Equal Employment Opportunity Commission v. Amsted Industries Inc et al

Filing 51

MEMORANDUM AND ORDER, granting EEOC's motion for summary judgment on the issue of whether the EEOC has adequately attempted to conciliate this dispute, and finds in favor of the EEOC on Defense 4 of Amsted's Amended Answer (Doc. 33 ); gr anting EEOC's motion to strike (Doc. 40 ). The Court DIRECTS the Clerk of Court to place Amsted's summary judgment response and its attachments (Doc. 39 ) UNDER SEAL; and ORDERS Amsted to file on or before February 4, 2016, a redacted response and supporting affidavits removing all references to what was said or done by or between the parties between the February 28, 2013, and February 12, 2014, letters. Signed by Judge J. Phil Gilbert on 1/20/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
Case No. 14-cv-1292-JPG-SCW
v.
AMSTED RAIL CO., INC.,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the plaintiff Equal Employment Opportunity
Commission’s (“EEOC” or “Commission”) motion for partial summary judgment on the issue of
whether the EEOC has attempted to conciliate this dispute with defendant Amsted Rail Co., Inc.
(“Amsted”) as required by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12117
(incorporating the enforcement procedures of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-5(b)) (Doc. 33). Amsted has responded to the motion (Doc. 39), and the EEOC has
replied to that response (Doc. 41). The EEOC also asks the Court to strike certain portions of
Amsted’s response on the grounds that those portions violate the confidentiality provisions set
forth in 42 U.S.C. § 2000e-5(b) (Doc. 40). Amsted has, in turn, responded to the EEOC’s motion
to strike (Doc. 42).
I.

Summary Judgment Standard
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. If the moving party bears the burden of
persuasion on an issue at trial, as the EEOC will for the issue in question in this case, it must
present evidence that conclusively establishes it is entitled to a judgment as a matter of law. The
movant must establish that no reasonable jury could find for the non-moving party.
II.

Facts
As a preliminary matter, the Court has disregarded or considered for a limited purpose

some of the evidence submitted by the parties. That evidence and the Court’s reasons for
disregarding or limiting it are explained as necessary elsewhere in this order. Viewing the rest of
the evidence and drawing all reasonable inference in favor of Amsted, the evidence establishes the
following relevant facts.
Amsted operates a facility in Granite City, Illinois, where it employs individuals as
“chippers.” A chipper’s duties include using a hammer or grinder to remove metal protrusions
from steel castings. Amsted requires those applying to be chippers to submit to a medical
evaluation, which includes a medical history questionnaire and a nerve conduction test. In 2011,
Montrell Ingram, who had a history of carpal tunnel syndrome, applied to be a chipper and was
offered the position contingent upon his passing the medical evaluation. After completing the
evaluation, Amsted declined to hire Ingram on the grounds that he was not medically qualified.
On March 2, 2011, Ingram filed a charge of discrimination with the EEOC. In that charge,
he complains, among other things, that Amsted discriminated against him on the basis of an actual
disability, a perceived disability or a record of disability when it failed to hire him as a chipper.

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Specifically, his charge stated:
I.
Approximately 5 years ago, I was diagnosed with a disability. I applied for
a Chipper position with Amsted Rail Co., Inc. on or about 2/8/2011. I interviewed
for this position on 2/16/2011. On 2/16/2011, I also completed a medical history
form that asked for family medical information; drug screen; hearing test; vision
test and a nerve conduction test. On 2/17/2011, I completed a physical exam with
the company physician. All of these actions were prior to being offered a position
with the employer.
II.
On 2/17/2011, the company physician told me that Amsted Rail Co., Inc.
does not hire persons with my disability or those having had a record of this
disability for Chipper positions and that my application would be kept on file for 6
months.
III.
For the above reasons, I believe that I have been discriminated against
based on my disability, a perceived disability and/or my record of disability and
medical history/genetic information, in violation of the Americans with Disabilities
Act of 2009 and the Genetic Information Nondiscrimination Act of 2008.
Ingram’s charge did not identify the nature of his disability.
Two weeks later, on March 16, 2011, the EEOC sent notices of Ingram’s charge to two
Amsted officers and an officer of Amsted Industries, Inc. and enclosed a copy of Ingram’s charge.
The notice did not identify the nature of Ingram’s disability.
During the EEOC’s investigation of Ingram’s charge, the EEOC communicated with
Amsted but was not responsive to Amsted’s requests for information about the charge or for an
explanation of the basis of the charge.1 On June 10, 2011, the EEOC sent Amsted a letter stating
that it was expanding its investigation to a class of chipper applicants “who were not hired because
they either had a record of carpal tunnel syndrome or failed a nerve conduction test.”
On February 28, 2013, the EEOC issued a “Letter of Determination” to Ingram and
Amsted describes its efforts after it received notice of Ingram’s charge to cooperate with the
EEOC’s investigation and to mediate Ingram’s dispute (Def.’s Summ. J. Resp. § III, ¶¶ 1-16). It
also chronicles the EEOC’s lack of responsiveness to its inquiries into the basis for the charge.
While this information serves as a background to the inquiry about the EEOC’s later efforts at
formal conciliation, it is not directly relevant to those efforts and will not be considered by the
Court in that respect.
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Amsted regarding Ingram’s charge. Specifically, the Letter of Determination stated, in pertinent
part:
Under the authority vested in me by the Commission, I issue the following
determination as to the merits of the subject charge filed under the Americans With
Disabilities Act as amended (ADA). . . .
All requirements for coverage have been met. Charging Party [Ingram] alleges
that the Respondent [Amsted] . . . denied him hire into Chipper position because
of his disability, perceived disability and/or record of disability. . . .
***
Respondent denies the allegation that it discriminated against Charging Party.
The Respondent contends that Charging Party was not hired due to Respondent’s
contracted physician’s, determination that Charging Party was not medically
qualified to perform the Chipper position due to Charging Party’s previous surgery
on both hands for Carpal Tunnel Syndrome. The Respondent further contends that
Charging Party was at substantial risk for further injury to himself if he performed
the essential functions of the Chipper position.
Evaluation of the evidence reveals reasonable cause to believe that Charging
Party’s allegations regarding hiring are true and that Respondent discriminated
against Charging Party on the basis of disability in violation of the Title I of the
Americans with Disabilities Act, as amended (ADA) 42 U.S.C. 12112(b); 29
C.F.R. Sec. 1630.4.
In addition, evaluation of the evidence obtained shows that Respondent denied hire
to class of Chipper applicants based on the outcome of each applicant’s nerve
conduction test; thus, denying each a Chipper position because of his disability,
perceived disability and/or record of disability.
Based upon the foregoing, there is reasonable cause to believe that Respondent
discriminated against a class of Chipper position applicants on the basis of
disability in violation of the Title I of the Americans with Disabilities Act, as
amended (ADA) 42 U.S.C. 12112(b); 29 C.F.R. Sec. 1630.4. . . .
Upon finding that there is reason to believe that violations have occurred, the
Commission attempts to eliminate the alleged unlawful practices by informal
methods of conciliation. Therefore, the Commission now invites the parties to
join with it in reaching just resolution of this matter. The confidentiality
provisions of Sections 706 and 709 of Title VII and Commission Regulations apply
to information obtained during conciliation.
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***
. . . . A Commission representative will contact each party in the near future to
begin conciliation.
Also on February 28, 2013, the EEOC issued a letter to Amsted’s counsel inviting Amsted
to respond to the invitation to conciliate the dispute. Communications between the parties
ensued, the contents of which are the subject of the EEOC’s motion to strike (Doc. 40).
Nearly a year later, on February 12, 2014, the EEOC notified Amsted that it had
determined conciliation efforts had been unsuccessful and that it would not pursue further efforts.
The EEOC then filed this lawsuit in November 2014.
In its First Amended Complaint, the EEOC alleges Amsted violated the ADA when it
denied Ingram and a class of job applicants employment because it regarded them as disabled or
because they had a record of disability. The disability in question is carpal tunnel syndrome.
Amsted raised a defense that the EEOC failed to conduct the conduct the pre-litigation conciliation
efforts required by the ADA.
The EEOC now asks the Court for summary judgment on Amsted’s defense of failure to
conciliate. It points to an affidavit from an EEOC official stating essentially that Amsted was
informed of Ingram’s complaint, was invited to conciliate the matter, and had communications
with the EEOC, but that no conciliation agreement acceptable to the EEOC was reached. Amsted
contends that although the EEOC went through the motions of attempting to conciliate, it did not,
in fact, properly and meaningfully endeavor to resolve the conflict.
III.

Analysis
This case is governed by the Supreme Court’s recent decision in Mach Mining, LLC v.

EEOC, 135 S. Ct. 1645 (2015). Applying the law as set forth in Mach Mining, the Court
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concludes that the EEOC’s efforts to conciliate were adequate to satisfy statutory requirements.
A.

Judicial Review of Conciliation Efforts

As a preliminary matter, neither party disputes that the ADA requires the EEOC to attempt
to conciliate a dispute stemming from a complainant’s discrimination charge before filing suit.
See Mach Mining, 135 S. Ct. at 1651. In 42 U.S.C. § 12117(a), the ADA incorporates the
enforcement procedure set forth in Title VII, which states, in pertinent part, that if the EEOC
determines there is reasonable cause to believe an individual’s charge of discrimination is true, the
EEOC “shall endeavor to eliminate any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). If the EEOC is
“unable to secure from the respondent a conciliation agreement acceptable to the Commission, the
Commission may bring a civil action against any respondent not a government, governmental
agency, or political subdivision named in the charge.” 42 U.S.C. § 2000e-5(f)(1). Thus, the
EEOC’s efforts to conciliate are a precondition to its filing a lawsuit. To ensure candor in the
conciliation efforts, the events in the conciliation process are secret: “Nothing 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.” 42 U.S.C. § 2000e-5(b); accord Mach Mining, 135 S. Ct. at 1655.
The Supreme Court recently addressed in Mach Mining whether and to what extent a
federal court can review the EEOC’s conciliation efforts to determine whether the conciliation
requirement has been satisfied. In Mach Mining, a woman filed a charge complaining that Mach
Mining, refused to hire her as a coal miner because of her sex. Mach Mining, 135 S. Ct. at 1650.
The EEOC found reasonable cause to believe her charge was true, so sent Mach Mining a “letter of

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determination” inviting Mach Mining to resolve the matter informally and promising an EEOC
representative would contact the company to begin the process. Id. A year later, the EEOC sent
Mach Mining another letter stating that conciliation efforts had failed, and shortly thereafter the
EEOC brought suit under Title VII. Id. Mach Mining complained that the EEOC’s conciliation
efforts in the year between the “letter of determination” and the letting finding conciliation
unsuccessful were not in good faith and therefore did not satisfy the agency’s duty to conciliate
before filing suit. Id. The EEOC, on the other side, argued its conciliation efforts are not subject
to judicial review. Id.
The Supreme Court held that the EEOC’s conciliation efforts are subject to judicial review
but that that review is narrow. Id. at 1649. It put forth a two-part test to determine whether the
EEOC complied with the statutory requirement of 42 U.S.C. § 2000e-5(b):
[T]he EEOC, to meet the statutory condition, must tell the employer about the
claim—essentially, what practice has harmed which person or class—and must
provide the employer with an opportunity to discuss the matter in an effort to
achieve voluntary compliance.
Mach Mining, 135 S. Ct. at 1652. To satisfy the first part of the test, “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.” Id. at 1655-56
(internal citation omitted).
To satisfy the second part of the test, “the EEOC must try to engage the employer in 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 “need only ‘endeavor’ to
conciliate a claim, without having to devote a set amount of time or resources to that project.” Id.
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at 1654. 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. Id. The
EEOC also has full discretion to determine when such informal means are unsuccessful and when
to proceed to litigation. Id.
Judicial review is limited to the determination of “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. “Bookend” letters from the EEOC inviting conciliation and then
finding conciliation was unsuccessful, without evidence that between the letters the EEOC
actually attempted to engage in discussions to remedy the discriminatory employment practice, are
not enough. Id. at 1653. However, “[a] sworn affidavit from the EEOC stating that it has
performed the obligations noted above but that its efforts have failed will usually suffice to show
that it has met the conciliation requirement.” Id. at 1656. The employer, however, may counter
such an affidavit with evidence that the EEOC “did not provide the requisite information about the
charge or attempt to engage in a discussion about conciliating the claim,” at which point the Court
must conduct an evidentiary hearing to determine whether to stay the action and order the EEOC to
conduct is conciliation obligations. Id.
B.

Application

Here, the EEOC points to its February 28, 2013, and February 12, 2014, bookend letters
supplemented by an affidavit from EEOC St. Louis office Deputy District Director L. Jack
Vasquez authenticating the letters and stating that:
Between February 28, 2013, and February 12, 2014, the Commission engaged in
communications with Amsted to provide Amsted the opportunity to remedy the
discriminatory practices described in the Determination, including sending
Defendant a conciliation proposal. The Commission was unsuccessful in its
efforts.
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Vasquez Aff. ¶ 11. It argues this evidence conclusively shows under the Mach Mining standard
that it satisfied its obligation to conciliate the claims in this case.
In response, Amsted describes the content of its communications2 with the EEOC from its
receipt of the Letter of Determination to the February 12, 2014, letter stating that conciliation had
failed (Def.’s Summ. J. Resp. § III, ¶¶ 18-28). As the content of these communications cannot be
“used as evidence in a subsequent proceeding without the written consent of the persons
concerned,” 42 U.S.C. § 2000e-5(b), and there is no evidence the EEOC, Ingram or any other
potential class member has consented to such use, the Court disregards this evidence other than to
confirm that communication between the EEOC and Amsted occurred. In fact, Mach Mining
requires such facts be stricken, Mach Mining, 135 S. Ct. at 1655, and the Court accordingly will
grant the EEOC’s motion to strike (Doc. 40).3
As for the substance of Amsted’s response, it argues the EEOC has not satisfied the Mach
Mining two-part test. It argues the EEOC has failed to satisfy the first requirement – informing
the employer about the specific allegations against it – because the February 28, 2013, Letter of
Determination contains only conclusory statements and does not outline or summarize the
evidence on which the EEOC relied in making its determination and does not assist Amsted in
Amsted states that it has not revealed the substantive details of the communications but has only
described the relative efforts to conciliate. This is a distinction without a difference. The ADA
prevents the use of anything “said or done” during the conciliation process. 42 U.S.C.
§ 2000e-5(b). Whether an employer reaches out to the EEOC in a letter or phone call constitutes
something “done” as much as the content of that outreach effort constitutes something “said.”
Neither can be considered by the Court in reviewing the EEOC’s conciliation efforts.
Additionally, Amsted has failed it its quest to remove “content” from its description of “efforts.”
For example, it states it “continued to reiterate the multiple requests for information it made during
the investigation phase.” Def.’s Summ. J. Resp. 13. How does this statement not reveal that
Amsted asked for more information?
2

The Court need not consider the issue of prejudice because use of the evidence is strictly
prohibited in these circumstances by statute regardless of prejudice. See 42 U.S.C. § 2000e-5(b).
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understanding why the EEOC believes its employee screening process violates the ADA. As for
the second prong, Amsted argues that the EEOC failed to engage it in a “meaningful” discussion
about the allegedly discriminatory practices. Specifically, Amsted criticizes the content of the
EEOC’s post-reasonable cause finding communications – which, as noted above, the Court will
not consider in deciding this motion – as not explaining the EEOC’s reasons for believing
Amsted’s practices unlawful and as not aiming to achieve voluntary compliance with the ADA.
1.

Notification

The EEOC appropriately notified Amsted of the allegations against it and who it believed
suffered as a result of Amsted’s alleged wrongful conduct. As the Mach Mining court noted, this
requirement is usually satisfied by a letter of determination finding reasonable cause to believe a
statutory violation has occurred. The Court is given pause in this case, however, because the
relevant documents in this case are notably devoid of specifics. For example, Ingram’s charge
does not name the relevant disability. Nor is the Letter of Determination clear. It simply states
Amsted’s position that it failed to hire Ingram because he had had previous surgeries for carpal
tunnel syndrome and would be at risk for further injuries, and the conclusion that the EEOC found
reasonable cause to believe Amsted discriminated against Ingram on the basis of disability.
There is no indication the disability that the EEOC was referencing was related to carpal tunnel
syndrome.
However, in light of other statements from the EEOC to Amsted, the Court believes
adequate notification was given. For example, the EEOC’s June 10, 2011, letter sent to Amsted
during its pre-reasonable cause finding investigation, made clear that the investigation concerned
people who were not hired because of a record of carpal tunnel syndrome or because they failed a

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nerve conduction test. Additionally, in the Letter of Determination, the EEOC expressly stated
that it believed Amsted had discriminated against a class of chipper applicants based on the
outcome of a nerve conduction test and that this constituted discrimination on the basis of
disability, perceived disability and/or record of disability. Thus, despite the imprecision and
ambiguity of Ingram’s charge and the Letter of Discrimination as it related to Ingram, the
information received by Amsted, when viewed as a whole, was sufficient inform it of the specific
allegations of discrimination against Ingram and a class of applicants on the basis of carpal tunnel
syndrome, perceived carpal tunnel syndrome (based on the outcome of nerve conduction tests) or a
record of carpal tunnel syndrome.
2.

Conciliation

The EEOC appropriately tried to engage Amsted in some form of discussion so as to give it
an opportunity to remedy the allegedly discrimination. The EEOC’s affidavit is evidence that it
engaged in communication with Amsted between the “bookend” letters but was unable to reach a
satisfactory conciliation agreement. Amsted concedes that communications were made, but asks
the Court to look at the content of those communications to show that the EEOC’s effort to
conciliate this case was a sham.
In support of this argument, with one exception, Amsted cites caselaw predating Mach
Mining. Those cases are not persuasive to the Court in light of Mach Mining’s holding. The one
case Amsted cites that was decided after Mach Mining, EEOC v. OhioHealth Corp., No.
2:13-CV-780, 2015 WL 3952339 (S.D. Ohio June 29, 2015), is not persuasive to the Court either.
There, the court impermissibly considered positions taken during the conciliation process (that is,
what was “said or done” in the process), specifically, whether a “final” offer was made and the

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EEOC’s failure to provide supporting calculations for a damage demand. See OhioHealth, 2015
WL 3952339 at *3-*4. Additionally, the OhioHealth court entertained the possibility that the
EEOC “opened the door” to consideration of such facts, an exception to nondisclosure that is not
recognized by the statute. Id.
Furthermore, the 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 of a “negotiation checklist” that would require the EEOC to lay out the
factual and legal bases for its positions and provide calculations underlying its monetary demands.
See Mach Mining, 135 S. Ct. at 1653-54 (setting forth the employer’s proposed checklist).
Instead, the Mach Mining court observed that the EEOC’s attempts to conciliate
need not involve any specific steps or measures; rather, the Commission may use in
each case whatever “informal” means of “conference, conciliation, and persuasion”
it deems appropriate. And the EEOC alone decides whether in the end to make an
agreement or resort to litigation: The Commission may sue whenever “unable to
secure” terms “acceptable to the Commission.” § 2000e–5(f)(1) (emphasis
added). . . . Congress left to the EEOC such strategic decisions as whether to
make a bare-minimum offer, to lay all its cards on the table, or to respond to each of
an employer’s counter-offers, however far afield. So too Congress granted the
EEOC discretion over the pace and duration of conciliation efforts, the plasticity or
firmness of its negotiating positions, and the content of its demands for relief. For
a court to assess any of those choices . . . is not to enforce the law Congress wrote,
but to impose extra procedural requirements.
Mach Mining, 135 S. Ct. at 1654-55. The OhioHealth court’s rule would remove the EEOC’s
option of proposing a firm, “bare-minimum offer” that is the only result it would accept, and would
instead require it to “lay all its cards on the table.” As Mach Mining noted, the statute leaves such
strategic choices to the agency.
While it is sympathetic with Amsted’s desire to more fully understand the basis for the
EEOC’s position during conciliation, and it applauds Amsted’s willingness to engage in a
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back-and-forth discussion, the Court cannot require such a discussion take place. Mach Mining
holds that it cannot impose additional procedural requirements on the EEOC beyond engaging in
some form of discussion, even if it is simply the extension of a take-it-or-leave-it offer. There is
no dispute of fact that EEOC has done that, so its obligation to conciliate is satisfied. Further
discovery on this issue would not be productive in light of the fact that evidence discovered could
not be used as evidence in light of 42 U.S.C. § 2000e-5(b).
IV.

Conclusion
For the foregoing reasons, the Court:


GRANTS the EEOC’s motion for summary judgment on the issue of whether the EEOC
has adequately attempted to conciliate this dispute, and finds in favor of the EEOC on
Defense 4 of Amsted’s Amended Answer (Doc. 33);



GRANTS the EEOC’s motion to strike (Doc. 40);



DIRECTS the Clerk of Court to place Amsted’s summary judgment response and its
attachments (Doc. 39) UNDER SEAL;



ORDERS Amsted to file on or before February 4, 2016, a redacted response and
supporting affidavits removing all references to what was said or done by or between the
parties between the February 28, 2013, and February 12, 2014, letters. This will serve to
maintain the secrecy of the conciliation efforts without depriving the public of access to
court records.

IT IS SO ORDERED.
DATED: January 20, 2016
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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