IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Equal Employment Opportunity Commission, )

Plaintiff-Appellant, )

)

v. ) No. 13-2456

)

Mach Mining, LLC, )

Defendant-Appellee. )

_________________________________________)

Circuit Rule 54 Statement of the Equal Employment

Opportunity Commission

The Supreme Court has remanded this case for further proceedings. Pursuant to Circuit Rule 54, the EEOC offers its views as to the action this Court should take.

A. Background

In 2008, a woman who had unsuccessfully applied for a mining position with Mach Mining filed a charge of unlawful discrimination with the EEOC. She contended that Mach Mining, which had never hired a woman for a mining position, refused to hire her based on her gender. The EEOC investigated the charge, found reasonable cause to believe Mach Mining had discriminated against a class of women who applied for mining-related jobs, and invited Mach Mining to conciliate. From late 2010 to late 2011, the EEOC attempted conciliation with Mach Mining but no agreement was reached.

The EEOC then filed this lawsuit, contending that Mach Mining engaged in a pattern or practice of unlawful employment discrimination and used employment practices that had a disparate impact on female applicants. In its answer, Mach Mining asserted a failure-to-conciliate affirmative defense, contending that the complaint should be dismissed because the EEOC had failed to expend sufficient efforts on conciliation. The EEOC responded that Title VII includes no such failure-to-conciliate affirmative defense and moved for partial summary judgment on that basis.

In its opposition to this motion, Mach Mining argued “that not only did EEOC fail to respond in a reasonable and flexible manner to the reasonable attitudes of Mach, but EEOC acted hastily with respect to the conciliation process, demonstrating EEOC was committed to litigating this action early on . . . .” (R.42 at 17) Mach Mining criticized the EEOC for refusing to identify the individual members of the class for whom it was seeking relief, refusing to provide information on damages and qualifications for each member of the class, ignoring Mach Mining’s request to meet in person, and terminating conciliation prematurely. (Id. at 18-20) The EEOC does not admit the truth of these claims.

The district court denied the EEOC’s motion for partial summary judgment. Relying on precedent from other circuits, the court concluded that it may review the EEOC’s conciliation efforts to determine whether the EEOC “made a sincere and reasonable effort to negotiate.” (R.55 at 8) The court denied the EEOC’s motion for reconsideration but certified to this Court the questions whether and to what extent the EEOC’s efforts to informally resolve a charge of discrimination prior to suit are judicially reviewable. (R.86 at 9, 11)

This Court reversed. The Court concluded, based on the statute’s text, the lack of any meaningful standard of review, and the statute’s overall scheme and purposes, that “an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.” (7th Cir. Slip Op. at 2) In the Court’s view, if the EEOC has “ple[aded] on the face of its complaint that it has complied with all procedures required under Title VII” and the relevant documents (letter of determination and notice of conciliation failure) are “facially sufficient,” then no further judicial review is warranted. (Id. at 27)

The Supreme Court granted certiorari and vacated this Court’s judgment. The Supreme Court held that a court may review the EEOC’s conciliation efforts but that “the scope of that review is narrow.” (S.Ct. Slip Op. at 1) “Congress left to the EEOC,” the Court explained, “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 – as Mach Mining urges and many courts have done – is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far.” (Id. at 11)

The Court then articulated a standard of review for the EEOC’s conciliation efforts. “[T]he 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. And 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. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them.” (Id. at 13)

B. Action This Court Should Take

Mach Mining concedes that the EEOC engaged in conciliation but challenges the sufficiency of the EEOC’s efforts. It complained to this Court that the EEOC “ceased negotiations despite Mach’s numerous substantial counteroffers and Mach’s express willingness to continue negotiations.” (7th Cir. R.11 at 6) These are precisely the type of challenges that the Supreme Court said are beyond judicial review. (S.Ct. Slip Op. at 11)

To the extent Mach Mining argues that the EEOC should have identified every class member by name and provided details about every class member’s unique experiences, this argument, too, is precluded by the Supreme Court’s decision. As the Supreme Court explained, the EEOC must tell the employer “which person or class” has been harmed. (Id. at 7) The EEOC’s letter of determination identified “a class of female applicants [whom Mach Mining] failed to recruit and hire.” (R.32-1 at 6) Because Mach Mining has never hired a woman into a mining position, this description of the class provides sufficient notice.

The record in this case leaves no doubt that the EEOC satisfied its conciliation obligation. Accordingly, no purpose would be served by remanding this question for the district court to decide in the first instance. The EEOC respectfully requests that this Court reverse the denial of partial summary judgment on Mach Mining’s failure-to-conciliate affirmative defense.

Respectfully submitted,

P. DAVID LOPEZ /s/ Gail S. Coleman

General Counsel Attorney

EQUAL EMPLOYMENT

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

CAROLYN L. WHEELER Washington, DC 20507

Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov