-suit administrative obligations. The Court stated that “[i]n order to prove that it has fulfilled its pre-suit investigative obligation, the EEOC Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 12 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 13 of 19 13 must show that it took steps to determine whether there was reasonable cause to believe that the allegations in the charge are true.” Id. at 101. Here, the EEOC failed to meet its pre-suit obligations to investigate and conciliate. In particular, Hernandez filed his Charge of Discrimination with the EEOC and D.C. Office of Human Rights on August 4, 2015. Defendant filed a Position Statement in response to the Charge on October 13, 2015, and Defendant then received notice on February 28, 2016, that the EEOC would be conducting an on-site investigation into the charges. The EEOC conducted interviews of Defendant’s employees on March 16, 2016. See Decl. Martin Craft ¶ 4 (Ex. 1). During the interviews and in the middle of the EEOC’s investigation, the EEOC investigator asked Defendant’s Chief Financial Officer if Defendant would be interested in conciliation and suggested that the EEOC was looking for CRC to conduct some training for its employees relating to workplace harassment. See id. ¶ 5. Then, later in July 2016, the investigator asked Defendant for Hernandez’s pre-tax gross income when employed at Paolo’s Ristorante, presumably to calculate an award to Hernandez. See id. ¶ 9. Rather than gathering information to determine if there was reasonable cause to believe Hernandez’s allegations are true, as the EEOC is required to do, the EEOC investigator had already prejudged CRC and assumed the company was responsible for the allegations made by Hernandez in his Charge of Discrimination. Furthermore, the EEOC did not meet its conciliation efforts. As alleged in the Complaint, on August 10, 2016, the EEOC issued to Defendant a Letter of Determination finding reasonable cause to believe that it violated Title VII and inviting Defendant to “join with the Commission in informal methods of conciliation.” Compl. ¶ 7. Within sixteen days, on August Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 13 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 14 of 19 14 26, 2016, the Commission issued a Notice of Failure of Conciliation. Compl. ¶ 10. While there was some communication between the EEOC and Defendant during that time period, a sixteen- day conciliation effort can hardly be considered a true attempt to achieve voluntary compliance. See Mach Mining, LLC, 135 S. Ct. at 1652. The EEOC’s perfunctory investigation, premature judging of the veracity of Hernandez’s Charge of Discrimination, and hasty conciliation effort is evidence that the EEOC failed to meet is pre-suit obligations. The EEOC did not take steps to determine if there was reasonable cause to believe Hernandez’s allegations were true or even make an effort to achieve voluntary compliance with Title VII as it is required to do. Rather, from the time Hernandez’s Charge of Discrimination was filed, the EEOC was only interested in pushing its agenda for obtaining coverage of sexual orientation discrimination under Title VII. See U.S. EQUAL EMP’T OPPORTUNITY COMM’N, Strategic Enforcement Plan, FY 2013-2016 at 9-10 (noting its continuing effort to prioritize developing issues including “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions”); U.S. EQUAL EMP’T OPPORTUNITY COMM’N, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_ workers.cfm (describing the EEOC’s efforts for obtaining coverage for lesbian, gay, bisexual and transgender individuals under Title VII). Indeed, if the EEOC were truly interested in eradicating the purported discriminatory conduct set forth in its Complaint or in Hernandez obtaining relief, it would have allowed Hernandez to proceed with claims under the D.C. Human Rights Act, which explicitly prohibits unlawful discrimination based on sexual orientation. Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 14 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 15 of 19 15 The EEOC did not meet its pre-suit administrative obligations in this case. By rushing to court, the EEOC is attempting to force the Court’s hand in hearing cases that may not exist or could have been resolved, and play the part of legislature by adding words to a statute, which simply are not there. Pursuant to Section 2000e-5(b), the EEOC shall investigate any charges of discrimination filed and, if determines that there was reasonable cause to believe that a violation of Title VII occurred, the EEOC must make a good faith effort to conciliate the charges. See 42 U.S.C. § 2000e-5(b). The EEOC has failed to do both. Accordingly, further litigation should be stayed pending completion of EEOC’s pre-suit administrative obligations. CONCLUSION For the reasons discussed herein and any offered in reply or at a hearing on this matter, Defendant Capital Restaurant Concepts, Ltd. respectfully requests that the Complaint be dismissed with prejudice for failure to state a claim. In the alternative, the case should be stayed pending the EEOC’s fulfillment of its pre-suit administrative obligations. Dated: March 9, 2017 Respectfully submitted, _/s/ Brian A. Scotti_________________ Brian A. Scotti (D.C. Bar# 497125) Courtney R. Abbott (D.C. Bar# 488653) Gordon Rees Mansukhani & Scully, LLP 1300 I Street, NW, Suite 825 Washington, DC 20005 202-399-1009 202-800-2999 bscotti@gordonrees.com cabbott@gorondrees.com Counsel for Defendant Case 1:16-cv-02477-BAH Document 6-1 Filed 03/09/17 Page 15 of 15Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 16 of 19 ATTACHMENT A Case 1:16-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 17 of 19 Case 1:16-cv-02477-BAH Document 6-2 Filed 03/09/17 Page 2 of 3Case 1: 6-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 18 of 19 Case 1:16-cv-02477-BAH Document 6-2 Filed 03/09/17 Page 3 of 3Case 1: 6-cv-02477-BAH Document 18-3 Filed 05/19/17 Page 19 of 19 EXHIBIT 2 Case 1:16-cv-02477-BAH Document 18-4 Filed 05/19/17 Page 1 of 6 Case 1:16-cv-02477-BAH Document 18-4 Filed 05/19/17 Page 2 of 6 Case 1:16-cv-02477-BAH Document 18-4 Filed 05/19/17 Page 3 of 6 ATTACHMENT A Case 1:16-cv-02477-BAH Document 18-4 Filed 05/19/17 Page 4 of 6 Case 1:16-cv-02477-BAH Document 18-4 Filed 05/19/17 Page 5 of 6 Case 1:16-cv-02477-BAH Document 18-4 Filed 05/19/17 Page 6 of 6 EXHIBIT 3 Case 1:16-cv-02477-BAH Document 18-5 Filed 05/19/17 Page 1 of 3 1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington Field Office 131 M Street, N. E., Suite 4NW02F Washington, D. C. 20507 Intake Information Group: (800) 669-4000 Intake Information Group TTY: (800) 669-6820 Washington Status Line: (866) 408-8075 Washington Direct Dial: (202) 419-0713 TTY (202) 419-0702 FAX (202) 419-0740 Website: www.eeoc.gov Tanisha R. Wilburn, Trial Attorney Direct Dial: 202-419-0712 Email: tanisha.wilburn@eeoc.gov May 2, 2017 VIA E-MAIL Brian A. Scotti Gordon & Rees Scully Mansukhani 1300 I Street, N.W., Ste. 825 Washington, D.C. 20005 bscotti@gordonrees.com Re: EEOC v. Capital Restaurant Concepts, Ltd. d/b/a Paolo’s – GT LLC Civil Action No. 1:16-cv-2477-BAH Dear Mr. Scotti: We have reviewed Defendant Capital Restaurant Concepts, Ltd. d/b/a Paolo’s – GT LLC’s (“Defendant”) Answer that you filed on Friday, April 28, 2017, and we have several concerns. Specifically, in Paragraph 11 of the Answer, Defendant denies the allegations in EEOC’s paragraph 11 of its Complaint, which states that “[a]ll conditions precedent to the institution of this lawsuit have been fulfilled.” Also, in Defendant’s Ninth Affirmative Defense, it states that “[t]he claims are barred, in whole or in part, by Plaintiff’s failure to satisfy the statutory and/or administrative prerequisites to the bringing of an action under Title VII. . . .” The factual admissions in the Answer, however, demonstrate that the EEOC has met the Mach Mining conciliation standard and the declaration that the EEOC submitted in support of its Opposition to Defendant’s Motion to Dismiss demonstrates this as well. Additionally, as we noted in our opposition brief, the Defendant has further admitted that the EEOC has met its duty to investigate Hernandez’s charge. As a result, we are requesting that Defendant file an amended answer no later than a week from today, May 2nd, admitting that the EEOC has met its Case 1:16-cv-02477-BAH Document 18-5 Filed 05/19/17 Page 2 of 3 2 administrative conditions precedent to suit and withdrawing its conditions precedent affirmative defense. We would like to confirm that Defendant will take such action this Wednesday, May 3rd, during the meet and confer teleconference. If Defendant fails to withdraw its conditions precedent denial and affirmative defense, the EEOC will move for summary judgment this month on these issues and will likely seek monetary sanctions when the motion is granted. Sincerely, Tanisha R. Wilburn Tanisha R. Wilburn Case 1:16-cv-02477-BAH Document 18-5 Filed 05/19/17 Page 3 of 3 EXHIBIT 4 Case 1:16-cv-02477-BAH Document 18-6 Filed 05/19/17 Page 1 of 2 From: TANISHA WILBURN To: "Brian Scotti" Cc: MARIA MOROCCO; Courtney Abbott Subject: Follow-up to Rule 26(f) Conference Call Date: Wednesday, May 03, 2017 1:03:00 PM Brian, Since you’ll be discussing the conditions precedent issues with your client this week, we wanted to follow-up regarding the issues we outlined in our May 2nd letter. We’re requesting that all defenses relating to conditions precedent be dropped in the Answer and that the Defendant admit that all conditions precedent to suit–including conciliation and investigation--were satisfied. The basis for our position is that the Defendant made admissions in its brief for its motion to dismiss that the EEOC met the Mach Mining conciliation standard and this is further supported by the declaration we submitted with our opposition brief. Additionally, Defendant made admissions in its brief and its declaration that an investigation occurred. According to DC circuit precedent, nothing more is required and courts should not second guess the EEOC’s discretionary role in the investigative process. See e.g., EEOC v. Blinded Veterans Association, 128 F. Supp. 3d 33, 45 (D.D.C. 2015); Martin v. EEOC, 19 F. Supp. 3d 291, 303-304 (D.D.C. 2014); Borg-Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831, 835-36 (D.C. Cir. 2001); AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001). As we discussed, the EEOC is under a May 19th deadline for filing a motion to strike. Therefore, we will need to hear back from you by this Friday, May 5th regarding if (and how) Defendant will amend its Answer regarding the conditions precedent issues and whether such amendment will be filed no later than May 10th. Finally, I also wanted to mention that the EEOC has to file the Joint Report and a Proposed Scheduling Order by May 17th – fourteen days after the 26(f) conference according to LCR 16.3(d). Tanisha Tanisha R. Wilburn Trial Attorney EEOC – Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 (202) 419-0712 Case 1:16-cv-02477-BAH Document 18-6 Filed 05/19/17 Page 2 of 2 EXHIBIT 5 Case 1:16-cv-02477-BAH Document 18-7 Filed 05/19/17 Page 1 of 4 From: Brian Scotti To: TANISHA WILBURN Cc: MARIA MOROCCO; Courtney Abbott Subject: RE: Follow-up to Rule 26(f) Conference Call Date: Thursday, May 04, 2017 3:29:31 PM Tanisha: Thanks for your letter and this follow up email. To be clear, while the EEOC’s conciliation efforts were superficial and perfunctory, CRC does not take exception to that aspect of the EEOC’s pre-suit obligations. Where the disagreement arises is the “investigation” conducted by the EEOC. I have not looked at the cases you cite, but do any of them involve an EEOC investigator attempting to begin conciliation efforts in the middle of an on-site? The fact that the investigator would begin this dialogue when he was supposedly in the middle of the investigation strongly suggests the investigator did not consider all of the evidence, had a predetermined outcome in mind and, as a result, the investigation was a sham. I would hope the facts set forth in the Craft Declaration would trouble you on some level but I understand we all take positions in litigation. With that said, we are not inclined to amend the Answer unless you think it would be beneficial to note that CRC does not take exception to the EEOC’s conciliation efforts. As I mentioned during our Rule 26(f) Conference, the investigation conducted by the EEOC will be an issue in this case and we intend to seek discovery on the topic. I understand the EEOC will be filing a Motion to Strike and Motion for a Protective Order and that is certainly your prerogative. CRC will respond in kind and we will all have to live with what the Court decides. Let me know if you would like to discuss in greater detail. Brian BRIAN A. SCOTTI | Partner GORDON & REES SCULLY MANSUKHANI 1300 I Street, N.W., Suite 825 Washington, DC 20005 D: 202-372-9078 bscotti@gordonrees.com vCard | Bio Alabama | Arizona | California | Colorado | Connecticut | Florida Georgia | Illinois | Maryland | Massachusetts | Missouri | Nevada New Jersey | New York | North Carolina | Ohio | Oklahoma | Oregon Pennsylvania | South Carolina | South Dakota | Texas | Utah | Virginia Washington | Washington, D.C. |West Virginia | Wisconsin www.gordonrees.com P Please consider the environment before printing this email. Case 1:16-cv-02477-BAH Document 18-7 Filed 05/19/17 Page 2 of 4 From: TANISHA WILBURN [mailto:TANISHA.WILBURN@EEOC.GOV] Sent: Wednesday, May 03, 2017 1:03 PM To: Brian Scotti Cc: MARIA MOROCCO; Courtney Abbott Subject: Follow-up to Rule 26(f) Conference Call Brian, Since you’ll be discussing the conditions precedent issues with your client this week, we wanted to follow-up regarding the issues we outlined in our May 2nd letter. We’re requesting that all defenses relating to conditions precedent be dropped in the Answer and that the Defendant admit that all conditions precedent to suit–including conciliation and investigation--were satisfied. The basis for our position is that the Defendant made admissions in its brief for its motion to dismiss that the EEOC met the Mach Mining conciliation standard and this is further supported by the declaration we submitted with our opposition brief. Additionally, Defendant made admissions in its brief and its declaration that an investigation occurred. According to DC circuit precedent, nothing more is required and courts should not second guess the EEOC’s discretionary role in the investigative process. See e.g., EEOC v. Blinded Veterans Association, 128 F. Supp. 3d 33, 45 (D.D.C. 2015); Martin v. EEOC, 19 F. Supp. 3d 291, 303-304 (D.D.C. 2014); Borg-Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831, 835-36 (D.C. Cir. 2001); AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001). As we discussed, the EEOC is under a May 19th deadline for filing a motion to strike. Therefore, we will need to hear back from you by this Friday, May 5th regarding if (and how) Defendant will amend its Answer regarding the conditions precedent issues and whether such amendment will be filed no later than May 10th. Finally, I also wanted to mention that the EEOC has to file the Joint Report and a Proposed Scheduling Order by May 17th – fourteen days after the 26(f) conference according to LCR 16.3(d). Tanisha Tanisha R. Wilburn Trial Attorney EEOC – Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 (202) 419-0712 Alabama * Arizona * California * Colorado * Connecticut * Florida * Georgia * Illinois * Maryland * Massachusetts * Missouri * Nevada * New Jersey * New York * North Carolina * Ohio * Oregon * Pennsylvania * South Carolina * South Dakota * Texas * Virginia * Washington * Washington, DC * West Virginia This email communication may contain CONFIDENTIAL INFORMATION WHICH ALSO MAY BE LEGALLY PRIVILEGED and is Case 1:16-cv-02477-BAH Document 18-7 Filed 05/19/17 Page 3 of 4 intended only for the use of the intended recipients identified above. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited. If you are not the intended recipient and have received this communication in error, please immediately notify us by reply email, delete the communication and destroy all copies. GORDON & REES LLP http://www.gordonrees.com Case 1:16-cv-02477-BAH Document 18-7 Filed 05/19/17 Page 4 of 4 From: TANISHA WILBURN To: "Brian Scotti" Cc: MARIA MOROCCO; Courtney Abbott Subject: RE: Follow-up to Rule 26(f) Conference Call Date: Friday, May 05, 2017 11:20:00 AM Brian, Thank you for your email. The EEOC disputes your characterization of the discussion you witnessed between the investigator and Defendant’s corporate officer. Moreover, when you read the cases cited in our opposition brief, you will see that because an EEOC lawsuit is a de novo proceeding, the Court can only review whether an investigation occurred. The manner in which the investigation proceeded, the mental impressions of the investigator, and the outcome of the investigation are not reviewable. It remains the EEOC’s position that Defendant must remove all denials related to all conditions precedent from its answer, as well as the Ninth Affirmative Defense. If Defendant remains unwilling to do so, it should, at a minimum, amend its answer to clarify its position that it is not challenging the conciliation condition precedent. As we have discussed, the EEOC will be moving to strike from the answer all denials that conditions precedent have been met as well as the Ninth Affirmative Defense. If Defendant is planning to file an amended answer please let us know by COB on Monday, May 8th when this filing will occur, as the EEOC must file a motion to strike within 21 days of the filing of the current answer, or the filing of any amended answer. Thank you. Tanisha From: Brian Scotti [mailto:bscotti@gordonrees.com] Sent: Thursday, May 04, 2017 3:29 PM To: TANISHA WILBURN Cc: MARIA MOROCCO ; Courtney Abbott Subject: RE: Follow-up to Rule 26(f) Conference Call Tanisha: Thanks for your letter and this follow up email. To be clear, while the EEOC’s conciliation efforts were superficial and perfunctory, CRC does not take exception to that aspect of the EEOC’s pre-suit obligations. Where the disagreement arises is the “investigation” conducted by the EEOC. I have not looked at the cases you cite, but do any of them involve an EEOC investigator attempting to begin conciliation efforts in the middle of an on-site? The fact that the investigator would begin this dialogue when he was supposedly in the middle of the investigation strongly suggests the investigator did not consider all of the evidence, had a Case 1:16-cv-02477-BAH Document 18-8 Filed 05/19/17 Page 1 of 3 predetermined outcome in mind and, as a result, the investigation was a sham. I would hope the facts set forth in the Craft Declaration would trouble you on some level but I understand we all take positions in litigation. With that said, we are not inclined to amend the Answer unless you think it would be beneficial to note that CRC does not take exception to the EEOC’s conciliation efforts. As I mentioned during our Rule 26(f) Conference, the investigation conducted by the EEOC will be an issue in this case and we intend to seek discovery on the topic. I understand the EEOC will be filing a Motion to Strike and Motion for a Protective Order and that is certainly your prerogative. CRC will respond in kind and we will all have to live with what the Court decides. Let me know if you would like to discuss in greater detail. Brian BRIAN A. SCOTTI | Partner GORDON & REES SCULLY MANSUKHANI 1300 I Street, N.W., Suite 825 Washington, DC 20005 D: 202-372-9078 bscotti@gordonrees.com vCard | Bio Alabama | Arizona | California | Colorado | Connecticut | Florida Georgia | Illinois | Maryland | Massachusetts | Missouri | Nevada New Jersey | New York | North Carolina | Ohio | Oklahoma | Oregon Pennsylvania | South Carolina | South Dakota | Texas | Utah | Virginia Washington | Washington, D.C. |West Virginia | Wisconsin www.gordonrees.com P Please consider the environment before printing this email. From: TANISHA WILBURN [mailto:TANISHA.WILBURN@EEOC.GOV] Sent: Wednesday, May 03, 2017 1:03 PM To: Brian Scotti Cc: MARIA MOROCCO; Courtney Abbott Subject: Follow-up to Rule 26(f) Conference Call Brian, Since you’ll be discussing the conditions precedent issues with your client this week, we wanted to follow-up regarding the issues we outlined in our May 2nd letter. We’re requesting that all defenses relating to conditions precedent be dropped in the Answer and that the Defendant admit that all conditions precedent to suit–including conciliation and investigation--were satisfied. The basis for our position is that the Defendant made admissions in its brief for its motion to dismiss that the EEOC met the Mach Mining conciliation standard and this is further supported by the declaration we Case 1:16-cv-02477-BAH Document 18-8 Filed 05/19/17 Page 2 of 3 submitted with our opposition brief. Additionally, Defendant made admissions in its brief and its declaration that an investigation occurred. According to DC circuit precedent, nothing more is required and courts should not second guess the EEOC’s discretionary role in the investigative process. See e.g., EEOC v. Blinded Veterans Association, 128 F. Supp. 3d 33, 45 (D.D.C. 2015); Martin v. EEOC, 19 F. Supp. 3d 291, 303-304 (D.D.C. 2014); Borg-Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831, 835-36 (D.C. Cir. 2001); AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001). As we discussed, the EEOC is under a May 19th deadline for filing a motion to strike. Therefore, we will need to hear back from you by this Friday, May 5th regarding if (and how) Defendant will amend its Answer regarding the conditions precedent issues and whether such amendment will be filed no later than May 10th. Finally, I also wanted to mention that the EEOC has to file the Joint Report and a Proposed Scheduling Order by May 17th – fourteen days after the 26(f) conference according to LCR 16.3(d). Tanisha Tanisha R. Wilburn Trial Attorney EEOC – Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 (202) 419-0712 Alabama * Arizona * California * Colorado * Connecticut * Florida * Georgia * Illinois * Maryland * Massachusetts * Missouri * Nevada * New Jersey * New York * North Carolina * Ohio * Oregon * Pennsylvania * South Carolina * South Dakota * Texas * Virginia * Washington * Washington, DC * West Virginia This email communication may contain CONFIDENTIAL INFORMATION WHICH ALSO MAY BE LEGALLY PRIVILEGED and is intended only for the use of the intended recipients identified above. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited. If you are not the intended recipient and have received this communication in error, please immediately notify us by reply email, delete the communication and destroy all copies. GORDON & REES LLP http://www.gordonrees.com Case 1:16-cv-02477-BAH Document 18-8 Filed 05/19/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA U.S. EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, ) ) ) No. 1:16-cv-02477-BAH ) ) Plaintiff. ) ) v. ) ) CAPITAL RESTAURANT CONCEPTS, LTD., ) d/b/a PAOLO’S – GT LLC ) ) ) Defendant. ) ) ORDER Having considered Plaintiff U.S. Equal Employment Opportunity Commission’s Motion to Strike, or in the alternative, Motion for Partial Summary Judgment, and the record herein, it is hereby: ORDERED, that the denial in paragraph 11 and the ninth defense in the Defendant’s Answer [ECF No. 16], are STRICKEN from the pleading. OR ORDERED that Plaintiff’s Motion for Partial Summary Judgment regarding its satisfaction of the conditions precedent to the filing of this lawsuit is GRANTED. SO ORDERED. Date Hon. Beryl A. Howell, Chief Judge Case 1:16-cv-02477-BAH Document 18-9 Filed 05/19/17 Page 1 of 2 2 CERTIFICATE OF SERVICE I, Tanisha R. Wilburn, hereby certify that on May 19, 2017, the foregoing was served via electronic mail and ECF to: Brian A. Scotti Courtney R. Abbott Gordon Rees Mansukhani & Scully, LLP 1300 I Street, NW, Suite 825 Washington, D.C. 20005 Phone: (202) 399-1009 bscotti@gordonrees.com cabbott@gorondrees.com Counsel for Defendant /s/ Tanisha R. Wilburn Tanisha R. Wilburn Trial Attorney U.S. EEOC, Washington Field Office 131 M Street, N.E. Suite 4NW02F Washington, D.C. 20507 Phone: 202-419-0712 tanisha.wilburn@eeoc.gov Case 1:16-cv-02477-BAH Document 18-9 Filed 05/19/17 Page 2 of 2