Equal Employment Opportunity Commission v. CollegeAmerica Denver, Inc.

Filing 64

MEMORANDUM OPINION AND ORDER denying 50 Plaintiff's Motion for Reconsideration of Court's Order Dismissing Plaintiff's Second Claim for Relief, by Judge Lewis T. Babcock on 10/23/2015. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge

Civil Action No. 14-cv-01232-LTB-MJW
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
COLLEGEAMERICA DENVER, INC., n/k/a CENTER FOR EXCELLENCE IN HIGHER
EDUCATION, INC., d/b/a COLLEGEAMERICA,
Defendant.
______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
______________________________________________________________________________
Babcock, J.
This case is before me on Plaintiff Equal Opportunity Employment Commissions’s (the
EEOC”) Motion for Reconsideration of Court’s Order Dismissing Plaintiff’s Second Claim for
Relief [Doc # 50]. After consideration of the motion, all related pleadings, and the case file, I
deny the EEOC’s motion.
I. Background
By Order dated December 2, 2014 (the “Order”), I granted Defendant CollegeAmerica
Denver, Inc.’s (“CollegeAmerica”) motion to dismiss the EEOC’s Second Claim for Relief. See
Doc # 16. This claim alleged that the Separation Agreements that CollegeAmerica provided to
the EEOC in connection with the EEOC’s investigation of Debbi Potts’ charges of
discrimination denied employees other than Potts the full exercise of their rights under the Age
Discrimination in Employment Act (the “ADEA”) and interfered with the statutorily assigned

responsibility of the EEOC and FEPAs to investigate charges of discrimination in violation of
Section 7(f)(4) of the ADEA, 29 U.S.C. § 626(f)(4). See Complaint, Doc # 1, ¶¶ 41-42.
Dismissal of this claim was based on my conclusion that I had no jurisdiction over this claim as a
result of the EEOC’s failure to satisfy the ADEA requirements of notice and conciliation.
The EEOC now asks me to reconsider the dismissal of its Second Claim for Relief based
on the subsequent United States Supreme Court case of Mach Mining, LLC v. EEOC, ___ U.S.
___, 135 S. Ct. 1645 (2015) and a purportedly erroneous factual finding made in the Order.
II. Standard of Review
Under Rule 54(b), Fed. R. Civ. P, a district court has discretionary authority to revise its
interlocutory orders prior to the entry of final judgment adjudicating all of the claims and all of
the parties’ rights and liabilities. Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir.
1988). “Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). A motion to reconsider may not be used “to revisit issues already addressed or advance
arguments that could have been raised in prior briefing.” Id.
III. Analysis
A. The Timeliness of the EEOC’s Motion for Reconsideration
Before getting to the substance of the EEOC’s arguments, I first address
CollegeAmerica’s argument that the EEOC’s motion should be denied on the basis that it is
untimely.

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The Order is dated December 2, 2014. Thus, the EEOC inexplicably waited eight months
to file its motion for reconsideration based in part on a purportedly erroneous factual finding that
was evident at the time the Order was issued. In fact, the EEOC noted this error, albeit in a brief
footnote, in a proposed surreply it sought to file to CollegeAmerica’s motion to dismiss. See
Doc #12, p. 11 n. 3. In addition, the EEOC did not file its motion for reconsideration for more
than three months after the Supreme Court issued its decision in the Mach Mining case which the
EEOC argues dictates the reversal of the dismissal of its Second Claim for Relief.
Tellingly, the EEOC fails to offer any explanation for the lengthy delay in the filing of its
motion for reconsideration. Not only is the EEOC’s wholly unexplained delay in filing its
motion to reconsider unreasonable in and of itself, but it has also placed CollegeAmerica in the
untenable position of potentially having to start the discovery process which is nearing
completion all over again. Under these circumstances, I deny the EEOC’s motion as untimely.
Nonetheless, in the absence of Tenth Circuit authority recognizing such a denial as an
appropriate exercise of my discretionary authority under Rule 54(b), I will proceed to address the
EEOC’s substantive arguments.
B. The EEOC’s Knowledge of the Separation Agreements
In the Order, I found that the EEOC was unaware of the existence or terms of the
Separation Agreements at the time it issued its December 20, 2013 Letter of Determination.
Based in part on this finding, I proceeded to find that the EEOC could not rely on the Letter of
Determination to satisfy the notice and conciliation requirements of the ADEA with respect to
the Separation Agreements. The EEOC argues that this finding was in error and directs my
attention to their statement that CollegeAmerica provided the EEOC with copies of the

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Separation Agreements during the investigation of Potts’ three charges of discrimination. See
also Complaint, ¶ 24 (“In responding to the charges of discrimination, CollegeAmerica provided
EEOC copies of [the Separation Agreements] ...”).
Though it was not clear from its response to CollegeAmerica’s motion to dismiss, the
EEOC has now, through reference to several exhibits that must be viewed in conjunction with
one another, affirmatively established that CollegeAmerica first provided copies of the
Separation Agreements to the EEOC in May of 2013, or well before the EEOC issued the Letter
of Determination. CollegeAmerica does not dispute that this was the case but argues that this
fact should not alter my previous analysis. I agree.
The Letter of Determination specifically references Potts as the charging party and her
three charges of discrimination against CollegeAmerica and advises CollegeAmerica that the
EEOC had determined that CollegeAmerica discriminated against Potts in violation of the
ADEA and sought to use an unlawful and invalid waiver to interfere with Potts’ protected rights
under the ADEA. See Ex. 5 to Motion to Dismiss. Although the Letter of Determination goes
on to request that CollegeAmerica, among other things, revise its form severance agreement to
comply with the ADEA and make it clear that employees retain the right to file charges and
cooperate with the EEOC, id., it does not reference the Separation Agreements in the section
stating its findings of unlawful practices by CollegeAmerica.
In response to the Letter of Determination, CollegeAmerica sent the EEOC a letter in
which it noted the requested change to its “form severance agreement” and clarified that the
agreement Potts signed following her resignation was distinguishable from its form severance
agreements, i.e. the Separation Agreements. See Ex. 7 to Motion to Dismiss. Thus, not only did

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the Letter of Determination fail, on its face, to provide CollegeAmerica with clear notice that the
Separation Agreements were part of the EEOC’s investigation, but it is apparent from
CollegeAmerica’s subsequent communications that it did not understand that to be the case.
After receiving CollegeAmerica’s correspondence, there is no evidence that the EEOC revised or
supplemented the Letter of Determination or otherwise notified CollegeAmerica that the scope
of its investigation had expanded beyond Potts’ charges of discrimination to include the
Separation Agreements.
Furthermore, the fact that the EEOC had copies of the Separation Agreements well
before it issued the Letter of Determination does not alter my finding that there is no evidence
that the Separation Agreements were addressed at the parties’ conciliation meeting or my
conclusion that this meeting therefore likewise failed to provide the requisite notice to
CollegeAmerica that these Agreements were part of the EEOC’s investigation. As for whether
the EEOC engaged in the requisite conciliation regarding the Separation Agreements, I next
consider whether the Mach Mining case dictates a different conclusion than that set forth in the
Order.
B. The Mach Mining Case
In Mach Mining, the Supreme Court considered whether and to what extent courts could
review the EEOC’s efforts at conciliation under Title VII. Mach Mining, supra, 135 S.Ct. at
1649 & 1651. After determining that a court may review the EEOC’s conciliation efforts, the
Supreme Court held that the proper scope of this review is limited to determining whether the
EEOC fulfilled its obligation to “inform the employer about the specific allegation” by means
which “properly describes both what the employer has done and which employees (or what class

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of employees) have suffered as a result” and to “engage the employer in some form of discussion
... so as to give the employer an opportunity to remedy the alleged discriminatory practice.” Id.
at 1653 & 1655-56.
Notably, the Mach Mining case does not address Title VII’s notice requirement which is
comparable to that of the ADEA, compare 42 U.S.C. § 2000e-5(b) with 29 U.S.C. § 626(d)(2),
and on which I partly relied in dismissing the EEOC’s Second Claim for Relief. To the extent
that notice is referenced in this case, it is only with respect to the fulfillment of the EEOC’s duty
to attempt conciliation of a discrimination charge. Id. at 1652 & 1655-56.
Moreover, the EEOC’s conciliation efforts with respect to the Separation Agreements
remain inadequate under the standards set forth in Mach Mining. Specifically, as set forth above,
the EEOC failed to provide adequate notice to CollegeAmerica that the Separation Agreements
were part of the EEOC investigation and findings of unlawful practices by CollegeAmerica.
There is likewise no evidence that the Separation Agreements were part of the parties’
discussions so as to give CollegeAmerica an opportunity to voluntarily revise them.
In Mach Mining, the Supreme Court included dictum that when a court finds in favor of
an employer on the question of whether the requisite conciliation occurred, “the appropriate
remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.”
Id. at 1656. This course of action, however, is not mandated under the circumstances of this
case. As previously noted, the Supreme Court’s analysis in Mach Mining is limited to Title
VII’s requirement of conciliation. In this case, I have concluded that the EEOC failed to satisfy
both the notice and conciliation requirements of the ADEA.

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A stay pending further conciliation efforts is also ill-suited to this case because, as a
result of the EEOC’s protracted delay in filing the current motion, the parties have proceeded
with discovery relating to the remaining claim of retaliation against Potts and set deadlines
accordingly. Allowing the EEOC to pursue its Second Claim for Relief after fulfilling the
requirements of notice and conciliation would require additional discovery and could
significantly delay resolution of the pending retaliation claim. I therefore conclude that
dismissal of the EEOC’s Second Claim for Relief is the appropriate remedy for the EEOC’s
failure to satisfy the ADEA’s requirements of notice and conciliation with respect to this claim.
C. CollegeAmerica’s Alternative Argument for Dsimissal of the EEOC’s Second Claim for
Relief
Because I dismissed the EEOC’s Second Claim for Relief for lack of jurisdiction, I
declined to address in my Order CollegeAmerica’s alternative argument that this claim fails as a
matter of law. I do so now though to further demonstrate that the dismissal of this claim was,
and remains, proper.
In Whitehead v. Oklahoma Gas & Elec. Co., 187 F.3d 1184 (10th Cir. 1999), the Tenth
Circuit considered whether the Older Workers Benefit Protection Act (the “OWBPA”), which
amended the ADEA and added provisions regarding the waiver of claims including Section
7(f)(4), “provide[s] plaintiffs with an independent cause of action for affirmative relief, other
than declaratory or injunctive relief to negate the validity of the waiver, as it applies to an
ADEA claim.” Id. at 1191 (emphasis added). Relying on the Supreme Court’s interpretation
that the OWBPA “governs the effect under federal law of waivers or releases on ADEA claims,”
the Tenth Circuit concluded that the OWBPA “simply determines whether an employee has, as a
matter of law, waived the right to bring a[n] ... ADEA claim” and “does not, by itself, determine
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in the first instance whether age discrimination has occurred.” Id. at 1192-93. The Tenth Circuit
further concluded that the district court properly dismissed plaintiff-appellants’ claim that a
violation of the OWBPA was sufficient, by itself, to establish age discrimination under the
ADEA. Id. at 1193.
The EEOC asserts that this case is distinguishable from Whitehead because it involves a
claim under Section 7(f)(4) of the OWBPA rather than Section 7(f)(1) which was at issue in
Whitehead. Section 7(f)(4) reads in its entirety as follows:
No waiver agreement may affect the [EEOC’s] rights and responsibilities to
enforce this chapter. No waiver may be used to justify interfering with the
protected right of an employee to file a charge or participate in an investigation or
proceeding conducted by the [EEOC].
There is no indication in the text of Section 7(f)(4) that it creates a independent cause of action,
and the EEOC cites no case law holding that it does.
In Wastak v. Lehigh Valley Health Network, 342 F.3d 281(3rd Cir. 2003), the Third
Circuit analyzed the language, structure, and legislative history of Section 7(f)(4) of the OWBPA
at length in analyzing the plaintiff’s argument that this provision rendered his otherwise valid
and enforceable waiver of his right to bring an ADEA claim void. The Third Circuit concluded
that “[a]t most, the statutory language [of Section 7(f)(4)] can be read to mean only that a
provision that purports to, for example, alter the EEOC’s rights to pursue and investigate a claim
that is filed, is unenforceable.” Id. at 289. The Third Circuit proceeded to find that there was no
violation of Section 7(f)(4) because the plaintiff did not allege that the challenged release
affected the EEOC’s rights and responsibilities or that his employer used it to justify interfering
with his protected right to file an EEOC charge which he in fact did.

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Here, Potts did not sign any of the Separation Agreements that are the basis of the
EEOC’s Second Claim for Relief and so her remaining claim for retaliation under the ADEA
cannot be used to support this claim. Furthermore, the EEOC has failed to identify any instance
in which the waiver provisions in the Separation Agreements affected its rights and abilities to
enforce the ADEA for the benefit of any other CollegeAmerica employee or were used to justify
interfering with an employee’s right to file an EEOC charge or participate in an EEOC
investigation or proceeding. Thus, even if Section 7(f)(4) of the OWBPA creates an independent
cause of action under the ADEA which is doubtful in view of the Tenth Circuit’s analysis in
Whitehead, the EEOC’s Complaint fails to adequately allege a violation of this provision of the
OWBPA. I therefore conclude that even if I had jurisdiction over the EEOC’s Second Claim for
Relief, this claim would fail as a matter of law.
IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that the EEOC’s Motion for
Reconsideration of Court’s Order Dismissing Plaintiff’s Second Claim for Relief [Doc # 50] is
DENIED.

Dated: October

23 , 2015 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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