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Equal Employment Opportunity Commission v. Blinded Veterans Ass'n

United States District Court, D. Columbia.

July 7, 2015

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
BLINDED VETERANS ASSOCIATION, Defendant

Page 34

          For 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.

         For BLINDED VETERANS ASSOCIATION, Defendant: Melissa E. Hoppmeyer, Tina M. Maiolo, LEAD ATTORNEYS, CARR MALONEY PC, Washington, DC.

Page 35

         MEMORANDUM OPINION AND ORDER

         RANDOLPH D. MOSS, United States District Judge.

         In 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.

         After 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.

         I. BACKGROUND

         In 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, Ex. B.

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          The 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:

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 EEOC responded:

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.

         Six 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, 5.

         II. DISCUSSION

         BVA 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 has

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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 nature.

         A. Whether the ADEA's Pre-Suit Requirements Are Jurisdictional

         Prior 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.[1] 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. Cir. 1987).

         " [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. ...


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