Barr v. One Touch Direct, LLC et al

Filing 75

ORDER: Plaintiff Alfred Barr's Motion to Review Administrative Prerequisites (Doc. # 61 ) is denied. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/15/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALFRED BARR,
Plaintiff,
v.

Case No. 8:15-cv-2391-T-33MAP

ONE TOUCH DIRECT, LLC, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff

Alfred

Barr’s

Motion

to

Review

Administrative

Prerequisites (Doc. # 61), filed on March 14, 2016. Defendants
One

Touch

Direct,

DPG

Employee

Leasing,

LLC,

and

AT&T

Services, Inc. filed a response on March 31, 2016. (Doc. #
66). The Motion is ripe for review and, for the reasons stated
herein, the Court denies the Motion.
Discussion
A.

Background

This action arises from, among other things, alleged
work-place discrimination. (Doc. ## 1, 64). Barr alleges he
filed

a

complaint

with

the

Equal

Employment

Opportunity

Commission (EEOC) in January of 2014. (Doc. # 64 at ¶ 14);
see also (Doc. # 61 at ¶ 1) (stating, Barr “served the EEOC

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.

.

.

with

verified

complaints

[on]

January

24,

2014,

identifying three respondents, AT&T, [One Touch Direct], and
DPG”). The EEOC assigned charge number 511-2014-00861, 5112015-01732, and 511-2015-01742 to the charges against One
Touch Direct, AT&T, and DPG, respectively. (Doc. # 68-1 at 46).1
A notice of charge of discrimination was sent to One
Touch Direct. (Id. at 4). With respect to the charge against
One Touch Direct, the parties agreed to mediate on January
15, 2015. (Id. at 10, 15-16); see also 29 C.F.R. § 1601.20
(stating the Commission may encourage settlement prior to the
issuance of a reasonable-cause determination and authorizing
certain

directors,

or

their

designees,

to

sign

such

settlements). A settlement agreement was prepared, but it was
not executed by One Touch Direct or the EEOC. (Doc. # 68-1 at
11-12). Thereafter, a notice of charge of discrimination was
sent to AT&T and DPG. (Id. at 5-6).
Then, on July 9, 2015, the EEOC issued Barr two rightto-sue letters, one as to the charge against AT&T and one as

1

The Court notes Barr’s supplement (Doc. # 68) was terminated
because he used the incorrect filing event. Barr refiled his
supplement (Doc. # 71), but the attachments are discoveryrelated, not the documents Barr originally attempted to file.
Compare (Doc. # 68-1), with (Doc. # 71-1).

2 

to the charge against DPG. (Id. at 8-9, 13-14) (showing rightto-sue letters issued July 9, 2015, and mailed July 10, 2015).
Barr was also issued a right-to-sue letter as to One Touch
Direct, which was mailed on August 11, 2015. (Id. at 7). All
three right-to-sue letters indicated the EEOC was “unable to
conclude

that

the

information

obtained

establishe[d]

violations of the statutes.” (Id. at 7-9).
Barr instituted the instant action on October 9, 2015.
(Doc. # 1). While this action was pending, the EEOC issued a
notice of intent to revoke pursuant to 29 C.F.R. § 1601.19(b)
as to the charge against DPG on November 4, 2015. (Doc. # 681 at 14). The EEOC also issued a notice of intent to revoke
pursuant to 29 C.F.R. § 1601.19(b) as to the charge against
AT&T on November 9, 2015. (Id. at 13).
Litigation proceeded, and with leave of Court, Barr
filed an Amended Complaint on January 19, 2016. (Doc. ## 33,
38). One Touch Direct, AT&T, and DPG moved to dismiss the
Amended Complaint in its entirety (Doc. # 43) and, because
Barr failed to timely respond, the Court granted the motion
as unopposed (Doc. # 50). Upon Barr’s motion (Doc. # 53), the
Court granted leave to file another amended complaint (Doc.
# 56). The Second Amended Complaint contains five Counts:

3 

Count I——“Violations of Title VII is Plead Against
All Defendants’ [sic] Equally”;
Count II——“Florida’s
Against AT&T and OTD”;

Whistleblower

Act

(FWA)

Count III——“Violations of the FLSA – 29 CFR 1620.33
– Against OTD, DPG, Mole and Reed”;
Count IV——“Violations of Title I ADA Against OTD,
DPG, Mole and Reed”; and
Count V——“Interference with
Relationships Against AT&T.”

At-Will

Business

(Doc. # 64 at 4, 6, 9, 12, 14) (capitalization and bolding
not in original).
Barr’s

present

Motion

“challenges

the

scope

of

the

investigative procedures prior to ‘any action’ by the EEOC,
and prior to judicial action by the District Court.” (Doc. #
61 at 2). In particular, Barr raises two arguments in support
of his request for the Court to remand this action to the
EEOC: (1) the EEOC did not thoroughly investigate Barr’s
claims of discrimination and (2) the EEOC did not attempt to
conciliate

Barr’s

claims.

The

Motion

also

questions

the

effect that the two notices of intent to revoke have on this
action.
B.

Analysis

As a preliminary matter, the Court notes that only Barr’s
Title VII and ADA claims are subject to the jurisdiction of

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the EEOC. See 42 U.S.C. §§ 2000e-4, 12117(a). In addition,
for reasons discussed below, it bears emphasis that the EEOC
is not the plaintiff in, nor a party to, this action.
1.

Investigate

Barr’s arguments on this point are less than clear. Barr
states, “[t]he scope of the investigation is being challenged
. . . . The scope was so defective that the process amounts
to a superficial, little more than precursors to RTS dismissal
letters . . . .” (Doc. # 61 at ¶ 35). Barr further states,
“the EEOC divided the defendants’ into irregular inquiry
numbers not the normal case numbers and waived conciliation
without obtaining any positions statements or reply to the
charges;…how is this an investigation?” (Id. at ¶ 46). Thus,
the

Court

understands

Barr’s

argument

to

be

one

that

challenges the manner by which the EEOC investigated his
charge of discrimination.
However, such an argument is precluded by well-settled
case law. See Martin v. E.E.O.C., 19 F. Supp. 3d 291, 303
(D.D.C. 2014) (stating, “Title VII does not provide——and the
Court is not aware of——any specific parameters for how the
EEOC must conduct an investigation”). Several Circuits have
also held a court may not review the sufficiency of an
investigation. E.E.O.C. v. Sterling Jewelers, Inc., 801 F.3d

5 

96, 101 (2d Cir. 2015) (stating, “courts may not review the
sufficiency of an investigation . . .”); EEOC v. CRST Van
Expedited, Inc., 679 F.3d 657, 674 (8th Cir. 2012) (stating,
“as

a

general

rule,

‘the

nature

and

extent

of

an

EEOC

investigation into a discrimination claim is a matter within
the discretion of that agency’” (quoting E.E.O.C. v. Keco
Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984))); Newsome
v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002) (same).
Furthermore,

to

the

extent

Barr’s

Motion

can

be

construed as challenging whether an investigation occurred,
the Court finds Barr’s arguments unpersuasive. Although Barr
asserts “the RTS’s were issued falsely claiming there was an
investigation,” (Doc. # 61 at ¶ 42), there is no evidence in
the record supporting such an assertion. The notices of intent
to revoke do not explain why the EEOC issued those notices,
there is nothing in the record indicating whether the entire
administrative record has been filed, and the timing of when
the EEOC issued the various notices and letters is not
indicative of the falsity Barr argues exists. The Court also
notes “Title VII ‘does not condition an individual’s right to
sue

upon

the

EEOC’s

performance

of

its

administrative

duties.’” Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1063
(11th Cir. 1994) (citation omitted).

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In addition, the cases relied on by Barr in support of
his

argument

vis-à-vis

the

EEOC’s

investigation

are

not

persuasive. To begin with, E.E.O.C. v. Sterling Jewelers,
Inc., 3 F. Supp. 3d 57 (W.D.N.Y. 2014), was vacated by the
Second Circuit. Sterling Jewelers, 801 F.3d at 104. Likewise,
E.E.O.C. v. CRST Van Expedited, Inc., 670 F.3d 897 (8th Cir.
2012), was vacated on rehearing. CRST Van Expedited, 679 F.3d
at 658.
Moreover, several of the cases Barr cites address the
early issuance of a right-to-sue letter pursuant to 29 C.F.R.
§ 1601.28(a)(2). See Martini v. Fed. Nat’l Mortg. Ass’n, 178
F.3d 1336, 1339 (D.C. Cir. 1999); Simler v. Harrison Cty.
Hosp., 110 F. Supp. 2d 886, 890 (S.D. Ind. 2000); Stetz v.
Reeher Enters., Inc., 70 F. Supp. 2d 119, 124 (N.D.N.Y. 1999).
But, nothing in the record indicates the right-to-sue letters
in this case were issued pursuant 29 C.F.R. § 1601.28(a)(2).
Additionally, Barr does not challenge the validity of 29
C.F.R. § 1601.28(a)(2) and, even if he were attempting to do
so, the Eleventh Circuit has previously held the regulation
valid. Sims, 22 F.3d at 1062-63.
Barr’s reliance on Lang v. Kohl’s Food Stores, Inc., 217
F.3d 919, 926 (7th Cir. 2000), is also misplaced. In his
Motion, Barr cites Lang as ruling that cursory treatment of

7 

complaints by the EEOC does not comport with the EEOC’s
obligation. (Doc. # 61 at ¶ 39). In actuality, Lang briefly
discussed the EEOC investigation in that case during the
court’s analysis of whether the district court erred in its
application of Federal Rule of Evidence 403. 217 F.3d at 92528. In a similar vein, Barr’s reliance on Gibson v. West, 201
F.3d 990, 993 (7th Cir. 2000) (holding failure to exhaust
administrative remedies is not a jurisdictional flaw), does
nothing to advance his argument in favor of remand given the
fact

the

present

Motion

does

not

address

whether

Barr

exhausted his administrative remedies.
Barr also cites Mach Mining, LLC v. E.E.O.C., 135 S. Ct.
1645, 1649 (2015), Marshall v. Sun Oil Co. of Pennsylvania,
592 F.2d 563, 566 (10th Cir. 1979), and Brennan v. Ace
Hardware Corp., 495 F.2d 368, 374 (8th Cir. 1974). However,
these cases address conciliation, not investigation. As such,
they provide little to no support for Barr’s argument with
respect to the EEOC’s investigation and, as discussed below,
the conciliation requirement does not apply in suits brought
by private litigants, nor was it trigged in this case.
Of all the cases cited by Barr in support of his argument
as to the EEOC’s investigation, only one addresses a situation
wherein a court remanded a Title VII action instituted by a

8 

private litigant against his employer to the EEOC because the
EEOC issued a right-to-sue letter before the expiration of
180 days: Allaire v. HSBC Bank USA, No. 00-CV-0084E(SC), 2000
WL 743976, at *1 (W.D.N.Y. May 2, 2000). However, Allaire is
readily distinguishable from this case. In Allaire, the EEOC
issued a right-to-sue letter (without citing 29 C.F.R. §
1601.28(a)(2)) within five days of the charge being filed.
Id. In stark contrast, Barr filed his charge of discrimination
in January of 2014, and the EEOC issued right-to-sue letters
in July and August of 2015. (Doc. # 68-1 at 7-9). Thus, the
reasoning of Allaire, which centered on a five day turnaround time by the EEOC, is inapplicable in this case.
In short, the Court declines Barr’s invitation to review
the sufficiency of the EEOC’s investigation. And, to the
extent Barr’s Motion can be construed as challenging whether
an investigation occurred, Barr has not carried his burden of
persuasion as the movant.
2.
Although

Conciliate
recognizing

Title

VII’s

conciliation

requirement does not apply in a suit brought by a private
litigant against his or her employer (Doc. # 61 at 2 n.5
(citing DeAngelis v. Circle K Stores, Inc., No. 14-21112GAYLES/TURNOFF, 2015 WL 4397528, at *5 (S.D. Fla. July 17,

9 

2015))), Barr nevertheless insists the Court must review
whether the EEOC complied with the conciliation requirement.
However, as noted in DeAngelis, “the Court need not ascertain
whether the EEOC made an attempt to conciliate in good faith
because it is not relevant to Plaintiff’s action.” 2015 WL
4397528, at *5.
Furthermore, even if the Court were to review whether
the EEOC complied with the conciliation requirement, the
conciliation

requirement

is

only

triggered

if

the

EEOC

determines there is reasonable cause to believe a charge is
true. 42 U.S.C. § 2000e-5(b) (stating, “[i]f 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”). In this case, the EEOC issued three right-tosue letters. (Doc. # 68-1 at 7-9). All three right-to-sue
letters

stated

that

the

EEOC

was

unable

to

conclude

a

violation had been established. (Id.). Thus, the EEOC was not
required to endeavor to conciliate Barr’s claims.
3.

Notice of Intent to Revoke

Barr also questions the effect that the two notices of
intent to revoke have on this action. The EEOC may reconsider

10 

a final determination of no reasonable cause. 29 C.F.R. §
1601.19(b). A notice of intent to reconsider must be issued
to

all

parties

of

the

charge,

if

the

EEOC

decides

to

reconsider a final determination of no reasonable cause. Id.
Furthermore, the regulation itself addresses the effect
of a notice of intent to reconsider. In particular, the
regulation provides:
[i]f such notice of intent to reconsider is issued
within 90 days of receipt of the final no cause
determination, and the person claiming to be
aggrieved or the person on whose behalf a charge
was filed has not filed suit and did not request
and receive a notice of right to sue pursuant to §
1601.28(a) (1) or (2), the notice of intent to
reconsider shall vacate the letter of determination
and shall revoke the charging party’s right to
bring suit within 90 days.
Id. However, “[i]f the 90 day suit period has expired, [or]
the charging party has filed suit . . ., the notice of intent
to reconsider shall vacate the letter of determination, but
shall not revoke the charging party’s right to sue in 90
days.” Id.
In this case, only two notices of intent to revoke were
issued: one with respect to the charge against AT&T and one
with respect to the charge against DPG. (Doc. # 68-1 at 1314). In each instance, well more than 90 days elapsed between
the issuance of the right-to-sue letter and the issuance of

11 

the notice of intent to revoke. See (Id. at 5-6, 13-14).
Furthermore, Barr filed the present action against, among
others, AT&T and DPG before the notices of intent to revoke
were issued by the EEOC. As such, although the notices of
intent

to

revoke

vacated

the

related

letters

of

determination, they had no effect on Barr’s ability to sue in
this Court.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Alfred Barr’s Motion to Review Administrative
Prerequisites (Doc. # 61) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
15th day of April, 2016.

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