Equal Employment Opportunity Commission v. Crye-Leike Inc et al

Filing 55

MEMORANDUM AND ORDER denying 17 Crye-Leike's and the intervening plaintiffs' joint motion for summary judgment; and directing Cyre-Leike to apprise the Court within 14 days of the date of this Memorandum and Order whether it desires to return to conciliation or whether it deems conciliation complete and desires that the Court issue a Scheduling Order setting a trial date. Signed by Judge Susan Webber Wright on 8/3/11. (hph)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
ROSALIND BROWN, LISA MARTIN,
KENYA A. RANSOM, BRANDY
ROBINSON, VICKI HOLCOMB, and
STEPHANIE HARVILL,
Intervening Plaintiffs,
vs.

CRYE-LEIKE, INC., and
CRYE-LEIKE OF ARKANSAS, INC.
d/b/a BANKERS ASSET
MANAGEMENT,
Defendants.

*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*

No. 4:10-cv-02070-SWW

MEMORANDUM AND ORDER
The Equal Employment Opportunity Commission (EEOC or Commission) brings this
action against Crye-Leike, Inc. and its wholly-owned subsidiary, Crye-Leike of Arkansas, Inc.
d/b/a Bankers Asset Management (collectively, Crye-Leike), pursuant to 42 U.S.C. § 1981a and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to redress alleged
discrimination on the basis of race (black) and retaliation. The EEOC claims that intervening
plaintiffs Rosalind Brown, Lisa Martin, Kenya Ransom, Brandy Robinson, and a class of black
applicants were denied employment with Crye-Leike because of their race, that intervening
plaintiff Stephanie Harvill was retaliated against for opposing discrimination and participating in
a black applicant’s race discrimination lawsuit, and that intervening plaintiff Vicki Holcomb and

interested party Christy Lute (who has not intervened in this action to date) were retaliated
against for participating in a black applicant’s race discrimination lawsuit. The EEOC
additionally alleges that Crye-Leike destroyed and failed to maintain and preserve applications
of black applicants in violation of 29 C.F.R. § 1602.14 – Preservation of Records Made or Kept.
The matter is before the Court on joint motion of Crye-Leike and the intervening
plaintiffs for summary judgment based on the failure of the EEOC to conciliate in good faith
[doc.#17]. The EEOC has responded in opposition to Crye-Leike’s and the intervening
plaintiffs’ joint motion, Crye-Leike and the intervening plaintiffs have filed a reply to the
EEOC’s response, and the EEOC has filed a supplemental brief following Crye-Leike’s and the
intervening plaintiffs’ reply. Having considered the matter, the Court denies the joint motion of
Crye-Leike and the intervening plaintiffs for summary judgment based on the failure of the
EEOC to conciliate in good faith.
I.
A.
In order to put into context the dispute concerning the parties’ failed conciliation, the
Court sets forth the history of the underlying charges of discrimination and two separate
lawsuits.
1.
On November 18, 2008, attorney J. Cody Hiland filed a lawsuit against Crye-Leike in the
United States District Court for the Eastern District of Arkansas on behalf of Crystal Fowlkes
alleging that she was terminated from her employment with Crye-Leike because of her race
(black). The case is styled Fowlkes v. Crye-Leike, Inc., No. 4:08-cv-4161-BSM (the Fowlkes

-2-

suit). Fowlkes alleged, inter alia, that her supervisor, Ann Ball, President of Bankers Asset
Management (BAM), commented after the hiring of Fowlkes that “we aren’t going down that
road ever again because blacks are lazy and will not work,” and “Do we want another one?”
Crye-Leike moved for summary judgment. United States District Judge Brian S. Miller granted
summary judgment in favor of Crye-Leike finding that Fowlkes’s case lacked merit because
Fowlkes admitted she voluntarily failed to return to work at the end of her maternity leave. See
Fowlkes v. Crye-Leike, Inc., No. 4:08-cv-4161-BSM, 2010 WL 961585 (E.D.Ark. Mar. 16,
2010). Following that ruling, Crye-Leike filed a motion for costs and attorney’s fees. Judge
Miller found that Fowlkes’s suit was frivolous and lacked merit and awarded Crye-Leike
attorney’s fees in the amount of $66,465.50 and costs in the amount of $6,643.73. Fowlkes
appealed the grant of summary judgment and the award of attorney’s fees and costs to the
United States Court of Appeals for the Eighth Circuit. The Eighth Circuit, however, dismissed
Fowlkes’s appeal for lack of jurisdiction as Crye-Leike still maintained a counterclaim against
Fowlkes in the District Court. Upon remand, Judge Miller dismissed the counterclaim and
Fowlkes once again appealed the grant of summary judgment and the award of attorney’s fees
and costs to the Eighth Circuit. That appeal remains pending.
2.
In January 2009, intervening plaintiffs Rosalind Brown, Lisa Martin, Kenya Ransom, and
Brandy Robinson, filed charges of discrimination with the EEOC alleging that they had been
denied employment with BAM because of their race. Also in January 2009, intervening plaintiff
Stephanie Harvill filed a charge of discrimination with the EEOC alleging that she was
constructively discharged in retaliation for recommending a black applicant for employment at

-3-

BAM.
3.
While the EEOC was investigating the above January 2009 charges, intervening plaintiff
Robinson, represented by attorney Hiland, filed a class action lawsuit against Crye-Leike in the
Circuit Court of Pulaski County, Arkansas alleging that she and others were not hired based on
their race. The case, filed on May 15, 2009, is styled Robinson v. Crye-Leike, Inc., et al., No.
CV 09-3562-3 (the Robinson suit). Crye-Leike states that the Robinson suit is based on the same
evidence as the EEOC’s present suit in this Court and alleges that Crye-Leike’s failure to hire
Robinson and other black applicants was due to a policy dictated by Ann Ball of refusing to hire
blacks and screening black applicants from consideration for employment. In support of the
Robinson suit, Robinson attached affidavits from interested party Christy Lute and intervening
plaintiffs Harvill and Vicki Holcomb, all former employees and/or managers at BAM. The
affidavits of Lute, Harvill and Holcomb essentially state that they were told either by Ball or
Lute to screen out black applicants based on race and that they did in fact personally participate
in such screening of the applicants in varying degrees.
On July 6, 2009, Crye-Leike answered the complaint in the Robinson suit denying that
Ball made any discriminatory employment-related decisions on behalf of Crye-Leike. It was
Crye-Leike’s position, as stated in its answer, that Crye-Leike did not instruct, authorize, or in
any way condone Lute’s, Harvill’s, and Holcomb’s decisions to engage in any of the alleged
racially discriminatory hiring practices which they allege to have personally participated in and
which are the subject of the Robinson suit. Crye-Leike states that to the extent Lute, Harvill, and
Holcomb engaged in the alleged racially discriminatory hiring practices described in the

-4-

Robinson suit, they are liable in whole or in part to Crye-Leike for all or part of the claims
against Crye-Leike. In this respect, on July 20, 2009, Crye-Leike filed a third-party complaint in
the Robinson suit against Lute, Harvill, and Holcomb for common law indemnity, breach of duty
of loyalty, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing.
Crye-Leike based their third-party complaint on the affidavits submitted by Lute, Harvill, and
Holcomb in the Robinson suit. Crye-Leike states that the affidavits show that third-party
defendants Lute, Harvill, and Holcomb personally engaged in acts of discrimination in terms of
hiring while employed by Crye-Leike. Lute, Harvill, and Holcomb have denied any liability to
Crye-Leike.
On July 27, 2009, Harvill and Holcomb filed a motion to dismiss the third-party
complaint arguing, inter alia, that the third-party complaint failed to state a claim upon which
relief could be granted and that its true purpose was to harass and intimidate witnesses against
Crye-Leike. Thereafter, on August 5, 2009, Crye-Leike filed a motion to disqualify attorney
Hiland from representing Robinson and the third-party defendants based on a conflict of interest.
After a hearing on the motion to dismiss and the motion to disqualify, Pulaski County Circuit
Judge Jay Moody denied the third-party defendants’ motion to dismiss the third-party complaint
and granted in part Crye-Leike’s motion to disqualify Hiland. Judge Moody advised Hiland he
could not represent the third-party defendants, and instructed third-party defendants to notify
him if they consented to Hiland’s continued representation of Robinson. Harvill and Holcomb
consented to Hiland’s continued representation of Robinson. The Robinson suit and the thirdparty complaint are currently pending before the Pulaski County Circuit Court and, according to
Crye-Leike, a trial date is set for October 25, 2011.

-5-

4.
In December 2009, Lute, Harvill, and Holcomb filed charges of discrimination with the
EEOC alleging that Crye-Leike retaliated against them by filing the third-party complaint in the
Robinson suit.1 The EEOC subsequently found cause on the retaliation charges and issued
proposed Conciliation Agreements which required Crye-Leike to dismiss its third-party claims
against Lute, Harvill, and Holcomb and to provide each charging party with compensatory
damages and attorney’s fees as follows: (1) Lute–$56,250 for compensatory damages and
$18,750 for attorney’s fees; (2) Harvill–$57,000 for compensatory damages and $28,000 for
attorney’s fees; and (3) Holcomb–$57,000 for compensatory damages and $28,000 for attorney’s
fees;
By letter dated May 7, 2010, Crye-Leike rejected the EEOC’s proposed Conciliation
Agreements for Lute’s, Harvill’s, and Holcomb’s retaliation charges. Crye-Leike stated that
“[a]s an initial matter, your proposed Conciliation Agreements are rejected. Should the
Commission desire to engage in conciliation/mediation efforts regarding all of the outstanding
charges against Crye-Leike and attempt to reach a global resolution, we would be willing to
explore that possibility.” Crye-Leike then advised the EEOC of the lack of merit of any action
for alleged retaliation based upon several factors, including (1) the EEOC’s failure to support
their cause findings with any evidence of unlawful retaliation other than the mere filing of the
third-party complaint, which the Pulaski County Circuit Court held stated a claim under
Arkansas law and was not baseless; (2) the EEOC’s failure to substantiate the basis for the
requested compensatory damages and the requested attorney’s fees; and (3) the EEOC’s failure
1

Harvill additionally alleged in her charge of discrimination that she was retaliated against for filing her previous
charge of discrimination in January 2009.

-6-

to show or even attempt to show that the third-party complaint was baseless and was filed with a
retaliatory motive, as is required by federal law. Crye-Leike informed the EEOC that if it chose
to initiate litigation, it would “attach a copy of this letter to Crye-Leike’s motion seeking legal
fees and court costs against the Commission to show that the Commission was forewarned that
the law and facts do not support any action for alleged retaliation.” Crye-Leike noted that
“[w]hat is most disappointing is that the Commission is apparently so imperceptive as to see this
matter for what it really is–a fabrication by disgruntled former employees who hate Ann Ball
combined with a lawyer who is trying to do anything to get some money.” Crye-Leike
additionally stated:
In the Conciliation Agreements, you have demanded that Crye-Leike "agree to
dismiss, with prejudice, the Third Party Complaint ... that is currently pending in
Pulaski County Circuit Court." My client is not about to give up its defense or its
theory of the case and change its position in the Circuit Court litigation based on
your threat. This demand, on your part, is not relief that would ever be available
to the Commission and/or the charging parties as part of any litigation.
Accordingly, that demand is a non-starter. Be advised that we will vigorously
defend Crye-Leike and will not be bullied or intimidated by the Commission into
dropping the Third Party Complaint.
Following receipt of this letter, the EEOC, on June 18, 2010, issued Notices of
Conciliation Failure on the three retaliation charges filed by Lute, Harvill, and Holcomb.
5.
In August 2010, Crye-Leike and the charging parties’ attorneys agreed in principal to a
global settlement in the amount of $415,000, which settled the January 2009 charges filed by
Brown, Martin, Ransom, Robinson, and Harvill, the December 2009 charges filed by Lute,
Harvill, and Holcomb, the Robinson suit which Crye-Leike states was based on the same
allegations raised in the charges, and the Fowlkes suit for unlawful termination, which Crye-

-7-

Leike states relied on evidence relevant to the charges. Crye-Leike states in a letter dated
August 10, 2010, that the settlement was “contingent upon the EEOC dismissing all charges,
terminating all investigations and agreeing not to pursue any other actions against Crye-Leike
that reasonably could have arisen out of the various charges and investigations referenced
above.”2
On August 26, 2010, the EEOC issued final determinations as to the January 2009
charges filed by Brown, Martin, Ransom, Robinson, and Harvill, finding reasonable cause to
believe that violations of Title VII had occurred and invited Crye-Leike and the charging parties
“to join with it in a collective effort toward a just resolution of these matters.” The EEOC
subsequently sent out Conciliation Agreements requesting for each charging party, inter alia, as
follows: (1) Brown–$300,000 for compensatory and punitive damages, $25,000 for lost wages,
and $20,800 in attorney’s fees; (2) Martin–$300,000 for compensatory and punitive damages,
$25,000 for lost wages, and $20,800 in attorney’s fees; (3) Ransom–$300,000 for compensatory
and punitive damages, $75,000 for lost wages, and $20,800 in attorney’s fees; (4)
Robinson–$300,000 for compensatory and punitive damages, $25,000 for lost wages, and
$20,800 in attorney’s fees; and (5) Harvill–$300,000 in compensatory and punitive damages,
$75,000 in lost wages, and $20,800 in attorney’s fees.
Crye-Lieke and the charging parties apparently rejected the EEOC’s proposed
Conciliation Agreements. Rather, on September 10, 2010, Crye-Leike and counsel for charging
parties Brown, Martin, Ransom, Robinson, Lute, Harvill, and Holcomb sent a joint letter to the
EEOC regarding the EEOC’s request that the parties engage in conciliation of the charges.

2

One of the charges “referenced above” was an apparently unrelated charge of discrimination filed by Pavora Gilbert.

-8-

Noting that three of the charges (Lute, Harvill, and Holcomb) had already failed conciliation,
Crye-Leike stated that it was pleased to announce that it and all of the charging parties’ counsel
had reached an agreement to settle these matters. Crye-Leike requested that the charges of Lute,
Harvill, and Holcomb be resubmitted to the Commission’s conciliation process and that such
charges be resolved pursuant to Crye-Leike’s and Lute’s, Harvill’s, and Holcomb’s Conciliation
Agreements, which were enclosed. Crye-Leike additionally submitted separate Conciliation
Agreements for the remaining charges and noted that all parties have negotiated the enclosed
Conciliation Agreements for the referenced charges. The Conciliation Agreements proposed by
Crye-Leike and the charging parties provided for each charging party to receive, inter alia, as
follows: (1) Brown–a total of $15,000, including attorney’s fees and costs; (2) Martin–a total of
$15,000, including attorney’s fees and costs; (3) Ransom–a total of $90,000, including attorney’s
fees and costs; (4) Robinson–a total of $50,000 including attorney’s fees and costs; (5) Lute–a
total of $55,000, including attorney’s fees and costs; (6) Harvill–a total of $165,000, including
attorney’s fees and costs; and (7) Holcomb–a total of $20,000, including attorney’s fees and
costs. Crye-Leike stated that “[i]f the settlements are approved, in toto, by the Commission, the
Charge of Pavora Gilbert ... and the appeal of Crystal Fowlkes, will be negotiated and resolved
as well, including but not limited to the $90,000 judgment for attorneys’ fees that Crye-Leike
obtained in federal court against Ms. Fowlkes.”3
The EEOC rejected Crye-Leike’s and the charging parties’ proposed Conciliation
Agreements and, on September 14, 2010, issued Notices of Conciliation Failure on the January

3

Although Crye-Leike sought attorneys’ fees in the Fowlkes suit totaling $91,455.01 and costs in the amount of
$6,643.73, Judge Miller, as previously noted, awarded Crye-Leike attorneys’ fees in the amount of $66,465.50 and costs in the
amount of $6,643.73.

-9-

2009 charges filed by Brown, Martin, Ransom, Robinson, and Harvill. Crye-Leike states that it
contacted the Commission about its rejection of the proposed settlement but that it never
received feedback from the Commission as to what “sticking points” the Commission found
problematic.
B.
The EEOC filed this action on December 30, 2010. On April 15, 2011, Crye-Leike and
the intervening plaintiffs filed their joint motion for summary judgment based on the failure of
the EEOC to conciliate in good faith. Upon the filing of this motion, the EEOC proposed that
the parties return to conciliation. Crye-Leike, however, declined this offer, stating that it did not
believe conciliation was in order in light of Crye-Leike’s and the intervening plaintiffs’ joint
motion for summary judgment pending before the Court. Crye-Leike stated, however, that in a
good faith effort to get this matter resolved, it was agreeable to having this case mediated before
a Magistrate Judge but that the offer to engage in mediation should not be considered an
alternative to Crye-Leike’s and the intervening plaintiffs’ joint motion for summary judgment.
On May 6, 2011, Crye-Leike and the intervening plaintiffs, joined by interested party
Lute, filed a joint motion requesting that this matter be referred to a Magistrate Judge for
mediation. By Order entered that same day [doc.#25], the Court granted the parties’ motion and
referred the matter to Magistrate Judge Joseph J. Volpe for mediation. The Court stayed the time
for the EEOC to respond to the joint motion for summary judgment pending mediation.
Judge Volpe conducted mediation on June 10, 2011. The parties, however, were unable
to reach agreement and this Court, by Order entered June 14, 2011 [doc.#36] directed the EEOC
to file its response to the joint motion for summary judgment based on the failure of the EEOC to

-10-

conciliate in good faith. The EEOC timely filed its response, Crye-Leike and the intervening
plaintiffs thereafter filed their reply to the EEOC’s response, and the EEOC filed its
supplemental brief in response to Crye-Leike’s and the intervening plaintiffs’ reply.
II.
Crye-Leike argues that during the 18 month period the EEOC was investigating the
charges that form the basis of this action, attorneys for Crye-Leike and the private attorneys for
the intervening plaintiffs/charging parties engaged in extensive and protracted settlement
discussions for the purpose of reaching a settlement on the EEOC Charges, as well as what it
states are two other inextricably intertwined lawsuits: the Robinson suit and the Fowlkes suit.
Crye-Leike states that it was both sides’ understanding, based on specific representations made
by representatives of the EEOC, that the EEOC encouraged such a settlement and would accept
and agree to any settlement reached by Crye-Leike and charging parties.4
Crye-Leike states that to its disbelief and disbelief of the charging parties’ attorneys, four
days after the September 10, 2010 joint letter was sent to the EEOC announcing that Crye-Leike
and charging parties’ attorneys had agreed to a global settlement in the amount of $415,000,
which settled all the charges, the Robinson suit, and the Fowlkes suit, the EEOC summarily
issued Notices of Conciliation Failure on all charges. Crye-Leike states that significantly, the
EEOC issued the Notices of Conciliation Failure (1) without even acknowledging or responding

4

Crye-Leike states that Carson Owen, a trial attorney with the EEOC who has apparently since retired, was at the
center of many of these discussions. The EEOC, however, states that Owen had no authority (either apparent or actual) to act on
behalf of the EEOC with respect to the conciliation process and that Crye-Leike knew that the EEOC never identified Owen as
one to conduct conciliation. The EEOC argues that the fact that Crye-Leike and the intervening plaintiffs’ counsel contacted
Owen during the conciliation process did not grant Owen authority to act on behalf of the EEOC with respect to the conciliation
process. In support of its argument, the EEOC cites, inter alia, Parmenter v. Federal Deposit Ins. Corp., 925 F.2d 1088, 1093
n.1 (8th Cir. 1991), which noted that “an agent of the United States must act within his delegated authority” and “[i]t has also
been held that apparent authority does not apply to government agents.”

-11-

to the settlement reached by the parties; (2) without speaking to Crye-Leike, Crye-Leike’s
attorneys, charging parties’ attorneys, or charging parties about the settlement; (3) without
informing Crye-Leike or charging parties’ attorneys why the Commission did not approve the
settlement; (4) without proposing any modifications to the settlement; (5) without requesting a
face-to-face conference with any or all of the parties; and (6) without even attempting to
negotiate with Crye-Leike or charging parties’ attorneys to reach a settlement that would be
acceptable to the EEOC as well as Crye-Leike and charging parties. Crye-Leike states that when
attorneys for the parties contacted the EEOC to find out why the Commission failed to even
respond to the joint conciliation proposals, representatives of the Commission refused to discuss
the matter.
Crye-Leike further notes that the EEOC never attempted to conciliate the claims of the
unidentified black applicants for whom the EEOC is now seeking relief and that it was
unreasonable for the EEOC to file suit in this case on behalf of the class knowing that it never
even attempted to conciliate these claims. Crye-Leike argues that the EEOC’s total failure to
conciliate class claims without any explanation, coupled with its insistence on filing a lawsuit on
behalf of the class when it knew it had not satisfied the statutory prerequisites to filing suit,
clearly proves the EEOC has acted in bad faith and in an arbitrary and unreasonable manner.
Crye-Leike states that after this action was filed on December 30, 2010, attorneys for
Crye-Leike requested several times that the EEOC meet and confer with the parties to discuss
settlement but that the EEOC has failed to respond to such requests. Crye-Leike states that both
Crye-Leike and the intervening plaintiffs/charging parties remain ready and willing to abide by
the terms of the joint settlement agreement and/or to negotiate with the EEOC regarding

-12-

settlement terms acceptable to the EEOC but that the EEOC has been and remains the only
stopping block to resolving all of the charges that form the basis of the EEOC’s suit, as well as
the Robinson suit and the Fowlkes suit. Crye-Leike and the intervening plaintiffs submit that the
EEOC has failed to fulfill its statutory duty to conciliate in good faith prior to filing this action,
and has acted in bad faith and in a grossly arbitrary and unreasonable manner in refusing to
acknowledge, respond to, discuss or negotiate the terms of the joint settlement proposed by the
parties. Crye-Leike and the intervening plaintiffs request the Court to grant its joint motion for
summary judgment and dismiss the EEOC’s suit for failure to conciliate in good faith.
A.
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The
moving party “bears the initial responsibility of informing the district court of the basis for its
motion,” and must identify “those portions of [the record] ... which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has properly supported its motion for summary judgment, the nonmoving
party must “do more than simply show there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The nonmoving
party must respond by submitting evidentiary materials that set out “‘specific facts showing ... a
genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). The inferences
to be drawn from the underlying facts must be viewed in the light most favorable to the party
opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). Credibility

-13-

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000) (citation and quotation marks omitted). However, “[w]here the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). “Only disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
B.
“The EEOC may bring a direct suit against an employer only after it has attempted to
conciliate in good faith but failed to reach an agreement.” E.E.O.C. v. Trans States Airlines,
Inc., 462 F.3d 987, 996 (8th Cir. 2006) (citing 42 U.S.C. § 2000e-5(f)(1); Johnson v. NekoosaEdwards Paper Co., 558 F.2d 841, 848 (8th Cir. 1977)). “Only if conciliation proves to be
impossible do we expect the Commission to bring action in Federal district court to seek
enforcement.” E.E.O.C. v. Hickey-Mitchell Co., 507 F.2d 944, 948 (8th Cir. 1974) (citing 118
Cong.Rec. 7563 (1972) (remarks of Congressman Perkins)).
“To satisfy the statutory requirement of good faith conciliation, the EEOC must ‘(1)
outline to the employer the reasonable cause for its belief that the law 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.’” E.E.O.C. v. UMB Bank, N.A., 432 F.Supp.2d 948,
954 (W.D. Mo. 2006) (quoting E.E.O.C. v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th
Cir. 2003)). “‘Whether the EEOC has adequately fulfilled its obligation to conciliate is

-14-

dependent upon the ‘reasonableness and responsiveness of the [EEOC’s] conduct under all the
circumstances.’” Id. “The EEOC's efforts should be considered sufficient if it made a sincere
and reasonable attempt to negotiate by providing [the employer] with an ‘adequate opportunity
to respond to all charges and negotiate possible settlements.’” Id. (quoting E.E.O.C. v. One
Bratenahl Place Condominum Assoc., 644 F.Supp. 218, 220 (N.D. Ohio 1986)).5
When a Court determines that the EEOC has attempted conciliation, but has not done so
in good faith, the Court may stay the proceedings for conciliation efforts to resume. E.E.O.C. v.
Hibbing Taconite Co., 266 F.R.D. 260, 273 (D.Minn. 2009). Cf. E.E.O.C. v. Die Fliedermaus,
77 F.Supp.2d 460, 467-68 (S.D.N.Y.1999) (court stayed proceedings for thirty days due to a
failure to conciliate in good faith where the EEOC had refused to inform the employer of how
the EEOC had calculated compensatory damages; court noted that preferred remedy for failure to
conciliate is not dismissal but instead a stay to permit such conciliation); McGee Bros. Co., 2011
WL 1542148, at *7 (appropriate remedy to an alleged defect in the conciliation process is an
additional opportunity to conciliate). Dismissal, however, may also be an appropriate sanction
under some extreme circumstances. Hibbing Taconite, 266 F.R.D. at 273. Cf. E.E.O.C. v. CRST
Van Expedited, Inc., No. 07-CV-95-LRR, 2009 WL 2524402, at *19 and n. 24 (N.D. Iowa 2009)
(dismissing the EEOC's complaint for a total failure to investigate, issue reasonable cause
finding, or conciliate, and noting that “[h]ad the EEOC not wholly abdicated its role in the
administrative process, the court might have stayed the instant action for further conciliation in

5

Other courts take a more deferential view, holding that the district court should only determine whether the EEOC
made an attempt at conciliation as the form and substance of those conciliations is within the discretion of the EEOC as the
agency created to administer and enforce our employment discrimination laws and is beyond judicial review. See E.E.O.C. v.
McGee Bros. Co., Inc., No. 3:10-cv-142-FDW-DSC, 2011 WL 1542148, at *4 (W.D.N.C. Apr. 21, 2011) (citing cases noting
split of authority regarding what level of review a district court should appropriately apply in analyzing the EEOC’s conciliation
attempts).

-15-

lieu of dismissal.”).
1.
The Court has considered the extensive summary judgment record (111 pages of briefing
and 70 exhibits totaling 598 pages) and finds that Crye-Leike and the intervening parties are not
entitled to summary judgment based on the failure of the EEOC to conciliate in good faith.
Certainly, there is no question that aspects of the EEOC’s conciliation, by the EEOC’s own
admission, could have been handled better. The EEOC states, for example, that it “probably
would have been better” to send a response to Crye-Leike explaining why Crye-Leike’s response
to the conciliation proposals was inadequate and that it should have sent Crye-Leike and the
intervening plaintiffs a letter explaining that it could not participate in any resolution of the
charges for which it had issued no cause determinations or outside litigation.6
The EEOC also acknowledges that it failed to specifically include the class in its
conciliation efforts, stating this was an “oversight” on its part.7 At least in this respect, then, it
cannot be said that the EEOC provided Crye-Leike with an “‘adequate opportunity to respond to
all charges and negotiate possible settlements,” UMB Bank, 432 F.Supp.2d at 954, even if CryeLeike may have been aware of the class claims.
Nevertheless, despite the EEOC’s admitted shortcomings in the conciliation process,
6

Crye-Leike states that it never asked the EEOC to agree to conciliation of charges for which it had issued no cause
determinations or outside litigation, noting that the Conciliation Agreements were only for the individual charging parties who
had pending retaliation and race charges and on whose behalf the EEOC has now brought suit.
7

The EEOC states that nonetheless, it notified Crye-Leike about the class claims in the predetermination interview and
determinations for Brown, Martin, Ransom, and Robinson, and that Crye-Leike knew exactly what the EEOC claims the
violations were and who were in the class. The EEOC states that regarding the class, Crye-Leike specifically stated that “[w]ith
respect to the 774 self-identified African Americans not hired during the period January 1, 2008 to August 23, 2008, that EEOC
shall not bring or attempt to bring claims or charges on behalf of any of these self-identified applicants referenced in these
determinations alleging a failure to hire for the period January 1, 2008 to August 23, 2008.” The EEOC states that Crye-Leike
knew it sought relief for the class but that Crye-Leike told the EEOC that it would not provide any relief for the class. The
EEOC states, however, that it could not participate in such a conciliation and that for that reason, the EEOC failed conciliation.

-16-

granting summary judgment and dismissing this action for failure of the EEOC to conciliate in
good faith would be too draconian. Cf. E.E.O.C. v. Bimbo Bakeries USA, Inc., Civil No. 1:09cv-1872, 2010 WL 598641, at *7 (M.D.Pa. Feb. 17, 2010) (dismissal of suit would be “far too
draconian” for failure of EEOC to conciliate in good faith where EEOC prematurely aborted the
conciliation process and therefore failed to fulfil its statutory duty to obtain voluntary
compliance). As indicated above, the “preferred remedy” for a failure to conciliate is not
dismissal but instead a stay of the action to permit such conciliation, Die Fliedermaus, 77
F.Supp.2d at 468, and since it is not the case here that the EEOC has made absolutely no efforts
to conciliate, dismissal is not warranted. See id.
2.
The question remains what purpose would be served by having the parties return to
conciliation. Whatever else may be said about the conciliation process prior to filing this action,
it is clear that the EEOC and Crye-Leike were never on the same page regarding the appropriate
resolution of the charges. The EEOC has suggested that the parties return to conciliation, but
Crye-Leike previously rejected a return to conciliation, suggesting instead federal mediation,
which proved unsuccessful. It would seem, then, that a return to conciliation would be futile.
The Court does note, however, that Crye-Leike stated that it did not believe conciliation
was in order in light of Crye-Leike’s and the intervening plaintiff’s joint motion for summary
judgment pending before the Court and that the offer to engage in mediation should not be
considered an alternative to Crye-Leike’s and the intervening plaintiffs’ joint motion for
summary judgment. As the Court has now resolved Crye-Leike’s and the intervening plaintiffs’
joint motion for summary judgment, that supposed impediment to a return to conciliation has

-17-

been removed. Accordingly, the Court directs Crye-Lieke to apprise the Court within fourteen
(14) days of the date of entry of this Memorandum and Order whether it desires to return to
conciliation or whether it deems conciliation complete and desires that the Court issue a
Scheduling Order setting a trial date.8
III.
For the foregoing reasons, the Court denies Crye-Leike’s and the intervening plaintiffs’
joint motion for summary judgment based on the failure of the EEOC to conciliate in good faith
[doc.#17]. The Court hereby directs Crye-Leike to apprise the Court within fourteen (14) days
of the date of entry of this Memorandum and Order whether it desires to return to conciliation or
whether it deems conciliation complete and desires that the Court issue a Scheduling Order
setting a trial date.

IT IS SO ORDERED this 3rd day of August 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

8

On August 1, 2011, Crye-Leike filed a motion for partial judgment on the pleadings [doc.#53] seeking dismissal of
all class claims brought by the EEOC on behalf of all persons or class members who were allegedly subjected to discriminatory
hiring decisions prior to July 18, 2008. It is not clear if this motion would be an impediment to a return to conciliation.

-18-