Equal Employment Opportunity Commission v. Mach Mining, LLC

Filing 140

MEMORANDUM AND ORDER. Signed by Judge J. Phil Gilbert on 1/19/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
Case No. 11-cv-00879-JPG-PMF
vs.
MACH MINING, LLC,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff Equal Employment Opportunity
Commission’s (“EEOC”) Motion (Doc. 133) to Strike “Section F” of Defendant Mach Mining,
LLC’s (“Mach Mining”) Memorandum in Opposition to EEOC’s Motion for Partial Summary
Judgment and to Bar any Future Submission of “Anything Said or Done During Conciliation”
and EEOC’s Motion (Doc. 137) to Strike Paragraphs 6-14 of Defendant’s Exhibit A, and
Paragraphs 4-12 of its Statement of Additional Undisputed Facts from its Opposition to EEOC’s
Motion for Partial Summary Judgment.
Also before the Court is EEOC’s Renewed Motion (Doc. 134) for Partial Summary
Judgment on Defendant Mach Mining’s Conciliation Affirmative Defense. Mach Mining filed a
timely response to each of these motions (Docs. 135, 136, & 139).
1. Background.
The EEOC filed the instant suit on behalf of Brooke Petkas and a class of female
applicants who had applied for non-office jobs at Mach Mining. According to the EEOC, Mach
Mining “has never hired a single female for a mining-related position,” and “did not even have a
women’s bathroom on its mining premises.” (Doc. 32, p. 1-2). The complaint alleges that Mach

Mining’s Johnston City, Illinois, facility engaged in a pattern or practice of unlawful
employment practices since at least January 1, 2006, in violation of Title VII, by engaging in sex
discrimination. In its answer (Doc. 10), Mach Mining asserted the affirmative defense that the
EEOC failed to conciliate in good faith.
The EEOC motioned (Doc. 32) for partial summary judgment on Mach Mining’s Failure
to Conciliate Affirmative Defense and this Court denied the motion (Doc. 55). EEOC then filed
a Motion (Doc. 59) for Reconsideration of the denial, or in the alternative, a Certification for
Appeal under 28 U.S.C. §1292(b). The Court held oral arguments and denied reconsideration of
its order, but granted the motion to certify (Doc. 86). The Court found that the following
questions met the 28 U.S.C. §1292(b) requirements:
May courts review the EEOC’s informal efforts to secure a conciliation
agreement acceptable to the EEOC before filing suit?
If courts may review the EEOC’s conciliation efforts, should the reviewing court
apply a deferential or heightened scrutiny standard of review?
The issue was argued before the United States Court of Appeals for the Seventh Circuit
on October 29, 2013 and decided on December 20, 2013. The appellate court held that:
We need not say more about remedies because we hold that alleged failures by the
EEOC in the conciliation process simply do not support an affirmative defense for
employers charged with employment discrimination…..The EEOC is entitled to
summary judgment on defendant Mach Mining’s affirmative defense. E.E.O.C. v.
Mach Mining, LLC, 738 F.3d 171, 184 (7th Cir. 2013).
The Seventh Circuit reversed and remanded the case back to this Court for proceedings
on the merits; however, Mach Mining petitioned for certiorari to the United States Supreme
Court and certiorari was granted. The Supreme Court heard arguments on January 13, 2015 and
decided on April 29, 2015. It held that:
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We hold that a court may review whether the EEOC satisfied its statutory
obligation to attempt conciliation before filing suit. But we find that the scope of
that review is narrow, thus recognizing the EEOC’s extensive discretion to
determine the kind and amount of communication with an employer appropriate
in any given case. Mach Mining. LLC v. E.E.O.C., 135 S.Ct. 1645, 1649 (2015).
The judgment of the Court of Appeals was vacated and the matter was remanded back to
the Seventh Circuit for further proceedings. Upon remand, the Seventh Circuit remanded back to
the district court for proceedings consistent with the opinion of the Supreme Court.
EEOC now renews it motion for partial summary judgment on Mach Mining’s
conciliation affirmative defense. However, before considering the merits of the motion for
partial summary judgment, the Court must first address EEOC’s Motions to Strike (Docs. 133 &
137).
2. EEOC’s Motions to Strike.
In its first motion (Doc. 133) to strike, EEOC requests that this Court strike “Section F”
of Mach Mining’s Memorandum (Doc. 42) in Opposition to EEOC’s Initial Motion for Partial
Summary Judgment (Doc. 32). EEOC had filed a previous motion (Doc. 45) to strike “Section
F” which this Court denied (Doc. 55).
The Supreme Court stated that this Court “failed to give effect” to the non-disclosure
provision of 42 U.S.C. § 2000e-5 when it denied the initial motion to strike and as such,
“undermined the conciliation process itself.” Id. at1655.
§ 2000e-5(b) of 42 U.S.C. provides that, “Nothing said or done during and as part of such
informal endeavors may be made public by the Commission, its officers or employees, or used as
evidence in a subsequent proceeding without the written consent of the person concerned.”

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EEOC argues that Section F of Mach Mining’s Memorandum provides information with
regard to the conciliation process between Mach Mining and the EEOC in violation of 42 U.S.C.
§ 2000e-5.
Mach Mining argues1 that Section F focuses on what was missing from the conciliation
process – not what was actually “said or done.” Mach Mining further argues that Section F does
not “reveal statements2” made during conciliation and therefore, did not reveal “actual
communications between the parties.”
Mach Mining cites to EEOC v. OhioHealth Corp., No. 2:13-cv-780, 2015 WL 3952339
(S.D. Ohio June 29, 2015) in support of its arguments3. This case is not persuasive to the Court
as it impermissibly considered positions taken by the parties during the conciliation.

The

OhioHealth court discussed whether a “final” offer was made and the EEOC’s failure to provide
supporting calculations for a damage demand. Id. at *3 - *4.

OhioHealth court’s conclusion

that an unsupported “take-it-or-leave-it” demand letter could not constitute an attempt to engage
in conciliation, see Id. at * 4, is at odds with Mach Mining’s rejection that the EEOC is required
to lay out the factual and legal bases for its position and/or provide calculations underlying its
monetary demands. Mach Mining, 135 S.Ct. at 1653-4.
The Supreme Court provided a guideline with regard to judicial review of the informal
“conference, conciliation, and persuasion” and what information the Court may consider. It held
that “a court looks only to whether the EEOC attempted to confer about a charge, and not to
what happened (i.e., statements made or positions taken) during those discussions.” Id. at 1656.
1

Mach Mining’s first argument is that the motion to strike is procedurally improper as Fed.R.Civ.P. 12(f) only
applies to pleadings. However, EEOC brings the motion to strike pursuant to the provisions of 42 U.S.C. § 2000e5(b)and therefore the motion is procedurally proper.
2
Emphasis in original.
3
EEOC v. OhioHealth Corps. is cited by Mach Mining in response to both motions to strike and the motion for
partial summary judgment. The reasoning of the Court with regard this case will be outlined here and not
repeated in the analysis of the motion for partial summary judgment.

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Section F does not provide specific “statements,” but it does indicate the positions of the
parties and provides specific actions of the EEOC during conciliation4.

A “failure” to provide

information indicates a “request” for information and “counteroffers” indicate “offers.”
Although the substantive details are not provided, Section F does indicate things “said or done”
during the conciliation process and goes beyond “whether EEOC attempted to confer about a
charge.”
As such, it is prohibited by 42 U.S.C. § 2000e-5(b) and EEOC’s Motion (Doc. 133) to
Strike “Section F” of Mach Mining, LLC’s Memorandum in Opposition to EEOC’s Motion for
Partial Summary Judgment and to Bar any Future Submission of “Anything Said or Done”
during Conciliation is GRANTED. Section F of Mach Mining, LLC’s Memorandum (Doc. 42)
in Opposition to EEOC’s Motion for Partial Summary Judgment is STRICKEN. Further, in
accordance with 42 U.S.C. § 2000e-5(b), the parties are BARRED from disclosing anything said
or done during and/or as part of the informal methods of “conference, conciliation, and
persuasion” in this matter without the written consent of the persons concerned.
EEOC’s second Motion (Doc. 137) to Strike is also based on 42 U.S.C. § 2000e-5(b) and
requests that this Court strike paragraphs 6–14 of Mach Mining’s Exhibit A and paragraphs 4-12
of its statement of additional undisputed facts from its Memorandum (Doc. 136) in Opposition to
EEOC’s Motion for Partial Summary Judgment. Paragraphs 6 – 14 of Exhibit A and paragraphs
4-12 of the Memorandum are identical.
Based on the same reasoning above, the Court agree that paragraphs 6-12 & 14 of Exhibit
A and paragraphs 4-10 & 12 of the memorandum should be stricken; however, paragraph 13 and
11, respectively, attests to the letter sent by the EEOC stating that conciliation efforts had failed

4

Section F chronicles the information requests of Mach Mining; EEOC’s lack of response; Mach Mining response
to an offer (although no specific facts) and case law in support of Mach Mining’s position.

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and the date of this lawsuit. The EEOC has previously stated that such letters are available for
review5 and the date of filing in this matter is public record. The end of the EEOC’s fiscal year
is also publicly available (although the Court is unsure of the relevance.) The Court does not
believe that information contained in these paragraphs contain statements made or positions
taken during conciliation.
Therefore, EEOC’s second Motion (Doc. 137) to Strike is GRANTED in part.
Paragraphs 6–1 & 14 of Mach Mining’s Exhibit A and paragraphs 4-10 & 13 of Mach Mining’s
statement of additional undisputed facts in its Memorandum (Doc. 136) in Opposition to EEOC’s
Motion for Partial Summary Judgment are STRICKEN.
3. EEOC’s Motion for Partial Summary Judgment.
Summary judgment must be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. The Court will construe
all evidence in the light most favorable to Mach Mining and the EEOC has the burden to
demonstrate that no reasonable jury could find for Mach Mining on the issue in question.
The EEOC is required, after an investigation and upon a finding that there is reasonable
cause to believe a charge is true, to “endeavor to eliminate any such alleged unlawful

5

“According to the Government, those “bookend” letters are all a court ever needs for review.” Mach Mining. LLC
v. E.E.O.C., 135 S.Ct. 1645, 1653 (2015).

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employment practice by informal methods of conference, conciliation, and persuasion.” 42
U.S.C. § 2000e-5(b).
In the Supreme Court’s opinion in this matter, it put forth a two part test to determine
whether the EEOC has complied with the statutory requirement of 42 U.S.C. § 2000e-5(b). First,
the “EEOC must inform the employer about the specific allegation, as the Commission typically
does in a letter announcing its determination of ‘reasonable cause.’

Such notice properly

describes both what the employer has done and which employees (or what class of employees)
have suffered as a result.” Mach Mining. LLC v. E.E.O.C., 135 S.Ct. 1645, 1652 (2015).
Second, the EEOC must try to engage the employer in an informal method of
“conference, conciliation, and persuasion.”

The informal method requires “some form of

discussion (whether written or oral), so as to give the employer an opportunity to remedy the
allegedly discriminatory practice.” Id. at 1656. However, it is limited and the “EEOC need only
‘endeavor’ to conciliate a claim without having to devote a set amount of time or resources to
that project.” Further, there are no specific steps or measures that the EEOC is required to take
and the EEOC has full discretion to use whatever informal procedure it deems appropriate in
each case. The EEOC also has full discretion to determine when such informal means are
unsuccessful and when to proceed to litigation. Id. at 1654.
Judicial review is limited to the determination that the EEOC, “actually, and not just
purportedly” attempted conciliation. It is a narrow review that “looks only to whether the EEOC
attempted to confer about a charge, and not to what happened (i.e., statements made or positions
taken) during those discussions.” Id. at 1656. The review is narrow, but “bookend” letters from
the EEOC inviting conciliation and then finding conciliation was not successful, without

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evidence that there was communication in between the letters in an attempt to remedy the
discriminatory employment practice, are not enough. Id. at 1653.
The EEOC sent the Determination of reasonable cause letter to Mach Mining on
September 17, 2010. The letter stated that:
[T]he evidence obtained during the course of the investigation establishes
reasonable cause to believe that Respondent discriminated against Charging
Party and a class of female applicants, because of their sex, in that
Respondent failed to recruit and hire them, in violation of Title VII. (Doc.
117-4).
The letter satisfies the first prong as it properly describes both what Mach Mining has
done (because of their sex, Mach Mining failed to recruit and hire) and which individuals (or
what class of individuals) have suffered as a result (Charging Part and a class of female
applicants).
The second prong is more difficult to review. The Supreme Court has indicated that, “A
sworn affidavit from the EEOC stating that it has performed its obligations noted above but that
its efforts have failed will usually suffice to show that it has met the conciliation requirement.”
However, if “the employer provides credible evidence of its own, in the form of an affidavit or
otherwise, indicating that the EEOC did not provide the requisite information about the charge or
attempt to engage in a discussion about conciliating the claim, a court must conduct the
factfinding necessary to decide that limited dispute.” Id. at1656.
The EEOC provided the Declaration of Juianne Bowman (Doc. 134-2) which states that,
“the EEOC engaged in oral and written communications with Mach Mining to provide Mach
Mining with the opportunity to remedy the discriminatory practices described in the

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Determination.” This affidavit would be sufficient to show that the EEOC met its conciliation
requirement in this matter; however, Mach Mining produced the Affidavit of R. Lance Witcher.6
Mr. Witcher’s affidavit does not state that the EEOC failed to conciliate in any manner–
only that Mach Mining had requested information from the EEOC that was “necessary to
determine whether EEOC satisfied its pre-suit conciliation obligations” and Mach Mining’s
Requests for Admission to the EEOC. The Court notes that Mach Mining’s memorandum of
opposition argues that the EEOC failed to provide it an “opportunity to remedy” but Mr.
Witcher’s affidavit does not attest to that statement.
As previously stated, the Supreme Court rejected the argument that the EEOC was
required to “lay out ‘the factual and legal basis for’ all its positions, including the calculations
underlying any monetary request.” It also rejected the argument that the EECO, “must refrain
from making “take-it-or-leave –it” offers. Id. at 1654, citing Brief for Petitioner 39.
To refute the EEOC’s affidavit, Mach Mining was required to provide an affidavit, or
other evidence, indicating that the EEOC did not provide the requisite information about the
charge or attempt to engage in a discussion about conciliating the claim. The affidavit provided
by Mach Mining only indicates that the EEOC did not provide all the information that Mach
Mining requested and not that it failed to provide the requisite information.
As stated above, the scope of judicial review is narrow with regard to conciliation on
discrimination charges. It focuses on whether the EEOC endeavored to conciliate – not the
extent or means of conciliation.

The EEOC provided Mach Mining with the proper notice and

based on the declaration of Juliane Bowman, the EEOC engaged in oral and written
communications with Mach Mining to provide Mach Mining with the opportunity to remedy the

6

The Court is disregarding those portions of Mr. Witcher’s affidavit that are ordered stricken by this order.

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discriminatory practices. Therefore, the EEOC has met the two part test set out by the Supreme
Court in Mach Mining. LLC v. E.E.O.C., 135 S.Ct. 1645, 1652 (2015).
4.

Conclusion.

The Court understands Mach Mining’s position that it should be entitled to receive
demand calculations and additional information during the conciliation process; however, this
Court cannot direct that such information be provided. The Supreme Court has held that the
EEOC has no procedural requirements with regard to conciliation beyond engaging in some form
of discussion and there is no dispute that some form of discussion did occur in this matter.
The Court notes that conciliation is simply one part of a process and an employer who is
dissatisfied with conciliation has the option of proceeding to litigation. Although § 2000e-5(b)
of 42 U.S.C prohibits the disclosure of “anything said or done” during the informal conciliation
process, it does not prohibit disclosure of information obtained during the EEOC’s investigation
and such information becomes available through discovery.
Based on the above, EEOC’s Motion (Doc. 133) to Strike “Section F” of Defendant
Mach Mining, LLC’s (“Mach Mining”) Memorandum in Opposition to EEOC’s Motion for
Partial Summary Judgment and to Bar any Future Submission of “Anything Said or Done During
Conciliation is GRANTED. “Section F” of Mach Mining, LLC’s Memorandum (Doc. 42) in
Opposition to EEOC’s Motion for Partial Summary Judgment is STRICKEN. Further, in
accordance with 42 U.S.C. § 2000e-5(b), the parties are BARRED from disclosing anything said
or done during and/or as part of the informal methods of “conference, conciliation, and
persuasion” in this matter without the written consent of the persons concerned.
EEOC’s Motion (Doc. 137) to Strike Paragraphs 6-14 of Defendant’s Exhibit A, and
Paragraphs 4-12 of its Statement of Additional Undisputed Facts from its Opposition to EEOC’s

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Motion for Partial Summary Judgment is GRANTED in part.

Paragraphs 6-12 & 14 of

Defendant’s Exhibit A, and Paragraphs 4-10 & 12 of its Statement of Additional Undisputed
Facts from Mach Mining’s Memorandum in Opposition to EEOC’s Motion for Partial Summary
Judgment are STRICKEN.
Finally, EEOC’s Renewed Motion (Doc. 134) for Partial Summary Judgment on
Defendant Mach Mining’s Conciliation Affirmative Defense is GRANTED and the Court finds
as a matter of law that the EEOC complied with 42 U.S.C. § 2000e-5(b) prior to filing this suit.
The parties are DIRECTED to submit a proposed amended scheduling order to
Magistrate Judge Frazier within 21 days after the date of this order.
IT IS SO ORDERED.
DATED: 1/19/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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