Equal Emp't Opportunity Comm'n v. Mach Mining, LLC

• Decision Date: 20 December 2013
• Docket Number: No. 13–2456.,13–2456.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, v. MACH MINING, LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

738 F.3d 171

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant,

v.MACH MINING, LLC, Defendant–Appellee.

No. 13–2456.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 29, 2013.

Decided Dec. 20, 2013.

Deborah L. Hamilton, Attorney, Equal Employment Opportunity Commission, Chicago, IL, Eric A. Harrington, Attorney, Equal Employment Opportunity Commission, Washington, DC, for Plaintiff–Appellant.

David Lawrence Schenberg, Attorney, Robert L. Witcher, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, St. Louis, MO, for Defendant–Appellee.

Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Title VII of the Civil Rights Act of 1964 directs the Equal Employment Opportunity Commission to try to negotiate an end to an employer's unlawful employment practices before suing for a judicial remedy. 42 U.S.C. § 2000e–5(b). Defendant Mach Mining, LLC, the target of an EEOC lawsuit for sex discrimination in hiring, sees in this statutory instruction an implied affirmative defense in its discrimination case. Mach Mining seeks dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing suit. The EEOC moved for summary judgment on this “failure-to-conciliate” defense, arguing that courts should look no further than the face of the complaint to review the sufficiency of the conciliation process itself. The district court denied that motion but certified for interlocutory appeal the question whether an alleged failure to conciliate is subject to judicial review in the form of an implied affirmative defense to the EEOC's suit.

We reverse the district court's denial of summary judgment on the affirmative defense. The language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle. An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process “as evidence in a subsequent proceeding.” 42 U.S.C. § 2000e–5(b). We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.

Factual and Procedural Background

The EEOC received a charge of discrimination in early 2008 from a woman who claimed Mach Mining had denied a number of her applications for coal mining jobs because of her gender. After investigating the charge, the agency determined there was reasonable cause to believe Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Illinois. In late 2010, the EEOC notified the company of its intention to begin informal conciliation. The parties discussed possible resolution but did not reach an agreement. In September 2011, the EEOC told Mach Mining that it had determined the conciliation process had been unsuccessful and that further efforts would be futile. The EEOC filed its complaint in the district court two weeks later. There is no challenge here to the facial sufficiency of these documents. See EEOC v. Shell Oil Co., 466 U.S. 54, 81, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984).

Mach Mining's answer denied unlawful discrimination and asserted several affirmative defenses. The only defense relevant to this appeal is the allegation that the suit should be dismissed because the EEOC failed to conciliate in good faith. The parties have spent nearly two years sparring over whether this is a sufficient ground for dismissing the discrimination case. The defense has been the subject of extensive discovery requests by Mach Mining seeking information about the EEOC's investigation and conciliation efforts. The defense has also slowed discovery on the merits of the underlying discriminatory hiring claim. Mach Mining has asserted failure to conciliate as a basis for objecting to a number of the EEOC's discovery requests. The EEOC moved for summary judgment solely on the issue of whether, as a matter of law, an alleged failure to conciliate is an affirmative defense to its suit for unlawful discrimination.

In denying the EEOC's motion, the district court held that courts should evaluate conciliation to the extent needed to “determine whether the EEOC made a sincere and reasonable effort to negotiate.” EEOC v. Mach Mining, LLC, 2013 WL 319337, at *5 (S.D.Ill. Jan. 28, 2013) (internal quotations omitted). Because the EEOC had not argued that its efforts were either sincere or reasonable, only that they were not reviewable as a defense to unlawful discrimination, the district court had no occasion to demonstrate what its proposed standard might mean in practice. The district court followed decisions of other circuits holding (and sometimes simply assuming) that judicial review of conciliation is appropriate in the form of an affirmative defense. See EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir.2012); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir.2003); EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir.1996); EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir.1984); EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir.1981); EEOC v. Radiator Specialty Co., 610 F.2d 178 (4th Cir.1979); EEOC v. Zia Co., 582 F.2d 527 (10th Cir.1978).

The district court recognized at the same time that the EEOC's position had merit and raised arguments not considered by other circuits. It thus certified for interlocutory appeal under 28 U.S.C. § 1292(b) whether and to what extent conciliation is judicially reviewable through an implied affirmative defense. We accepted the appeal because it presents a controlling question of law as to which there is substantial ground for difference of opinion, because the resolution may advance the ultimate termination of the case, and because of the importance of the issue.

Analysis

In evaluating whether Mach Mining has a legally viable affirmative defense for failure to conciliate, we consider (1) the statutory language, (2) whether there is a workable standard for such a defense, (3) whether the defense might fit into the broader statutory scheme, and (4) our relevant case law. We then review (5) the decisions of other courts recognizing the affirmative defense that we reject here.

I. Statutory Language

We begin our analysis, of course, with the text of the statute, mindful of the Supreme Court's recent admonition that “Congress' special care in drawing so precise a statutory scheme” as Title VII “makes it incorrect to infer that Congress meant anything other than what the text does say.” University of Texas Southwestern Med. Ctr. v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2530, 186 L.Ed.2d 503 (2013). The text of Title VII contains no express provision for an affirmative defense based on an alleged defect in the EEOC's conciliation efforts. In “the context of a statute as precise, complex, and exhaustive as Title VII,” id., this silence itself is compelling. We do not rely only on that silence, however. We are also persuaded by the express statutory language making clear that conciliation is an informal process entrusted solely to the EEOC's expert judgment and that the process is to remain confidential.

The EEOC's enforcement procedures under Title VII are spelled out in section 706 of the Civil Rights Act of 1964 as amended. 42 U.S.C. § 2000e–5. The process begins when the agency receives a charge of discrimination from an aggrieved employee or a Commission member. It then must notify the employer and investigate whether reasonable cause exists to support the allegations.

A finding of cause triggers the conciliation process: “If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” § 2000e–5(b). The EEOC may sue only after it “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.” § 2000e–5(f)(1). Title VII allows the entire process to move fairly quickly, at least in some cases. The only time limit on the EEOC's ability to sue is that it not do so within the first 30 days after receiving the original charge. See § 2000e–5(f)(1); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 360, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977).

The words are significant: “ endeavor to eliminate ” discriminatory practices “by informal methods of conference, conciliation, and persuasion.” § 2000e–5(b). If it is “unable to secure from the respondent a conciliation agreement acceptable to the Commission,” the agency may then sue. § 2000e–5(f)(1). What we have then is an instruction to the EEOC to try, by whatever methods of persuasion it chooses short of litigation, to secure an agreement that the agency in its sole discretion finds acceptable. It would be difficult for Congress to have packed more deference to agency decision-making into so few lines of text.

The only other statutory terms in Title VII addressing the conciliation process make all details of the conciliation process strictly confidential. Violators are even subject to criminal prosecution: “Nothing said or done during and as a 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...