U.S. Equal Employment Opportunity Commission v. MVM, Inc.
Filing
19
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 4/18/2018. (aos, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
Civil Action No. TDC-17-2881
v.
MVM,INC.,
Defendant.
MEMORANDUM OPINION
Plaintiff U.S. Equal Employment
against Defendant MVM, Inc. ("MVM")
Opportunity Commission
("EEOC") has filed suit
alleging that MVM subjected a class of female
employees to a hostile work environment based on sex and unlawful retaliation, in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.
(2012).
2000e-2(a)(1), 2000e-3(a)
Pending before the Court is MVM's Motion to Dismiss and the EEOC's Motion to
Strike portions of MVM's
Motion and its accompanying
affidavit.
Complaint and the briefs, the Court finds no hearing necessary.
(2016).
99
Having reviewed the
See D. Md. Local R. 105.6
For the reasons set forth below, MVM's Motion to Dismiss is DENIED, and the
EEOC's Motion to Strike is GRANTED.
BACKGROUND
The EEOC is a federal agency tasked with administering, interpreting, and enforcing
Title VII. MVM is a security services firm, incorporated in California, that employs security
guards in the State of Maryland.
In August 2014, the United States Social Security Administration
("SSA") awarded a
contract to MVM to provide security services for its campus in Woodlawn, Maryland.
MVM
inherited certain personnel from the SSA's previous contract, including Monique Wilson and
Alexander Gough. Gough was the Acting Site Manager and in that capacity supervised Wilson,
an armed security guard. According to the Complaint, Gough consistently subjected Wilson to
inappropriate, sexually explicit comments and unwanted physical touching, despite her repeated
requests that he stop.
Gough also regularly subjected other female employees to similar
comments and physical contact, including in the presence of SSA supervisors and managers.
On February 18,2016, Gough cornered Wilson on an elevator and kissed her without her
consent. Wilson complained to management and identified several witnesses who would be able
to corroborate certain facts leading up to the assault.
On February 29, 2016, MVM's General
Counsel, Christopher McHale, questioned Wilson about her complaint.
Although Wilson
informed him that Gough may have harassed other women, McHale did not interview any of the
witnesses she had identified. On March 1,2016, MVM terminated Wilson.
Wilson then filed a charge of discrimination with the EEOC in which she alleged that
MVM had violated Title VII. On July 20, 2017, the EEOC issued a Letter of Determination to
MVM in which it stated that it had found reasonable cause to believe that MVM had violated
Title VII as to Wilson and other female employees
and invited MVM to participate
in
conciliation with the EEOC. The EEOC then engaged in communications with MVM to provide
an opportunity for MVM to remedy the discriminatory practices described in the Letter of
Determination.
conciliation
Conciliation.
On September 13, 2017, after concluding that it could not secure an acceptable
agreement
from MVM, the EEOC issued to MVM a Notice of Failure of
On September 28, 2017, the EEOC filed the present case on behalf of Wilson and
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a class of aggrieved female employees, alleging that MVM violated Title VII by subjecting them
to sexual harassment and a sexually hostile work environment and by firing Wilson in retaliation
for reporting that harassment.
DISCUSSION
In its Motion to Dismiss, MVM argues that the Complaint must be dismissed because the
EEOC has not satisfied Title VII's conciliation requirement, a condition precedent to filing suit.
In its Motion to Strike, the EEOC requests that the Court strike portions
memorandum
in support of its Motion and an accompanying affidavit because they convey
information from conciliation discussions, in violation of 42 U.S.C.
I.
of MVM's
S 2000e-5(b).
Motion to Dismiss
Although MVM characterizes its Motion as a motion to dismiss for lack of subject
matter jurisdiction
under Federal Rule of Civil Procedure
12(b)(l),
its motion is properly
classified as a motion to dismiss for failure to state a claim under Rule 12(b)( 6).
In Mach
Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), the United States Supreme Court held that the
appropriate remedy for a failure to satisfy Title VII's conciliation requirement is to order the
EEOC to engage in conciliation and to stay the case, if necessary, to allow for such discussions.
Id at 1656. In so ruling, the Court did not describe the conciliation requirement as jurisdictional
and effectively concluded that a court could exercise jurisdiction
conciliation had been satisfactorily completed.
See id
over the case even before
Under these circumstances, and in the
absence of a clear statement in the statute that the conciliation requirement is jurisdictional, this
Court construes the Motion as seeking dismissal for failure to state a claim under Rule 12(b)(6).
See Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006); EEOC v. Agro Distribution, LLC, 555
F.3d 462,469 (5th Cir. 2009).
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To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough
facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is
plausible when the facts pleaded allow "the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements
do not suffice.
Id. The Court must examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the factual allegations in the light most
favorable to the plaintiff.
Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
MVM argues that the EEOC's complaint must be dismissed because the EEOC has not
satisfied the requirement in Title VII that the EEOC must "endeavor to eliminate any ... alleged
unlawful employment practice by informal methods of conference, conciliation, and persuasion"
before filing suit in federal court. 42 U.S.C. ~ 2000e-5(b).
provided guidance on the parameters of this requirement.
The Supreme Court has recently
In Mach Mining, the Court held that
the EEOC's compliance with the conciliation requirement is subject to judicial review, but
described such an inquiry as a "relatively barebones" review to ensure that the EEOC has
"cornrnunicate[ d] in some way (through conference, conciliation, and persuasion)
about an
alleged unlawful employment
voluntary
compliance."
practice in an endeavor to achieve an employer's
Mach Mining, 135 S. Ct. at 1656 (internal citations omitted).
Specifically, such a review is conducted to ensure that the EEOC has satisfied two
requirements.
First, the EEOC must have "inform[ ed] the employer about the specific allegation,
as [it] 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).
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Second, 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.
Courts are to review only whether the EEOC has satisfied these two requirements "and
nothing else." Id. Notably, 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. Because the EEOC has "expansive discretion ...
to decide how to conduct
conciliation efforts and when to end them," judicial review does not extend to considering the
EEOC's conduct during the conciliation process or whether it negotiated in good faith. See id. at
1653-54.
Matters such as the "pace and duration of conciliation efforts, the plasticity and
firmness of its negotiating positions, the content of its demands for relief," and "strategic
decisions such 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," all lie beyond the scope of judicial review. Id.
at 1654.
Courts need not, and in fact are not permitted to, review the specific communications or
conduct of the conciliation discussions. See id. Title VII specifically provides: "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 persons concerned."
42 U.S.C.
S 2000e-5(b).
"Such limited review respects the
expansive discretion that Title VII gives to the EEOC over the conciliation process, while still
ensuring that the Commission follows the law." Mach Mining, 135 S. Ct. at 1653.
Here, the EEOC has established that it complied with both prongs of Title VII's
conciliation requirement.
First, on July 20, 2017, the EEOC issued to MVM a Letter of
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Determination in which it notified MVM that it had uncovered evidence that Wilson had been
subjected to "unwanted sexual comments, stares, and touching" while working at MVM, that she
was terminated for complaining about the harassment, and that "a class of female employees
were also subjected to unwanted sexual comments and touching," sometimes in the presence of
or with the knowledge of management.
Letter of Determination at 1, Mem. Opp. Mot. Dismiss
Ex. B, ECF No. 9_3.1 The EEOC informed MVM that it had found reasonable cause to believe
that Wilson "was sexually harassed and subjected to a sexually hostile work environment" and
"was discharged in retaliation for engaging in protected activity."
Id. at 2. The Letter further
concluded that "since at least March 2014, a class of females have been sexually harassed and
subjected to a hostile work environment, in violation of Title VII." Id. The Letter then proposed
a conciliation process, noted that it was an "opportunity to voluntarily remedy the unlawful
employment practices," and invited MVM to respond to a specific conciliation proposal.
Id.
According to the EEOC, it "engaged in communications with Defendant to provide Defendant
the opportunity to remedy the discriminatory practices described in the Letter of Determination,"
but "the Commission was unable to secure from Defendant a conciliation agreement acceptable
to the Commission."
Compl. ~~ 7-9, ECF No.1.
Thus, on September 13, 2017, the EEOC
issued a "Notice of Failure of Conciliation" to MVM.
Although
MVM
argues
that the EEOC
failed to meet Title VII's
conciliation
requirement, it has submitted a declaration by McHale which effectively confirms that the EEOC
met that requirement.
In his declaration, McHale acknowledged that MVM had received notice
of the allegations when he stated that "on or about July 20, 2017, the EEOC issued a
Because the Letter of Determination is of undisputed authenticity and is integral to the
Complaint, it may be considered in resolving the Motion to Dismiss. See Am. Chiropractic
Ass 'n v. Trigon Healthcare, Inc., 367 F.3d 212,234 (4th Cir. 2004).
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Determination
with respect to the Charge, finding that Ms. Wilson was sexually harassed,
subjected to a sexually hostile work environment, and discharged in retaliation for engaging in
protected activity" and concluding "that since at least March 2014, a 'class of females' has been
sexually harassed and subjected to a hostile work environment."
McHale Decl. ~ 4, Mot.
Dismiss Ex. 1, ECF No. 5-2. By further stating that "the EEOC presented a conciliation proposal
for the full and final resolution of the matter," and that MVM "negotiated in good faith with the
EEOC to resolve this matter short of litigation," McHale confirmed that the EEOC attempted to
engage with MVM in discussions that gave MVM an opportunity to remedy the allegedly
discriminatory practice. Id. ~ 6.
Nevertheless, MVM claims that the EEOC failed to satisfy the conciliation requirement
for two reasons. First, MVM asserts that the Letter of Determination was "entirely devoid of any
specific details describing the nature of the act(s) related to the purported sexual harassment
and/or sexually hostile work environment" such as "specific date(s) of incident(s), where these
alleged act(s) occurred,
MVM's
employees
involved,
the allegedly
aggrieved
'class
of
female(s),' the number of females in this purportedly aggrieved class of females, and any facts
describing the purported sexual harassment and/or sexually hostile work environment."
Dismiss at 7, ECF No. 5-1.
Mot.
Second, MVM argues that EEOC did not comply with the
conciliation requirement when it failed to respond to an offer by MVM and adopted "a 'take-itor-leave-it' approach." Id. at 9.
Under Mach Mining, however, these objections do not provide a basis to find a failure to
comply with the conciliation requirement. The Letter of Determination sufficiently described the
conduct and the employees who suffered as a result, including specifically identifying the
primary charging party, Wilson, such that MVM had notice of the potential claims against it.
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MVM has offered no authority requiring that a Letter of Determination
contain the level of
factual detail it now demands. See Ariz. ex rei. Horne v. Geo Group, Inc., 816 F.3d 1189, 1196,
1198-99 (9th Cir. 2016) (holding that the EEOC satisfied the conciliation requirement even
though it did not name each member of the class of aggrieved employees); EEOC v. Bass Pro
Outdoor World, L.L.C, 826 F.3d 791,804-05 (5th Cir. 2016) (same); see also Mach Mining, 135
S. Ct. at 1654, 1656 (noting that whether to "lay all its cards on the table" in the conciliation
process is left to the EEOC's discretion).
As for the alleged "take-it-or-Ieave-it"
approach, Mach Mining directs that the Court's
review of the conciliation process not extend to matters that fall within the EEOC's broad
discretion, including "strategic decisions such as whether to make a bare-minimum offer" and
whether "to respond to each of an employer's counter-offers."
Mach Mining, 135 S. Ct. at 1654.
Indeed, based on Mach Mining, courts have declined to take the type of "deep dive" into the
conciliation process that MVM asks this Court to take here. See Bass Pro Outdoor World, 826
F.3d at 804-05 (rejecting a review of the sufficiency of conciliation efforts as inconsistent with
Mach Mining); Ariz. ex rei. Horne, 816 F.3d at 1198-99 (holding that the EEOC "clearly
satisfied" Title VII's conciliation requirement where it sent a reasonable cause letter which stated
that a "class" of female employees had been subjected to discrimination, participated in a formal
mediation session with the employer, and proposed a settlement offer).
MVM's reliance on EEOC v. Agro Distribution, LLC, 555 F.3d 462 (5th Cir. 2009), and
EEOC v. OhioHealth Corp., 115 F. Supp. 3d 895 (S.D. Ohio 2015), is misplaced. Agro, which
pre-dates Mach Mining, imposed a requirement
of good-faith conciliation
by the EEOC,
including specific required steps, which was plainly rejected and effectively overruled by Mach
Mining.
Agro, 555 F.3d at 468; Mach Mining, 135 S. Ct. at 1654 (rejecting a good-faith
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requirement).
inappropriate
Citation of such a case for purposes of establishing the applicable standard is
and misleading.
Likewise, OhioHealth,
although post-dating
Mach Mining,
involved a detailed analysis of the conciliation process to assess whether there was a "good faith
conciliation effort," OhioHealth, 115 F. Supp. 3d at 898, that is inconsistent with the guidance of
Mach Mining that the court may give consideration "only to whether the EEOC attempted to
confer about a charge, and not to what happened . ..
during those discussions," Mach Mining,
135 S. Ct. at 1656. Such an analysis was most likely undertaken because the EEOC itself opened
the door to such analysis by submitting a summary of the conciliation efforts. OhioHealth, 115
F. Supp. 3d at 898. This Court finds that, under Mach Mining, such an inquiry is inappropriate
under the present facts.
Congress has provided "the EEOC with wide latitude over the conciliation process."
Mach Mining, 135 S. Ct. at 1652. Here, the EEOC has acted well within that wide latitude.
Because the EEOC complied with Title VII's conciliation requirement,
MVM's
Motion to
Dismiss will be denied.
II.
Motion to Strike
The EEOC moves to strike portions of MVM's memorandum of law in support of its
Motion to Dismiss
and its accompanying
declaration
on the ground that they disclose
information about the conciliation process between the EEOC and MVM, in violation of 42
U.S.C.
S 2000e-5(b).
Federal Rule of Civil Procedure 12(f), the only procedural rule addressing
motions to strike, states that a court may, on its own or on a party's motion, "strike from a
pleading an insufficient
matter."
defense or any redundant,
immaterial,
impertinent,
or scandalous
Fed. R. Civ. P. 12(f). Although Rule 12(f) does not address motions to strike matter
containing in court filings other than pleadings, "the Court does have inherent authority to strike
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other documents."
Anusie-Howard v. Todd, 920 F. Supp. 2d 623, 627 (D. Md. 2013), aff'd 615
F. App'x 119 (4th Cir. 2015). "Inherent powers must be exercised with restraint and discretion."
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
Specifically, a court may exercise the inherent power to strike where "Title VII prohibits
the disclosure of the matters to be struck."
us. Equal
Employment Opportunity Commission v.
Dimensions Healthcare System, 188 F. Supp. 3d 517,522
n.5 (D. Md. 2016).
As discussed
above, Title VII directs that "[n]othing said or done during and as a part of . . . informal
endeavors" to conciliate may be "used as evidence in a subsequent proceeding without the
written consent of the persons concerned."
42 U.S.C. 9 2000(e)-5(b).
Here, MVM has offered
as evidence facts about the exchanges made during the conciliation process as stated in the
McHale Declaration and has referred to those facts in its memorandum
of law, including
information about requests made by MVM, the number of proposals to which it agreed, and the
number to which it made counteroffers.
Title VII expressly prohibits the disclosure of such
evidence of what was "said or done during and as a part of' conciliation.
Id. Indeed, in Mach
Mining, the Supreme Court criticized the district court for failing to strike from the record
"descriptions of the conciliation process."
See Mach Mining, 135 S. Ct. at 1655. The Court
stated that, by failing to strike such evidence, the district court "failed to give effect to [Title
VII's] non-disclosure provision" and thus "undermined the conciliation process itself, because
confidentiality
promotes
candor in discussions
and thereby
enhances
the prospects
for
agreement." Id. The Court will therefore grant the Motion to Strike and will also bar any future
reference in this case to what was "said or done during conciliation."
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42 U.S.C. 92000e-5(b).
CONCLUSION
For the foregoing reasons, MVM's Motion to Dismiss is DENIED, and the EEOC's
Motion to Strike is GRANTED. A separate Order shall issue.
Date: April 18,2018
THEODORE D. C
United States Distri
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