United States District Court, D. Columbia.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff: Maria
Luisa Morocco, LEAD ATTORNEY, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington Field Office, Washington, DC; Philip
Matthew Kovnat, LEAD ATTORNEY, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Philadelphia, PA.
BLINDED VETERANS ASSOCIATION, Defendant: Melissa E.
Hoppmeyer, Tina M. Maiolo, LEAD ATTORNEYS, CARR MALONEY PC,
OPINION AND ORDER
D. MOSS, United States District Judge.
December 2014, Plaintiff Equal Employment Opportunity
Commission (" the EEOC" ) filed this suit against
Defendant Blinded Veterans Association (" BVA" ),
alleging violations of the Age Discrimination in Employment
Act, 29 U.S.C. § § 621 et seq. ("
ADEA" ). The EEOC alleges that BVA discriminated against
two long-time employees, Suzanne Matthews and Lazaro
Martinez, on the basis of age. See Dkt. 1 at 1.
Pending before the Court is BVA's motion to dismiss for
lack of jurisdiction pursuant to Rule 12(b)(1). See
Dkt. 3. BVA argues that the EEOC did not " (1) make a
good faith attempt to conciliate, [or] (2) make an
independent investigation of the charges of discrimination at
issue--both of which are prerequisites to filing suit."
See Dkt. 3 at 3.
the parties completed their briefing on BVA's motion, the
Supreme Court issued its decision in Mach Mining, LLC, v.
EEOC, 575 U.S. , 135 S.Ct. 1645, 191 L.Ed.2d 607 (2015),
holding that " a court may review whether the EEOC
satisfied its statutory obligation to attempt conciliation
before filing suit" under Title VII, 135 S.Ct. at 1649.
The Supreme Court concluded, however, " that the scope
of that review is narrow, [and] thus recogniz[ed] the
EEOC's extensive discretion to determine the kind and
amount of communication with an employer appropriate in any
given case." Id. The parties have now filed
supplemental briefs addressing Mach Mining and its
application to this ADEA case. See Dkts. 10, 11. For
the reasons set forth below, the Court
DENIES BVA's motion.
2013, Suzanne Matthews, Lazaro Martinez, and Earl Ivie
(" the charging parties" ), who are all former
employees of BVA, filed charges of age discrimination with
the EEOC. The EEOC notified BVA of the charges, asked for a
statement of BVA's position, and asked BVA to submit
additional information relating to the charges. See
Dkt. 3 at 3; Dkt. 5 at 3. In May 2014, the EEOC consolidated
the charges into a single investigation. See Dkt. 5,
EEOC determined that there was reasonable cause to believe
that BVA discriminated against each of the charging parties
and invited BVA to conciliate. See Dkt. 3, Exs. A,
B, C. The EEOC proposed three conciliation agreements, each
of which included non-monetary injunctive relief and a
monetary award for the charging party. See Dkt. 3,
Exs. D, E, F. Through counsel, BVA agreed to the proposed
non-monetary remedies, but counter-offered with respect to
the monetary relief. See Dkt. 3, Exs. G, H, I. The
EEOC acknowledged the parties' " agreement on the
Non-Monetary Relief set forth in the proposed Conciliation
Agreements" and also counter-offered on the monetary
relief. See Dkt. 3, Ex. J. BVA then proposed to
increase the monetary awards, s ee Dkt. 3, Ex. K,
but also added " another condition" relating to Mr.
Ivie: We will increase our offer from $25,000 to $32,000
total (inclusive of all damages including without being
limited to back pay, liquidated damages and attorneys fees
and costs) -- PLEASE NOTE THAT ANOTHER CONDITION IS THAT MR.
IVIE VOLUNTARILY DISMISS WITH PREJUDICE THE LAWSUIT HE FILED
IN CALIFORNIA BASED UPON THE SAME ALLEGATIONS IN THIS MATTER
AND IN WHICH HE MISSTATED TO THE COURT THAT HE HAD
APPROPRIATELY EXHAUSTED ADMINISTRATIVE REMEDIES.
Dkt. 3, Ex. K (capitalization in original). Counsel for the
Unfortunately, your client's condition that Mr. Ivie
withdraw his California lawsuit is untenable for the
Commission. The EEOC cannot settle claims as part of its
informal endeavors of conciliation on which it did not find
probable cause of a violation and on which it has no
authority to litigate. . . .
If your client is amenable to dropping this condition to your
September 22 offer of relief, the commission may be able to
reach an acceptable agreement with your client through
further conciliation discussions.
Dkt. 3, Ex. L. On October 9, 2014, BVA's counsel
responded, " I have spoken to my clients. They are not
willing to discuss monetary settlement with any of the
charging parties without a global settlement of all
claims." Dkt. 5, Ex. G, at 1.
days later, the EEOC formally notified BVA that the
conciliation efforts had been unsuccessful, no further
conciliation efforts would be made, and the cases would be
considered " for possible litigation." See
Dkt. 3, Ex. M. The EEOC then filed this suit, seeking
monetary relief on behalf of Ms. Matthews and Mr. Martinez
and injunctive and declaratory relief. See Dkt. 1 at
1, 8-9. The EEOC does not seek relief on behalf of Mr. Ivie.
Id. BVA has moved to dismiss for lack of
subject-matter jurisdiction under Rule 12(b)(1) of the
Federal Rules of Civil Procedure. See Dkt. 3 at 1,
argues that the EEOC failed to satisfy two preconditions to
suit under the ADEA: " (1) [to] make a good faith
attempt to conciliate, and (2) [to] make an independent
investigation of the charges of discrimination at
issue." See Dkt. 3 at 3. According to BVA, the
EEOC's failure to comply with these prerequisites
deprives the Court of subject matter jurisdiction. See
id. In response, the EEOC argues that these statutory
requirements are not jurisdictional, see Dkt. 5 at
5-6, and that the Court should treat BVA's motion as a
motion for summary judgment, see id. at
6-7. The EEOC further argues that the ADEA requires only
conciliation, not investigation, and that in any event, it
satisfied both requirements. See id. at
13-18, 23-24. The Court will first address whether the
ADEA's pre-suit requirements are jurisdictional in
Whether the ADEA's Pre-Suit Requirements Are
to filing an ADEA enforcement action, the EEOC must satisfy
certain statutory requirements. Section 7(b) of the ADEA
requires that " [b]efore instituting any action under
this section, the [EEOC] shall attempt to eliminate the
discriminatory practice or practices alleged, and to effect
voluntary compliance with the requirements of [the ADEA]
through informal methods of conciliation, conference, and
persuasion." See 29 U.S.C. § 626(b). The
premise of BVA's motion to dismiss is that completion of
the conciliation requirement is a prerequisite to the
exercise of the court's subject matter
jurisdiction. The EEOC, citing the Supreme
Court's decision in Arbaugh v. Y& H Corp., 546
U.S. 500, 515-16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006),
argues that this requirement is non-jurisdictional. Although
a plaintiff's failure to satisfy a non-jurisdictional
requirement may also justify dismissal, the distinction
between jurisdictional and non-jurisdictional prerequisites
to suit is important because it affects the legal standard
applicable to a threshold motion and whether disposition of
such a motion constitutes " a ruling on the merits with
res judicata effect." Haase v.
Sessions, 835 F.2d 902, 906, 266 U.S. App.D.C. 325 (D.C.
[J]urisdictional statutes speak to the power of the court
rather than to the rights or obligations of the
parties." Landgraf v. Usi Film Prods., 511 U.S.
244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quotation
marks omitted). When " determining whether to classify a
statutory limitation as jurisdictional," a court must
" inquire whether Congress has 'clearly
state[d]' that the rule is jurisdictional," and
" absent such a clear statement, . . . 'courts
should treat the restriction as nonjurisdictional in
character.'" Sebelius v. Auburn Reg'l Med.
Ctr., 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013)
(quoting Arbaugh, 546 U.S. at 515-16). The Supreme
Court has repeatedly cautioned against reading jurisdictional
requirements into statutory provisions absent a clear
directive from Congress. See, e.g., id. at
826 (holding that a time limit governing certain
administrative appeals under the Medicare Act was not
jurisdictional); Arbaugh, 546 U.S. at 516 (holding
that " the threshold number of employees for application
of Title VII is an element of a plaintiff's claim for
relief, not a jurisdictional issue" ); Zipes v.
TWA, 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234
(1982) (holding that compliance with an administrative filing
period is " not a jurisdictional prerequisite to filing
a Title VII suit, but a requirement subject to waiver as well
as tolling when equity so requires" ); Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 169, 130 S.Ct.
1237, 176 L.Ed.2d 18 (2010) (holding that a registration
requirement in the Copyright Act " is nonjurisdictional,
notwithstanding its prior jurisdictional treatment" ).
The jurisdictional inquiry requires an 'examination of
the condition's text, context, and relevant historical
treatment.'" Oakey v. U.S. ...