Equal Employment Opportunity Commission v. Mach Mining, LLC

Filing 55

MEMORANDUM AND ORDER Denying 32 MOTION for Partial Summary Judgment ON DEFENDANTS FAILURE TO CONCILIATE AFFIRMATIVE DEFENSE filed by Equal Employment Opportunity Commission, Denying 45 MOTION to Strike 42 Memorandum in Opposition to Motion Section F filed by Equal Employment Opportunity Commission. Signed by Judge J. Phil Gilbert on 1/28/13. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
Case No. 11-cv-879-JPG-PMF
vs.
MACH MINING, LLC,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Equal Employment Opportunity
Commission’s (“EEOC”) (1) motion for summary judgment on defendant Mach Mining, LLC’s
(“Mach Mining”) failure to conciliate affirmative defense (Doc. 32); and (2) motion to strike
“Section F” of Mach Mining’s memorandum in opposition to the EEOC’s motion for partial
summary judgment (Doc. 45). For the following reasons, the Court denies the EEOC’s motions.
1. Facts
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. Specifically, those unlawful “practices
included, but are not limited to failing or refusing to hire females into mining and related (nonoffice) positions because of their sex.” Doc. 2, p. 2. The EEOC further alleges that Mach
Mining “has utilized hiring practices that cause a disparate impact on the basis of sex” through

its practice of “hiring only applicants who are referred by current employees.” Doc. 2, p. 3. In
its answer, Mach Mining asserted the affirmative defense that the EEOC failed to conciliate in
good faith. The EEOC, in its instant motion for summary judgment, argues that EEOC v.
Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005) compels this Court to conclude that its
conciliation process is not subject to judicial review.
2. Analysis
Summary judgment is appropriate where “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). With this standard in mind, the Court will
consider the EEOC’s argument that it is entitled to judgment as matter of law.
Upon the EEOC’s receipt of a charge of discrimination, the EEOC must notice the
employer of the charge, investigate the allegations, and make a determination as to whether there
is “reasonable cause” to believe the allegations took place. 42 U.S.C. § 2000e-5(b). Thereafter,
[i]f the [EEOC] determines [] 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.
42 U.S.C. § 2000e-f(b). As a prerequisite to filing suit, EEOC must give the employer a chance
to conciliate. Id.; 42 U.S.C. § 2000e-5(f)(1) (“If . . . the [EEOC] has been unable to secure from
the respondent a conciliation agreement acceptable to the [EEOC], the [EEOC] may bring a civil
action . . . .”).
“The [EEOC]’s duty to attempt conciliation is one of its most essential functions.”
EEOC v. Radiator Specialty Co, 610 F.2d 178, 183 (4th Cir. 1979). Its conciliation attempt must
be made in “good faith.” EEOC v. First Midwest Bank, N.A., 14 F. Supp. 2d 1028, 1031 (N.D.
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Ill. 1998) (citing EEOC v. Keco Indus., Inc., 748 F.2d 1087, 1102 (6th Cir. 1984); EEOC v. Zia
Co., 582 F.2d 527, 533 (10th Cir. 1978)); see also EEOC v. Dial Corp., 156 F. Supp. 2d 926,
939 (N.D. Ill 2001). However, “[t]he judiciary’s role in reviewing the conciliation process is
limited, as the ‘form and substance of the EEOC’s conciliation proposals are within the agency’s
discretion and, therefore, immune from judicial second-guessing.” See First Midwest Bank,
N.A., 14 F. Supp. 2d at 1031. (citing Keco Indus., Inc., 748 F.2d at 1102; EEOC v. Acorn Niles
Corp., No. 93-cv-5981, 1995 WL 519976, at *6 (N.D. Ill. Aug. 30, 1995)).
Currently, there is a circuit split as to the scope of inquiry a court may make into the
EEOC’s statutory conciliation obligation. See, e.g., EEOC v. St. Alexius Med. Ctr., 12-C-7646,
2012 WL 6590625, at *1 (N.D. Ill. Dec. 18, 2012); EEOC v. United Rd. Towing, Inc., No. 10-C6259, 2012 WL 1830099, at *4 (N.D. Ill. May 11, 2012); EEOC v. McGee Bros., No. 10-cv-142,
2011 WL 1542148, at *4 (W.D.N.C. Apr. 21, 2011). Some circuits employee a “deferential
standard” and others use a “heightened scrutiny standard.” United Rd. Towing, Inc., 2012 WL
1830099, at *4 (citing EEOC v. McGee Bros., No. 10-cv-142, 2011 WL 1542148, at *4
(W.D.N.C. Apr. 21, 2011)). The Sixth Circuit, for example, employs a deferential standard,
holding that
the district court should only determine whether the EEOC made an attempt at
conciliation. 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.
EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984); accord EEOC v. Radiator
Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979) (finding “the law . . . requires no more than a
good faith attempt at conciliation” and determining that the EEOC had provided such a good
faith attempt after examining the various conciliation attempts); EEOC v. Zia Co., 582 F.2d 527,

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533 (10th Cir. 1978) (“a court should not examine the details of the offers and counteroffers
between the parties, nor impose its notions of what the agreement should provide”).
Other circuits, however, demand courts engage in a more strenuous review of the
conciliation process. EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003). For
instance, in order to satisfy the conciliation requirement in the Fifth and Eleventh Circuits
[t]he 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. . . . “[T]he fundamental question is the reasonableness
and responsiveness of the EEOC’s conduct under all the circumstances.”
Id. (quoting EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981)). Accordingly,
even though the circuits are split on the proper scope of a conciliation review, the courts that
have weighed in on the matter agree that conciliation is subject to at least some level of review.
The Seventh Circuit has yet to weigh in on this circuit split. See EEOC v. St. Alexius
Med. Ctr., No. 12-cv-7646, 2012 WL 6590625, at *1 (N.D. Ill. Dec. 18, 2012). However,
district courts within the Seventh Circuit, like all other courts to have considered the issue, have
concluded that the EEOC’s conciliation process is subject to at least some level of review. See,
e.g., EEOC v. Menard, Inc., 08-cv-0655-DRH, 2009 WL 1708628, at *1 (S.D. Ill. June 17, 2009)
(EEOC need only “make[] a sincere and reasonable effort to negotiate”); EEOC v. Jillian’s of
Indianapolis, IN, Inc., 279 F. Supp. 2d 974, 984-85 (S. D. Ind. 2003); EEOC v. Dial Corp., 156
F. Supp. 2d 926, 941-42 (N.D. Ill. 2001) (after considering the events of the conciliation process
the court held it was “persuaded that the EEOC did, indeed, attempt to conciliate” because
“[b]oth parties had the opportunity to put their respective proposals on the table before the EEOC
determined that conciliation would be futile.”); EEOC v. First Midwest Bank, N.A., 14 F. Supp.
2d 1028, 1031 (N.D. Ill. 1998) (noting that “[i]f a district court finds improper conciliation

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efforts were made, the appropriate remedy is not dismissal, but a stay of the proceedings so that
conciliation between the parties may take place” and going on to examine the conciliation
process). Specifically, this Court expressed its opinion that the EEOC’s conciliation process is
subject to review. EEOC v. Crownline Boats, Inc., 04-cv-4244-JPG, 2005 WL 1618809, at *2-4
(S.D. Ill. July 5, 2005) (“Even though conciliation is not a jurisdictional prerequisite, the
defendant may still attack the sufficiency of the EEOC’s conciliation as an affirmative defense to
the EEOC’s claim.”).
In Caterpillar, the Seventh Circuit held that the existence of probable cause is not a
justiciable issue in a suit brought by the EEOC. EEOC v. Caterpillar, 409 F.3d 831, 833 (7th
Cir. 2005). Specifically, the EEOC’s notice to Caterpillar stated it had “reasonable cause to
believe that Caterpillar discriminated against [the claimant] and a class of female employees.”
Id. at 831-32. The EEOC’s suit alleged that Caterpillar had engaged in plant-wide
discrimination. Caterpillar argued that the plant-wide allegation was unrelated to the original
charge and moved for summary judgment. Id. at 832. The court denied the motion but certified
the following question for interlocutory appeal:
In determining whether the claims in an EEOC complaint are within the scope of
the discrimination allegedly discovered during the EEOC’s investigation, must the
court accept the EEOC’s Administrative Determination concerning the alleged
discrimination discovered during its investigation, or instead, may the court itself
review the scope of the investigation?
Id. The Seventh Circuit answered that question in the negative, specifically stating as follows:
If courts may not limit a suit by the EEOC to claims made in the administrative
charge, they likewise have no business limiting the suit to claims that the court
finds to be supported by the evidence obtained in the Commission’s investigation.
The existence of probable cause to sue is generally and in this instance not
judicially reviewable.
Id. at 833.

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Here, the EEOC fails to argue that its conciliation efforts would satisfy either the
“deferential standard” or the “heightened scrutiny standard.” Rather, the EEOC argues that the
Caterpillar decision compels this Court to conclude that its conciliation process is not subject to
any level of judicial review because conciliation, like a probable cause determination, is a
prerequisite to filing suit.1 See 42 U.S.C. § 2000e-f(b). Considering the same argument from the
EEOC, a court in the Northern District of Illinois concluded that Caterpillar compels no such
conclusion.2 EEOC v. St. Alexius Med. Ctr., No. 12-cv-7646, 2012 WL 6590625, at *2 (N.D. Ill.
Dec. 18, 2012). The St. Alexius court reasoned that Caterpillar only found the probable cause
determination not subject to judicial review and did not address the conciliation process. Id.
That court further reasoned it
would not read Caterpillar as having implicitly disagreed with the consensus,
adopted by all circuits to have addressed the issue, that the EEOC’s presuit
conciliation efforts are subject to at least some level of judicial review; when the
Seventh Circuit departs from such a consensus, it does so explicitly. See Turley v.
Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010). Reading Caterpillar in the manner
urged by the EEOC would be particularly unwise given that the Seventh Circuit
has cited with approval Keco Industries and Zia, two of the decisions recognizing
a court’s authority to evaluate the EEOC’s conciliation efforts when those efforts
(or lack thereof) are challenged by a defendant in an EEOC-initiated employment
discrimination suit. See [EEOC v.] Elgin Teachers Ass’n, 27 F.3d [292,] 294
[(7th Cir. 1994)].
Id. at *2. The Court finds the St. Alexius reasoning persuasive and adopts its reasoning herein.
The Court also notes that at least one other circuit rejects the EEOC’s reasoning that
Caterpillar’s holding, that the pre-suit reasonable cause determination is non-justiciable, is

1

The Court also notes that the EEOC makes an argument that the Administrative Procedures Act (“APA”) is
relevant to the Court’s decision. The EEOC cites no authority that directly supports this proposition. Further, this is
an action brought directly by the EEOC, not a person aggrieved by an agency action. See 5 U.S.C. § 702 (“A person
suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entited to judicial review thereof.”).
2
While St. Alexius considered an American with Disabilities Act (“ADA”) case, as that Court noted, the ADA
incorporated the provisions of Title VII “regarding the procedures the EEOC must follow in handling administrative
charges and in filing suits against employers on behalf of claimants.” St. Alexius, 2012 WL 6590625, at *1 (citing
42 U.S.C. § 2177(a)).

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inconsistent with a holding that the conciliation process is justiciable. The Fourth Circuit, like
Caterpillar, has held that Title VII does not provide for review of the EEOC’s reasonable cause
determination. Caterpillar, 409 F.3d at 832 (citing Georator Corp. v. EEOC, 592 F.2d 765, 767
(4th Cir. 1979)). That same circuit also employs a deferential standard in reviewing the EEOC’s
conciliation process. See EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979)
(finding “the law . . . requires no more than a good faith attempt at conciliation” and determining
that the EEOC had provided such a good faith attempt after examining the attempts at
conciliation).
For these reasons, the Court concludes that Caterpillar does not preclude at least some
level of judicial review of the EEOC’s conciliation process. Thus, the Court denies the EEOC’s
motion for summary judgment. Of course, this ruling does not preclude the EEOC from filing a
motion for summary judgment arguing that it did conciliate in good faith.
Finally, the EEOC filed a motion to strike a section of Mach Mining’s response to the
EEOC’s motion for summary judgment that contained references to the conciliation process.
The EEOC argues Mach Mining’s reference to the conciliation process violates the portion of 42
U.S.C. § 2000e-5(b) that states “[n]othing said or done during and as a 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 persons concerned.”
However, because the Court has found that the EEOC’s conciliation process is subject to at least
some level of review and that review would involve at least a cursory review of the parties’
conciliation, the Court denies the EEOC’s motion.
The Court notes, however, that the inquiry into the conciliation process does not require
every detail of the conciliation process, as the Court need only determine whether the EEOC

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made “a sincere and reasonable effort to negotiate.” EEOC v. Menard, Inc., 08-cv-0655-DRH,
2009 WL 1708628, at *1 (S.D. Ill. June 17, 2009); see EEOC v. Zia Co., 582 F.2d 527, 533 (10th
Cir. 1978) (“a court should not examine the details of the offers and counteroffers between the
parties, nor impose its notions of what the agreement should provide”); see also EEOC v.
Hibbing Taconite Co., 266 F.R.D. 260, 273 (D. Minn. 2009) (“While the substance and details of
any settlement offers, or discussions, are not discoverable, the actions and efforts, that are
undertaken by the EEOC to conciliate the matter are discoverable information, and are subject to
the Court’s review.)
3. Conclusion
Thus, the Court finds that the EEOC is not entitled to judgment as a matter of law on
Mach Mining’s affirmative defense that the EEOC failed to conciliate in good faith and DENIES
the EEOC’s motion for summary judgment (Doc. 32). The Court further DENIES the EEOC’s
motion to strike Section F of Mach Mining’s response (Doc. 45).

IT IS SO ORDERED.
DATED: January 28, 2013
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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