Fed. R. Evid. 408 prohibits the use of compromise offers and negotiations to prove or disprove the validity or value of a disputed claim or for impeachment. Furthermore, under 42 USCS § 2000e-5(b), an employer is precluded from inquiring into or using conciliation for any purpose. Judicial review is strictly circumscribed.

" A plaintiff filing claims under Title VII must first exhaust his administrative remedies by complying with the procedural requirements set forth in 42 U.S.C. § 2000e-5, before seeking judicial review. See Purvis-Chapman v. Silverstein, No. 14-4252, 2016 U.S. Dist. LEXIS 43324, at *14 (D.N.J. Mar. 31, 2016) (dismissing prose plaintiffs Title VII claim for failure to exhaust administrative remedies).

28(a)(2), and such issuance is not an imprimatur that EEOC believes discrimination has occurred.9 Given these statutory mandates and related deadlines—as well as the terms of the “investigations” portion of the Preliminary Injunction, which is limited to investigations pursuant 9 In charges involving state or local governments as respondents, the EEOC cannot issue the notice of right to sue or file suit; the Department of Justice determines whether to file suit and issues the notice of right to sue for those charges. See 42 USC §2000e-5(f)(1). Case 7:16-cv-00054-O Document 65 Filed 09/12/16 Page 29 of 32 PageID 1304 24 to Title IX—Defendants ask that the Court confirm their understanding that the Preliminary Injunction does not prohibit the EEOC from undertaking these activities in instances where a charging party alleges discrimination based on sex because a transgender person’s gender identity is different from their sex assigned at birth.

But, as part of the same Act, Congress opted to deny punitive damages(indeed, any damages) in cases where a mixed-motive defense is proven. (42 U.S.C. §2000e-5(g)(2)(B)(ii).) Thus, the very same statutory enactment which created the underlying right to seek punitive damagesalso determined, as a matter of Congressional choice, that this particular remedy not be available in mixed-motivecases.

EEOC v. Princeton Healthcare System, No. 10-4126, 2012 U.S. Dist. LEXIS 150267, *14-15 (D.N.J. Oct. 18, 2012) (applicable date was 300 days prior to the date on which the EEOC notified the defendant that it would be expanding its investigation). In this case, the EEOC informed Upstate Niagara on February 13, 2013 that it was expanding its investigation to include “hiring practices” at all Upstate Niagara facilities, although at that time it did not specify what type of discrimination (e.g., sex, race, age, etc.) on which it was focusing, which does not satisfy the notice requirements contained in Section 706(b) of Title VII (42 U.S.C. § 2000e-5(b)). See Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir. 1998) (an EEOC charge that “identifies the type of discrimination complained of, the alleged harasser, and an approximate time period” is “minimally sufficient to satisfy the requirements for the contents of a charge and the purposes of the notice requirement”);

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.

Again, under Title VII, only the Department of Justice can file an enforcement action against a state on behalf of the federal government, and Title VII states that the Department “may” file a civil action when the EEOC refers a case to it, not that it must. 42 USC § 2000e-5(f)(1). But even if the EEOC could file civil enforcement actions against states, the Guidance would not constitute final agency action because it does not bind the EEOC to do so.

Even assuming the alleged conduct occurred on August 31, the last day of the month, Plaintiff had to file his administrative complaint with the EEOC by no later than June 27, 2011—300 days later. 42 U.S.C. § 2000e-5(e)(1). Because he admits in his FAC that he did not file his administrative complaint until August 23, 2011, it is clear that he did not timely exhaust his administrative remedies.

As such, venue for Ms. Griesing’s claims is proper in the Southern District of New York. 42 U.S.C. § 2000e-5(f)(3). Case 2:12-cv-06718-MSG Document 9 Filed 12/12/12 Page 15 of 17 15 V. CONCLUSION For these reasons, Ms. Griesing respectfully requests that this Court dismiss GT’s Petition or transfer this matter to the Southern District of New York.

Rather than proceeding in the District of Arizona, venue would be proper under Title VII in the District of Columbia—where “the unlawful employment practice is alleged to have been committed” and where “employment records relevant to such practice are maintained and administered.” 42 U.S.C. § 2000e-5(f)(3). The Court may transfer this case to the District of Columbia federal district court pursuant to 28 U.S.C. § 1406(a).3 B. Even If Venue in this Court Were Available, Transfer Is Warranted.