Equal Employment Opportunity Commission v. Parker Drilling Company

Filing 322

ORDER RE MOTION FOR PARTIAL SUMMARY JUDGMENT: RE 202 Motion for Summary Judgment is DENIED. RE 204 Motion for Judicial Notice is GRANTED in Part and DENIED in part. (See order for full details). Signed by Judge Sharon L. Gleason on 03/20/2015. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
and
KEVIN D. MCDOWELL,
Intervenor-Plaintiff,
Case No. 3:13-cv-00181-SLG
v.
PARKER DRILLING COMPANY,
Defendant.
ORDER RE MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court at Docket 202 is Parker Drilling’s Motion for Partial Summary
Judgment as to EEOC’s Claims. The EEOC opposed on February 17, 2015, and Parker
Drilling replied on February 27, 2015. 1 Also before the Court at Docket 204 is Parker
Drilling’s Motion for Judicial Notice. Oral argument was not requested on either motion
and was not necessary to the Court’s decision. For the reasons stated below, Parker
Drilling’s motion for partial summary judgment will be denied. Parker Drilling’s motion for
judicial notice will be granted in part and denied in part.
BACKGROUND
In January 2010 Plaintiff-Intervenor Kevin McDowell sought employment with
Parker Drilling’s Alaska operations. Mr. McDowell is blind in his left eye. Parker Drilling

1

Docket 218 (Opp.); Docket 252 (Reply).

extended a conditional offer of employment as a Tool Pusher to Mr. McDowell, but
withdrew that offer after it received the results of a post-offer medical evaluation that found
him unfit for the position based on his visual impairment. 2 Mr. McDowell filed a charge of
discrimination with the EEOC in February 2010. In June 2010 Mr. McDowell and Parker
Drilling participated in a mediated settlement conference that did not include the EEOC
and did not resolve Mr. McDowell’s claims. 3
Between April 2010 and September 2012, the EEOC investigated Mr. McDowell’s
charge. 4 On September 14, 2012, the EEOC issued a determination concluding that
there were sufficient facts to substantiate Mr. McDowell’s charge. 5 The EEOC and Parker
Drilling then exchanged conciliation correspondence in an effort to settle Mr. McDowell’s
charge, the details of which are recounted in the discussion below. On April 12, 2013,
the EEOC informed Parker Drilling that it had “determined that efforts to conciliate . . .
have been unsuccessful.” 6 This suit was filed by the EEOC on September 18, 2013. 7
DISCUSSION
I.

Jurisdiction
This Court has jurisdiction over this matter under 28 U.S.C. § 1331 because it is a
civil action arising under federal law.

2

Docket 1 (Compl.) at 3–4 ¶ 9.

3

Docket 202 (Motion) at 2–3.

4

Docket 203-4 (EEOC Caselog).

5

Docket 203-5 (Determination Letter).

6

Docket 203-12 (Ex. L).

7

Docket 1 (Compl.).

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II.

Legal Standards
Parker Drilling’s primary motion is styled as a motion for partial summary judgment.

However, the Ninth Circuit has held that in civil suits to enforce federal discrimination
laws, “[g]enuine investigation, reasonable cause determination and conciliation are
jurisdictional conditions precedent to suit by the EEOC.” 8 A recent, comprehensive
analysis by the United States District Court for the District of Hawai’i examined whether
the issue of adequate conciliation is a jurisdictional question or a question related to the
merits of an EEOC action. That district court concluded that the issue is one of subject
matter jurisdiction. 9 The Court agrees with that analysis, adopts it, and accordingly treats
Parker Drilling’s motion as a subject matter jurisdictional challenge under Federal Rule of
Civil Procedure (“FRCP”) 12(b)(1).
FRCP 12(b)(1) allows a party to seek dismissal of a complaint for lack of subject
matter jurisdiction. Parker Drilling maintains that the EEOC’s claims against it should be
dismissed due to the EEOC’s failure to meet its prerequisite obligation to adequately
conciliate prior to filing suit under 42 U.S.C. § 2000e-5b.
42 U.S.C. § 2000e-5(b) provides in relevant part:
Whenever a charge is filed by or on behalf of a person
claiming to be aggrieved . . . the Commission shall serve a
notice of the charge (including the date, place and
circumstances of the alleged unlawful employment practice)
on such employer . . . (hereinafter referred to as the
“respondent”) within ten days, and shall make an investigation
thereof. . . . If the Commission determines after such
investigation that there is reasonable cause to believe that the
charge is true, the Commission shall endeavor to eliminate
any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.
8

EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982).

9

EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1038–44 (D. Hawai’i 2012).

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Section 2000e-5(f)(1) provides in relevant part:
If 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 respondent not a government, governmental agency, or
political subdivision named in the charge.
Several circuit courts have interpreted these provisions to create a “failure-to-conciliate
defense.” Within these courts, some circuits evaluate conciliation under a “searching
three-part inquiry” while others require only “a minimal level of good faith” in conciliation
efforts prior to the filing of suit. 10 In contrast to these circuits, the Seventh Circuit has held
that the EEOC’s efforts to conciliate are not subject to judicial review, a holding currently
under review by the Supreme Court. 11 The Ninth Circuit has not addressed this aspect
of § 2000e-5, and the district courts in this circuit have applied various approaches. 12
The split between the circuits and the Supreme Court’s grant of certiorari
demonstrate that reasonable minds have reached different conclusions on the legal
import of § 2000e-5’s conciliation provisions. But this Court need not determine the
contours of § 2000e-5’s requirements if the EEOC’s conciliation attempts with Parker
Drilling in this case meet the most rigorous of the approaches applied by any of the circuits
that have addressed the issue. 13 Accordingly, the Court examines the EEOC’s efforts in
this case under that approach.

10

See EEOC v. Mach Min., LLC, 738 F.3d 171, 182 (7th Cir. 2013) (collecting cases).

11

Id. at 178, cert. granted 134 S. Ct. 2872 (2014).

12

See La Rana Hawaii, 888 F. Supp. 2d at 1044–45 (collecting cases).

13

Cf. id. at 1045 (“The Court need not decide the appropriate standard, because, under either the
deferential approach or [the more rigorous] three-part approach, the Court finds that the EEOC
failed to conciliate in good faith.”).

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The more rigorous approach to evaluating the adequacy of the EEOC’s efforts at
conciliation pursuant to § 2000e-5 applies a three-part inquiry. 14 The Eleventh Circuit has
concisely set out that approach as follows:
To satisfy the statutory requirement of conciliation, the EEOC
must (1) outline to the employer the reasonable cause for its
belief that Title VII has been violated; (2) offer an opportunity
for voluntary compliance; and (3) respond in a reasonable and
flexible manner to the reasonable attitudes of the employer.
In evaluating whether the EEOC has adequately fulfilled this
statutory requirement, the fundamental question is the
reasonableness and responsiveness of the EEOC's conduct
under all the circumstances. 15
In regard to the separate motion for judicial notice, Federal Rule of Evidence 201
permits a court to judicially notice a fact that is not subject to reasonable dispute because
it is generally known within the court’s jurisdiction or can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.
III.

Request for Judicial Notice
Parker Drilling has requested that the Court take judicial notice of a collection of

EEOC press releases, articles, and judicial documents from other courts in support of its
Motion for partial Summary Judgment. For the reasons stated in Parker Drilling’s reply
brief, the Court will grant that request to the extent required to rule on the motion as to all
documents except three. 16 The three excepted documents are (1) a report on EEOCinitiated litigation by law firm Seyfarth Shaw, and (2) two Bloomberg BNA articles
regarding the EEOC. 17 The Court finds that Parker Drilling has failed to demonstrate that
14

Mach Min., 378 F.3d at 182.

15

EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (internal citations
and quotation marks omitted).
16

Docket 250 (Reply).

17

Docket 203-15; Dockets 203-17–18.

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the factual assertions set out in these three documents are not subject to reasonable
dispute and accordingly the Court declines to take judicial notice of them.
IV.

Challenge to the Adequacy of EEOC’s Conciliation Efforts
As discussed above, although it does not adopt that standard as controlling, the

Court evaluates the EEOC’s effort to conciliate its charge against Parker Drilling under
the more rigorous three-part inquiry applied by several circuits—because if the
conciliation efforts meet that standard then the Court clearly has subject matter
jurisdiction over the EEOC’s claims in this action.
A. EEOC’s responsibility to outline the charge to Parker
The first requirement for adequate conciliation under the three-part test is that the
EEOC outline to the employer the reasonable cause for its belief that Title VII has been
violated.
In this case, in a letter dated September 14, 2012, the EEOC notified Parker Drilling
of its determinations that (1) Mr. McDowell was a “qualified individual” under the ADA
based on his vision impairment and met all the qualifications for the position for which he
applied; (2) that Parker Drilling did not hire Mr. McDowell because of his visual impairment
and Parker Drilling’s determination that his impairment “posed a direct threat to [Mr.
McDowell] and other employees working on the rig floor”; and (3) that Mr. McDowell’s
work history and demonstrated ability to work in the position offered, with or without
reasonable accommodation, undermined Parker Drilling’s explanation for having denied
employment to Mr. McDowell. 18 Based on the foregoing, the EEOC informed Parker

18

Docket 203-5 (Determination Letter) at 1.

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Drilling “the evidence supports that [Mr. McDowell] was denied employment in violation
of the ADA because of his disability, and/or because [Parker Drilling] regarded [Mr.
McDowell] as having a disability.” 19
The Court finds that in sending this letter, the EEOC adequately outlined to Parker
Drilling a reasonable cause for the EEOC’s belief that Title VII had been violated.
B. EEOC’s responsibility to offer an opportunity for voluntary compliance
The second requirement for adequate conciliation under the more searching threepart test is that the EEOC offer a respondent an opportunity for voluntary compliance.
The record reflects that the EEOC and Parker Drilling exchanged formal
communications through counsel regarding conciliation between December 7, 2012 and
April 12, 2013. In a letter dated December 7, 2012, the EEOC outlined its initial offer of
settlement. The EEOC proposed that Parker Drilling agree to certain specified training,
reporting, hiring policy, and employee notification requirements.

On behalf of Mr.

McDowell, the EEOC also sought $354,617.74 in estimated back pay and $150,000 in
compensatory and punitive damages for emotional distress. 20 In explaining the basis for
the amount of back pay requested, the EEOC stated:
When [Parker Drilling] rescinded the offer of employment, [Mr.
McDowell] was without employment for a period of time and
subsequently obtained a position with a salary much lower
than the $155,000 a year Tool Pusher position [Parker
Drilling] rescinded from [Mr. McDowell]. As a result, [Mr.
McDowell] is seeking $354.617.74 (from January 29, 2010, to
August 18, 2012) in backpay, including interest, projected
bonuses and a 15 percent annual cost of living raise, and a

19

Id.

20

Docket 203-6 (Ex. F) at 1–2.

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job offer from [Parker Drilling] for the position of Tool Pusher
at a pay rate commensurate for a third year Tool Pusher. 21
In a letter dated December 19, 2012, Parker Drilling responded to the EEOC. The
response set forth Parker Drilling’s commitment to being an equal opportunity employer.
The letter also referred to the medical evaluation of Mr. McDowell as the basis for Parker
Drilling’s actions, and concluded as follows:
Parker Drilling remains willing to discuss and explore a
reasonable resolution to this matter. However, the proposal
you have submitted appears to greatly exceed everything Mr.
McDowell could even potentially recover is he was successful
in litigation, a truly dubious prospect considering the evidence,
the law, and your own Commission’s guidance. 22
Parker Drilling’s December 19 letter did not include a counter-offer for settlement. In its
summary judgment briefing, Parker Drilling characterizes this letter as “in good faith
asking for an explanation as to how the EEOC came up with its settlement demand of
one-half a million dollars.” 23 But the Court cannot find any such request in this letter.
In a letter dated January 29, 2013, the EEOC responded to Parker Drilling’s letter,
stating:
Your letter did not provide any indication of what your client
considers a reasonable resolution.
Accordingly, the
Commission respectfully requests that you provide a specific
offer as to monetary and injunctive relief that your client is
willing to offer as a resolution. It is apparent from your
December 19, 2012, letter that the respondent has
reservations regarding the Commission’s proposed monetary
relief. The Commission based the monetary relief proposal
on the information available at that time. We would welcome
any good faith offers your client is willing to put forward. 24

21

Id. at 2.

22

Docket 203-7 (Ex. G) at 2.

23

Docket 202 (Motion) at 4.

24

Docket 203-8 (Ex. H) at 1

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Parker Drilling responded in turn in a letter dated February 12, 2013, in which it
stated:
As you are aware, Parker Drilling respectfully, but
vehemently, disagrees with the EEOC’s findings in this
matter, as well as its description of the underlying facts at
issue.
...
I am sure you can imagine my client’s surprise when the
Commission issued its opening conciliation proposal of more
than one-half of a million dollars in monetary relief and several
non-monetary concessions. At that great amount of money, I
am not optimistic the sides will be able to bridge [the] wide gap
the Commission has created through its initial proposal. Due
to the great disparity between the side’s beliefs in this matter,
Parker Drilling did not accept the Commission’s first offer.
Now, the Commission has requested Parker Drilling submit
some proposal for resolution, which Parker Drilling submits in
aid of resolution. Parker Drilling certainly remains willing to
discuss a reasonable resolution to this matter. In that regard,
and to avoid continuing legal expenses, Parker Drilling is
prepared to pay Mr. McDowell $10,500, or one month’s salary
for the position for which he had applied. 25
The EEOC replied in a letter dated March 7, 2013, which included the following:
While the Commission appreciates your expressed interest in
reaching a reasonable resolution to the charge, Parker
Drilling’s $10,500 offer does not provide the appropriate
remedy that is consistent with the Respondent’s
discriminatory practices, which resulted in substantial loss of
income, and compensatory damages as well.
In our
continued efforts to resolve this matter, the Commission is
willing to lower its counteroffer to $475,000, with our previous
conciliation requirements of policy changes, training, and
posting of notice to employees, to resolve all issues and
provide remedy to Mr. McDowell. . . . If Parker Drilling is
interested in conciliating the above charges it must respond
to this proposal, in writing, by March 22, 2013. If we do not
receive an offer which provides substantive remedy to Mr.
McDowell, we may refer the case to our legal unit for review
of further actions to obtain appropriate relief for Mr.
McDowell. 26
25

Docket 203-9 (Ex. I) at 1.

26

Docket 203-10 (Ex. J) at 1.

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Parker Drilling’s response in a letter dated March 22, 2013, stated:
In light of the EEOC’s two proposals submitted thus far, it
appears clear to me there is likely to be too great a gap
between each side’s respective positions to reach a
settlement agreement and Parker Drilling is willing to address
these issues to a federal court. However, Parker Drilling
remains willing to work with the EEOC in an effort to resolve
this matter, provided you understand that the company will not
pay several hundreds of thousands of dollars to settle this
matter.
Parker Drilling remains staunchly
Commission’s findings in this matter.

opposed

to

the

...
That said, Parker Drilling remains interested in conciliating the
above-referenced matter and, by this letter, is offering to pay
[Mr. McDowell] $12,500. By this offer, Parker Drilling does not
admit to any liability in this matter and still denies that there is
any legal liability on its part. 27
In a letter dated April 12, 2013, the EEOC informed Parker Drilling that it had
“determined that efforts to conciliate the above referenced charge as required by the
Americans with Disabilities Act of 1990 (ADA), as amended, have been unsuccessful”
and that “further conciliation efforts would be futile or non-productive.” 28
In its partial summary judgment motion, Parker Drilling’s central challenge to the
EEOC’s failure to provide an opportunity for voluntary compliance is that the “EEOC’s
failure to provide any basis, let alone sufficient basis for its half a million dollar settlement
demands, does not meet its statutory duty to conciliate in good faith.” 29

27

Docket 203-11 (Ex. K) at 1–2.

28

Docket 203-12 (Ex. L) at 1.

29

Docket 202 (Motion) at 12.

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Parker Drilling cites to La Rana Hawaii for support. In La Rana Hawaii, an alleged
EEOC failure to conciliate was asserted by employers in a motion to dismiss the EEOC’s
claims. The district court found that “the EEOC failed to conciliate in good faith when it
failed to provide either Defendant with any information with which they could evaluate the
EEOC’s claims.”30 The court elaborated as follows:
Despite Defendants' repeated requests, the EEOC did not
furnish information regarding the class of unnamed aggrieved
individuals, the allegedly unlawful acts, or any other fact that
would put Defendants on notice of the class or its claims. The
EEOC's obstinate refusal to offer any information, including
the results of its investigation, does not demonstrate a
willingness to work toward settlement, because a fundamental
element of working toward settlement is providing a
reasonable amount of information to make settlement a
possibility. 31
Parker Drilling asserts that “[t]he need for employers to know the basis of a
complainant’s alleged damages or the settlement demand asserted by the EEOC is
obvious. Without such information, there is no way for the parties to conciliate in a
meaningful manner. Any defendant in any litigation needs to know the extent of the
plaintiff’s damages before an intelligent settlement assessment can be made.” 32 Parker
Drilling also asserts that “the EEOC also cannot generically respond to an employer’s
request for a basis for the EEOC’s calculations by stating that the demand is comprised
of ‘back pay, compensatory damages and front pay’ without setting out a basis for its
calculations.” 33

30

La Rana Hawaii, 888 F. Supp. 2d at 1045.

31

Id. (internal citations and quotation marks omitted).

32

Docket 202 (Motion) at 14–15.

33

Id. at 16 (citing EEOC v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, 1043 (D. Ariz. 2013)).

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Several facts distinguish the circumstances of this case from the district court
cases on which Parker Drilling relies. First, in La Rana Hawaii and Parker Drilling’s other
cited case, EEOC v. Bloomberg, 34 the information deficit that resulted in the respondents
being unable to evaluate the EEOC’s claims stemmed from a lack of information about
the size of the class the EEOC was litigating on behalf of and the claims made by persons
in that class.

By contrast, this case involves a single, identified individual with a

specifically articulated claim. And unlike in Parker Drilling’s cited case EEOC v. Swissport
Fueling, the EEOC set out in its December 19, 2012 conciliation letter the factors it
included in its back pay calculation. In light of these facts, Parker Drilling had sufficient
information to be able to evaluate the reasonableness of the EEOC’s settlement proposal.
Indeed, Parker Drilling’s statement that “the proposal you have submitted appears to
greatly exceed everything Mr. McDowell could even potentially recover if he was
successful in litigation” indicates that Parker Drilling in fact did make some evaluation of
Mr. McDowell’s claim. In summary, the Court finds that the EEOC provided sufficient
information for Parker Drilling to evaluate the EEOC’s charge and respond. 35 Based on
the foregoing, the Court finds that the EEOC offered Parker Drilling an adequate
opportunity for voluntary compliance through the conciliation process.
//

34

751 F. Supp. 2d 628, 641 (S.D.N.Y. 2010).

35

Parker Drilling raises the EEOC’s request for $150,000 in compensatory and punitive damages
as an additional complication to evaluating the merits of the EEOC’s settlement offer. Docket 202
(Motion) at 4. The EEOC did not provide a basis for these damages to the same level of detail
as it did for its equitable claim. However, the Court views the EEOC’s request for compensatory
and punitive damages as secondary to its core discrimination claim and the associated equitable
remedies. And plaintiffs in civil litigation routinely request damages for emotional distress and
punitive damages without articulating precise bases for the amount of damages sought.
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C. EEOC’s obligation to respond reasonably and flexibly to the reasonable
attitudes of Parker Drilling
The third requirement of adequate conciliation under the more searching threepart test is that the EEOC respond reasonably and flexibly to the reasonable attitudes of
Parker Drilling.
At its heart, Parker Drilling’s challenge to the EEOC’s conciliation efforts focuses
on whether the EEOC’s offers of conciliation were made in good faith. Parker Drilling
asserts that “[t]he EEOC’s ‘take it or leave it’ stance to conciliation does not meet the
statutory obligations to proceed in good faith.”36
From the record before the Court, it is apparent that during the conciliation process,
the EEOC and Parker Drilling viewed the merits of Mr. McDowell’s claim and the
appropriate equitable and legal remedies very differently. The EEOC evaluated Mr.
McDowell’s claim as meritorious and deserving of significant remedy, while Parker Drilling
viewed the claim as non-meritorious and warranting a remedy only to defray greater
potential litigation costs. The EEOC’s obligation to seek conciliation in good faith does
not require it to convince a respondent of the merits of its position nor to compromise
claims it considers meritorious for the sake of avoiding litigation. And while Parker Drilling
repeatedly emphasizes in its briefing that it made requests for a more detailed explanation
of the basis for the EEOC’s settlement demands, the Court does not find such requests
reflected in Parker Drilling’s conciliation correspondence. As discussed above, the EEOC
adequately explained its position and exchanged multiple correspondences with Parker
Drilling during the conciliation process. When Parker Drilling clearly communicated in its

36

Docket 202 (Motion) at 17.

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March 22, 2013 letter that in its view “there is likely to be too great a gap between each
side’s respective positions to reach a settlement agreement,” the EEOC concluded that
further attempts at conciliation were unlikely to be fruitful. The Court finds that the EEOC’s
responses to Parker Drilling’s conciliation correspondence and its eventual conclusion
that conciliation had failed were reasonable under these circumstances.
Parker Drilling’s briefing also emphasizes the EEOC’s September 18, 2013 press
release related to this suit and the EEOC’s failure to “reconvene the conciliation
discussions” after this suit was filed.

It suggests that these actions by the EEOC

demonstrate that the agency never had any intent to reach an agreement with Parker
Drilling during conciliation. 37 The EEOC’s post-suit press release does not support an
inference that its earlier conciliation efforts were made in bad faith, and post-suit efforts
to settle this case have no bearing on whether the EEOC’s pre-suit conciliation efforts
were adequate.
CONCLUSION
After reviewing the record and applying the more searching approach to
conciliation review that has been adopted by several circuits, the Court concludes that
the EEOC’s approach to conciliation was reasonable and responsive in light of all the
circumstances. 38 Accordingly, the Court concludes that, to the extent that adequate
conciliation is a jurisdictional pre-condition to this suit, the EEOC met that pre-condition

37

Docket 202 (Motion) at 5–7.

38

The Court emphasizes that it is not determining whether this more searching test is the proper
means of evaluating conciliation pursuant to § 2000e-5, or even whether any such evaluation is
an appropriate subject for judicial review. Rather, it finds that even if this more rigorous test is
applied, the EEOC’s conciliation efforts in this case were adequate.
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before filing suit in this case and the Court has jurisdiction. Therefore, IT IS ORDERED
that:
1. Parker Drilling’s Request for Judicial Notice at Docket 204 is GRANTED except
as to the documents at Docket 203-15, 203-17, and 203-18; and
2. Parker Drilling’s Motion for Partial Summary Judgment at Docket 202 is DENIED.
DATED this 20th day of March, 2015.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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