LORETTA A. PRESKA, Chief Judge:
Plaintiff, the Equal Employment Opportunity Commission ("EEOC"), filed this action against Defendant Bloomberg L.P. ("Bloomberg") after several current and former employees had filed charges with the EEOC alleging sex/pregnancy discrimination and retaliation
Pending before the Court are two motions for summary judgment brought by Bloomberg. One motion seeks summary judgment on all remaining Section 706 claims brought by the EEOC on behalf of twenty-nine
For the reasons set forth below, the first of these motions by Defendant is GRANTED.
The basic allegations and the procedural history of this case as it pertains to the claims brought by the EEOC on behalf of the Non-Intervenor Plaintiffs are stated adequately in the Court's prior opinions, with which the Court assumes familiarity. EEOC v. Bloomberg L.P. (Bloomberg III), 778 F.Supp.2d 458 (S.D.N.Y.2011); EEOC v. Bloomberg L.P. (Bloomberg II), 751 F.Supp.2d 628 (S.D.N.Y.2010); EEOC v. Bloomberg L.P. (Bloomberg I), No. 07 Civ.
The EEOC began its investigation into Bloomberg after the Charging Parties filed sex/pregnancy discrimination charges with the EEOC against Bloomberg. Bloomberg II, 751 F.Supp.2d at 632. The Charging Parties alleged in their EEOC charges of discrimination that Bloomberg had a "pervasive bias" and discriminated against other women who had returned from maternity leave or had small children at home. Id.
Following these leads, the EEOC expanded its investigation into Bloomberg's related employment practices more generally. For example, the EEOC asked for and received from Bloomberg information with respect to hundreds of women who had taken maternity leave companywide and investigated the diminished number of employees who reported to females following their pregnancies. Id. It also interviewed other potential claimants, requested information from Bloomberg about twenty-four other employees who had been on parental leave, and received information about fourteen other similar claimants who were demoted. Id.
On June 19, 2007, the EEOC received from Bloomberg a spreadsheet containing the names of women who had taken maternity leave between January 1, 2003, and June 12, 2007 (the "maternity leave list"). (See Letter from Raechel L. Adams, Supervisory Trial Att'y, EEOC, to The Hon. Loretta A. Preska, Chief Judge, S.D.N.Y. (May 23, 2013) [dkt. no. 556] ("EEOC May 23 Ltr."), at 3.)
On June 27, 2007, the EEOC sent Bloomberg a Letter of Determination ("LOD") regarding the sex/pregnancy discrimination claims, a proposed conciliation agreement, and additional monetary demands from the Charging Parties. Bloomberg II, 751 F.Supp.2d at 632. The LOD laid out the Charging Parties' basic allegation:
Id.
Moreover, the LOD did not limit itself to the Charging Parties' allegations but continues by stating that the Charging Parties' claims of discrimination "were echoed by a number of other female current and former employees who have taken maternity leave. EEOC's investigation shows that [these additional employees'] careers lost momentum and that they were transferred, displaced, and/or demoted." Id. As such, armed with the Charging Parties' allegations and its own investigation purporting to show that other employees suffered similar discrimination, the EEOC set forth its reasonable cause determination: "The [EEOC] finds cause to believe that [Bloomberg] discriminated against the three Charging Parties and a class of similarly-situated women based on their sex/pregnancy by demoting them, decreasing their compensation, and otherwise discriminating against them in terms, conditions or privileges of their employment." Id.
Along with the LOD, the EEOC sent Bloomberg a proposed conciliation agreement. Bloomberg II, 751 F.Supp.2d at 632-33. The agreement contained two sections pertaining to monetary relief being sought. (See Golden Decl. Ex. 2 at EE00017-19.) First, the EEOC set forth its proposal for "Monetary Relief to Charging Parties." (See id. at EE00017.) Under this proposal, the EEOC set forth specific, individual amounts of relief for each of the Charging Parties.
Under this latter section concerning monetary relief, the EEOC proposed that Bloomberg would pay a set amount ($7,500,000) "to establish the Claim Fund, which [would] be divided among all the Class Members by the [EEOC]." (Id. at EE00018.) The agreement refers generally to and defines "Potential Class [M]embers... as female employees who took maternity leave between January 1, 2003, and the present." (Id. (emphasis added).) Nowhere in the proposed agreement does the EEOC note whether any specific individual class members already have been identified. Rather, the agreement simply notified Bloomberg that Class Members would be defined as:
(Id.) Additionally, the agreement puts the onus onto Bloomberg to notify potential class members about their possible eligibility, while reserving power to the EEOC "to determine the eligibility of Potential Class Members" and "to make all determinations
The EEOC requested a counterproposal by July 11, 2007, by which time the parties evidently had discussed some logistical matters about the conciliation process and had met to discuss the EEOC's proposed agreement. Bloomberg II, 751 F.Supp.2d at 637. Thereafter, in a letter dated July 12, 2007, the EEOC extended the date by which it expected a counterproposal and explained that the proposal need not be a "fully developed draft." Id. The EEOC did, however, reiterate the three areas of relief on which it was focusing conciliation discussions: (1) monetary offers to each of the Charging Parties separately, (2) creation of a class fund, and (3) injunctive relief. (See Decl. of Kam S. Wong in Opp'n to Def.'s Mot. for Summ. J. on Pl.'s Failure to Conciliate (May 14, 2010) [dkt. no. 127], Ex. 28.)
After a series of meetings, on August 23, 2007, Bloomberg sent the EEOC a written counterproposal, which acknowledged the EEOC's three focal points of conciliation and stated that Bloomberg was "willing to engage in the conciliation process with a view towards" an amicable resolution. Bloomberg II, 751 F.Supp.2d at 637-38 (citation omitted). Nevertheless, Bloomberg made clear it believed the charges lacked merit and countered by offering each of the Charging Parties $65,000 (in contrast to the EEOC's demand for more than $6 million on behalf of each). Id. at 638. Bloomberg's counterproposal also offered to discuss "policies and practices with the [EEOC] to identify gender-neutral enhancements that would address the particular needs of working parents ...." Id. (citation omitted). Finally, Bloomberg stated that it "[could not], however, agree to the establishment of a `Claim Fund'" and that absent further information about other potential claimants, "any discussion of monetary settlements should be limited" to the Charging Parties. Id. (citation omitted). The next day, the EEOC sent Bloomberg a letter declaring that conciliation has been unsuccessful and that further conciliation efforts would be futile. Id.
Approximately one month later, Plaintiff EEOC brought the instant case on behalf of a class of similarly situated women who were pregnant and took maternity leave ("Class Members"). The EEOC's suit alleges that Bloomberg reduced pregnant women's or mothers' pay, demoted them in title or in number of directly reporting employees (also called "direct reports"), reduced their responsibilities, excluded them from management meetings, and subjected them to stereotypes about female caregivers, any and all of which violated Sections 706 and 707 of Title VII because these adverse employment consequences were based on the class members' pregnancy or the fact that they took leave for pregnancy related-reasons.
After extensive discovery, Bloomberg moved for summary judgment on the EEOC's pattern and practice claims arising under Section 707, and on August 16, 2011, this Court dismissed those claims. Bloomberg III, 778 F.Supp.2d at 486. The EEOC now purports to continue the instant action by asserting individual claims arising under Section 706 on behalf of twenty-nine claimants.
In considering a motion for summary judgment, the Court resolves all ambiguities and draws all reasonable inferences against the moving party. Lindsay v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 50 (2d Cir.2009). "Summary judgment is appropriate only `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.'" Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir.2011) (quoting Fed.R.Civ.P. 56(a)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." Lindsay, 581 F.3d at 50. "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505.
Rule 56 mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). In the face of insufficient evidence, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.
"Title VII of the Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e et seq., prohibits various forms of employment discrimination on the basis of race, color, religion, sex, or national origin." United States v. City of N.Y., 713 F.Supp.2d 300, 316 (S.D.N.Y.2010). As amended by the Pregnancy Discrimination Act of 1978 ("PDA"), Title VII prohibits "discrimination based on a woman's pregnancy [because it] is, on its face, discrimination because of her sex." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983). Specifically, the PDA adds this definition to Title VII:
42 U.S.C. § 2000e(k); see id. § 2000e-1(a)-(b). Thus, to make out a pregnancy discrimination claim, the plaintiff must show that she was treated differently from others who took leave or were otherwise unable or unwilling to perform their duties for reasons unrelated to pregnancy or that she simply was treated differently because of her pregnancy. Velez v. Novartis Pharm. Corp., 244 F.R.D. 243, 264 (S.D.N.Y.2007) ("It has been repeatedly affirmed that the PDA does not require the creation of special programs for pregnant women; nor does it mandate any special treatment. To the contrary, the statute specifically requires that pregnant women be treated the same as all other employees with similar disabilities." (quoting Dimino v. N.Y.C. Transit Auth., 64 F.Supp.2d 136, 157 (E.D.N.Y.1999))); see Fisher v. Vassar Coll., 70 F.3d 1420, 1448 (2d Cir.1995), reheard en banc on other grounds, 114 F.3d 1332 (2d Cir.1997), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
An action for violation of Title VII can be brought by the person affected or by the EEOC. Here, the EEOC has brought an enforcement action under 42 U.S.C. § 2000e-5(f) on behalf of the twenty-nine Non-Intervenor Plaintiffs. In this type of action, the EEOC can request injunctive or monetary "relief for a group of aggrieved individuals." Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 324, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Individuals can also intervene to assert their own claims, as has been done here by the Plaintiff-Intervenors.
Before initiating this type of enforcement action, however, Congress requires that the EEOC engage in specific pre-litigation activities, including investigating the claim and attempting to "eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion," id. § 2000e-5(b). See EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534-35 (2d Cir.1996). Specifically, prior to filing suit the EEOC must: (1) receive a formal charge of discrimination against the employer; (2) provide notice of the charge to the employer; (3) investigate the charge; (4) make and give notice of its determination that there was reasonable cause to believe that a violation of Title VII occurred; and (5) make a good faith effort to conciliate the charges. See 42 U.S.C. § 2000e-5(b).
These pre-litigation requirements represent "sequential steps in a unified scheme for securing compliance with Title VII." EEOC v. Hickey-Mitchell Co., 507 F.2d 944, 948 (8th Cir.1974) (emphasis in original); see also EEOC v. E.I. DuPont de Nemours & Co., 373 F.Supp. 1321, 1336 (D.Del.1974), aff'd, 516 F.2d 1297 (3d Cir.1975). As for the notice requirement, notice of the particulars of the investigation is not required, and the scope of the EEOC's initial investigation does not limit the scope of the lawsuit alleging Title VII violations it may later bring. "Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable." EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir.2005) (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)). In other words, the EEOC may bring any claims reasonably related to the charge it investigated. EEOC v. Golden Lender Fin. Corp., No. 99 Civ. 8591, 2000 WL 381426, at *4 (S.D.N.Y. Apr. 13, 2000) (Koeltl, J.).
The contours of the conciliation process will vary from case to case, but the process is designed to "allow[] the employer and the EEOC to negotiate how the employer might alter its practices to comply with the law, as well as how much, if any, the employer will pay in damages." Johnson & Higgins, 91 F.3d at 1535; accord Marshall v. Sun Oil Co., 605 F.2d 1331, 1334 (5th Cir.1979). The Court's role in reviewing efforts to conciliate, while not inert, is modest; the EEOC, as the enforcement agency, has discretion to formulate conciliation efforts in each situation, but it must do so in good faith. See Sears, 650 F.2d at 18-19 ("Although in general the [EEOC] should be given wide latitude in shaping [conciliation efforts], the [EEOC]'s discretion is not unlimited...." (citation omitted)); see also Johnson & Higgins, 91 F.3d at 1534; EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir.1984). As this Court noted in Bloomberg II, however, the EEOC cannot "attempt conciliation on one set of issues and having failed, litigate a different set." Sears, 650 F.2d 14, 19. As part of attempting conciliation, then, the EEOC has to provide sufficient notice to the employer of the nature of the charges against it so as to set the stage for fruitful conciliation discussions. See, e.g., id.; EEOC v. Chesapeake & Ohio Ry. Co., 577 F.2d 229, 232 (4th Cir.1978) (stating that EEOC should "notify an employer of the [its] findings and ... provide common ground for conciliation"); see also EEOC v. Outback Steakhouse of Fla., Inc., 520 F.Supp.2d 1250, 1262 (D.Colo.2007).
Congress has afforded the EEOC a number of tools under Title VII to address different types of discrimination; it has also imposed limits on its enforcement authority. Just as Congress has charged the EEOC with helping ensure that employers do not single out employees on account of certain characteristics, this Court is charged with ensuring that any actions brought before it by the EEOC are within the parameters of the law as set forth by Congress, regardless of how well-intentioned the EEOC's purpose.
Congress was very mindful when enacting and later amending Title VII that it provide a scheme emphasizing voluntary proceedings and informal conciliation as opposed to one encouraging litigious proceedings. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367-68, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) ("Congress, in enacting Title VII, chose "(c)ooperation and voluntary compliance ... as the preferred means of achieving" its goals." (quoting
Here, the EEOC initiated an investigation of Bloomberg based on the Charging Parties' allegations of discrimination. The LOD addressed those allegations and continued by alerting Bloomberg that the EEOC had determined that the alleged discriminatory conduct extended to "other female current and former employees who have taken maternity leave." (See LOD.) The LOD concluded by setting forth a reasonable cause determination that Bloomberg "discriminated against the three Charging Parties and a class of similarly-situated women based on their sex/pregnancy." (Id.)
According to the EEOC, "this Court already held that [the] EEOC met its statutory conciliation obligation with respect to its class-wide sex/pregnancy discrimination claims." (See EEOC's Omnibus Mem. of Law in Opp'n to Bloomberg's Motion on Section 706 Claims [dkt. no. 328] ("EEOC's Omnibus Br."), at 25 (citing Bloomberg II, 751 F.Supp.2d 628).) From this observation, the EEOC argues that the Court's holding with respect to the EEOC's statutory pre-litigation obligations in the context of its class-wide claims also should apply to its obligations in the context of the individual claims it pursues now. Nowhere in the LOD, however, does the EEOC mention the names of any individual claimants other than the Charging
Although the EEOC became aware before filing suit that at least twenty-one of the Non-Intervenors took maternity leave, the record reflects that several of the Non-Intervenors were not contacted by the EEOC until after the instant suit was filed. (See, e.g., Adams Am. Decl. in Opp'n to Def.'s Mot. for Summ. J. as to EEOC's Pattern-or-Practice Claim [dkt. no. 192], Ex. 9 (Stefanie Batcho-Lino Dep.), at 38.; Golden Reply Decl., Ex. J (Sofia Fernandez Dep.), at 5; Decl. of Thomas H. Golden Concerning Aimee Picchi [dkt. no. 276], Ex. 2 (Picchi Dep.), at 287.) Additionally, nothing in the record indicates that the EEOC requested contact information for claimants included on the maternity leave list prior to January 23, 2008. (See Bloomberg 56.1 ¶ 5; EEOC 56.1 ¶ 5.) On the other hand, the record does reflect that less than ten days after Bloomberg provided the maternity leave list, the EEOC issued its LOD.
Throughout the course of this litigation, the EEOC identified more than eighty claimants (including the Claimant Parties) as the action progressed. After this Court dismissed the Section 707 claims, however, the EEOC continued this litigation on behalf of only thirty-two individual claimants. The record shows that the EEOC spurned any efforts to conciliate individual claims beyond those of the Claimant Parties, let alone offer Bloomberg an opportunity to tailor any class-wide conciliatory efforts to the breadth of legitimate claims it might face. On August 23, 2007, Bloomberg explicitly offered to discuss cases of "identified individuals [the EEOC believed] may have legitimate grievances against the Company as a result of their experiences following their return from maternity leave" and "explore whether there is a basis on which their (and the Commission's) concerns can be addressed." (Golden Decl. Ex. 3, at EE00034.) Rather than identify to Bloomberg any additional potential claimants (or even respond to this request), the EEOC declared conciliation unsuccessful the very next day and filed suit a month later. The EEOC did not formally identify to Bloomberg any of the Non-Intervenors until nearly five months later on January 17, 2008. And never did the EEOC attempt to revisit conciliation with respect to any individual claims upon identifying each to Bloomberg.
The EEOC may bring any claims reasonably related to the charge it investigated.
Rather than presenting evidence that an investigation was commenced into any of the remaining Non-Intervenor's claims prior to filing suit, the EEOC tries to divert the Court's attention from the absence of any such investigation by stringing together citations from cases standing for the proposition that courts should refrain from reviewing the sufficiency of the underlying investigation. (See May 23 Ltr., at 1-3.) While such an argument patently conflates the principle of granting deference to the discretionary actions of federal agencies with the Court's duty to ensure that a required action was performed at all, the undisputed facts in the record make it apparent that the statutorily-required investigation never occurred, and thus, there is no such to review. Because the record discloses that the EEOC issued an LOD within ten days of receiving the maternity leave list, that the EEOC refused to identify any individual claimants other than the Claimant Parties during conciliation discussions, that after commencing litigation the EEOC identified a total of approximately seventyeight claimants to Bloomberg as class members between January 17, 2008, and January 10, 2010, and that there is no other evidence of pre-suit investigation, the only inference to be drawn is that the EEOC resorted to discovery conducted in conjunction with its class-wide claims to find the individual claimants. Thus, the Court holds that no genuine issue of fact remains as to whether the EEOC investigated any of the Section 706 individual claims prior to commencing litigation. Nevertheless, even assuming the EEOC can satisfy its pre-litigation obligation of investigation, it remains apparent that the EEOC completely contravened its other obligations under Title VII.
The EEOC's pre-litigation conduct also failed to meet the requirements of the statute insofar as it failed to make a reasonable cause determination as to the specific allegations of any of the Non-Intervenors prior to filing the Complaint
the Court holds that the EEOC failed to satisfy its pre-litigation obligations with respect to all of the remaining Non-Intervenor claims of making a reasonable cause determination or ensuring that additional claims were reasonably related to the charge contained within the LOD so as to afford Bloomberg a reasonable opportunity to conciliate.
In so holding, the Court adopts the following reasoning from Chief Judge Linda R. Reade's analysis in EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR, 2009 WL 2524402 (N.D.Iowa Aug. 13, 2009), aff'd, 679 F.3d 657 (8th Cir.2012), a case dismissed under similar circumstances as those presented here: "To rule to the contrary would severely undermine if not completely eviscerate Title VII's integrated, multistep enforcement procedure, expand the power of the EEOC far beyond what Congress intended[,] and greatly increase litigation costs.... To accept the EEOC's view of its own authority would also impose an untenable burden upon the federal district courts, as the EEOC might avoid administrative proceedings for the vast majority of allegedly aggrieved persons." Id. at *17-18 (internal quotation marks and citations omitted). Moreover, to the extent that Bloomberg knew or should have known many other women were complaining of pregnancy discrimination, "[e]ven the most recalcitrant employer who flouts Title VII's prohibitions against unlawful employment discrimination... is due the process that Title VII mandates. Congress surely did not intend that employers, even ones whose workplaces might be rife with [sex discrimination], face the moving target of allegedly aggrieved persons that [Bloomberg] faced in both the administrative and legal phases of this dispute." Id. at *18 (citation omitted). As in CRST, the EEOC's actions — or more appropriately, inaction — "foreclosed any possibility that the parties might settle all or some of this dispute without the expense of a federal lawsuit," id., as
Having found the EEOC's efforts to fulfill its pre-litigation obligations with respect to all of the remaining Non-Intervenor claims insufficient to meet the requirements of the statute, the Court now must determine whether this litigation can continue further. The EEOC points out that where a court finds "conciliation efforts deficient, the preferred remedy [is not] dismissal but a stay to permit serious settlement discussions." (See EEOC Omnibus Br., at 25 n. 16 (citing Sears, 650 F.2d at 19, and EEOC v. David Lerner Assocs., Inc., No. 3:05CV292(MRK), 2005 WL 2850080, at *1 n. 2 (D.Conn. Oct. 27, 2005)).) Nevertheless, where, as here, the EEOC completely abdicates its role in the administrative process, the appropriate remedy is to bar the EEOC from seeking relief on behalf of the Non-Intervenors at trial and dismiss the EEOC's Complaint.
The Court does not impose this severe sanction lightly and recognizes that certain of the Non-Intervenor claims may be meritorious but now will never see the inside of a courtroom. However, the Court finds that allowing the EEOC to revisit conciliation at this stage of the case — after shirking its pre-litigation investigation responsibilities and spurning Bloomberg's offer of conciliation and instead engaging in extensive discovery to develop the Non-Intervenor claims — already has and would further prejudice Bloomberg. Moreover, if such a sanction were not imposed, the Court, in turn, would be sanctioning a course of action that promotes litigation in contravention of Title VII's emphasis on voluntary proceedings and informal conciliation.
Bloomberg's motion for summary judgment on all remaining Section 706 claims brought by the EEOC on behalf of the Non-Intervenors [dkt. no. 219] is GRANTED, and the EEOC is barred from seeking claims on behalf of those individuals. Under 42 U.S.C. § 2000e-5(k), Bloomberg is now a "prevailing party" as to the EEOC and may file an application for attorneys' fees from the EEOC within twenty days after disposition of the entire case. Formal judgment shall not enter against the EEOC and in favor of Bloomberg until the Court enters judgment on the pending claims of the remaining Plaintiff-Intervenors.
SO ORDERED.