E.E.O.C. v. Asplundh Tree Expert Co., 02-12386.

• Decision Date: 07 August 2003
• Docket Number: No. 02-13571.,No. 02-12386.,02-12386.,02-13571.
• Citation: 340 F.3d 1256
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1256

340 F.3d 1256

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee.

No. 02-12386.

No. 02-13571.

United States Court of Appeals, Eleventh Circuit.

August 7, 2003.

Susan Ruth Oxford, U.S. EEOC, Washington, DC, for Plaintiff-Appellant.

Mark Stuart, Crofton, MD, Michael Mattimore, Robert E. Larkin, III, Allen, Norton & Blue, P.A., Tallahassee, FL, for Defendant-Appellee.

Rae Thiesfield Vann, McGuiness, Norris & Williams, LLP, Stephen A. Bokat, Nat. Chamber Lit. Ctr., Inc., Washington, DC, for Amicus Curiae.

Appeals from the United States District Court for the Northern District of Florida.

Before BLACK and HILL, Circuit Judges, and FITZPATRICK^*, District Judge.

HILL, Circuit Judge:

These consolidated appeals are from the dismissal of the action and the award of attorney's fees against the Equal Employment Opportunity Commission. For the following reasons, we affirm the judgments of the district court.

I.

In 1993, Asplundh Tree Expert Company ("Asplundh") contracted with the Gainesville Regional Utilities (the "GRU") of Gainesville, Florida, to dig ditches and lay underground cable. The contract was to last three years, and was to expire on October 1996.

In November of 1995, Asplundh hired Robert Lewis as a laborer. Lewis was assigned to a three-person crew that worked in the field, digging ditches and laying cable.

On April 1, 1996, as Lewis and the other two members of his crew were laying cable, Pete Evans visited their work site. Evans is an employee of GRU. He is not, nor has he ever been, an employee of Asplundh. Evans' job for GRU is to visit Asplundh work sites, observe the crews and inspect the work.

Lewis claims that when Evans visited his work site on April 1, Evans made offensive racial jokes and even fashioned a noose from a piece of rope and placed it on Lewis' neck. Evans denies this claim.

Later that day, Lewis complained to the Asplundh general foreman, Larry Mattingly, who arranged a meeting between Evans and Lewis. At the meeting, Evans apologized for any offensive conduct, and thereafter, Lewis cannot recall any recurring harassment when Evans would visit his work site.

Beginning in May 1996, the contract work began winding down, and GRU started reducing the amount of work assigned to Asplundh. Asplundh, in turn, began reducing its crews. Lewis was terminated in the second round of lay-offs. In October, all the rest of the Gainesville crews were laid off.

Lewis contacted the Equal Economic Opportunity Commission (the "Commission" or the "EEOC") to pursue a complaint against GRU for Evans' actions. After providing the EEOC investigator, Deborah West, with a narrative of events, she advised him that his narrative failed to allege an actionable claim against Asplundh. Lewis then submitted a revised statement.

In August of 1996, Lewis filed his charge of discrimination, alleging disparate pay, racial harassment and retaliation. The charge specifically stated that Lewis was subjected to racial harassment "from Pete Evens (sic), GRU Inspector." Additionally, the charge alleged that Lewis was "subjected to different terms and conditions of employment than my White co-workers (Blacks were paid lower than Whites and denied pay increases)." Lewis acknowledged in the charge that he was informed that his lay-off was due to a "lack of work." He further asserted that "no reason was given for Evens' (sic) harassment or the different terms and conditions of employment [pay disparity]."

The EEOC, through Investigator West, commenced an investigation of the allegations. This investigation continued for thirty-two months. Throughout the investigation, which focused on the disparate pay issue, Asplundh cooperated with the EEOC.

On March 31, 1999, the Commission issued a "Letter of Determination" finding "reasonable cause to believe the charge is true" on the harassment and retaliation allegations. No additional facts constituting harassment or retaliation were cited; nor did the Commission find any cause to believe that there was any discrimination by Asplundh in pay.

On April 7, 1999, West sent a document titled "Conciliation Agreement" to Asplundh's General Counsel, Phillip Tatoian, in Philadelphia, Pennsylvania, requiring a response by April 23. This deadline provided 12 business days within which Asplundh was required to respond regarding the Gainesville, Florida incident. The proposal sought, inter alia, both reinstatement and front pay (despite the termination of the project on which Lewis had worked and the closure of the Gainesville office in 1996). It would also have required Asplundh to provide nationwide notice to its employees of Lewis' allegations and to conduct, within ninety days, nationwide anti-discrimination training of all its management and hourly employees. The proposal did not identify the EEOC's theory of Asplundh's liability for GRU employee Evan's alleged racial harassment of Lewis.

General Counsel Tatoian promptly retained a local Gainesville, Florida law firm to investigate the Florida incident and Asplundh's potential liability and respond to the EEOC. On April 28, 1999, Peter Sampo, a partner in that firm, forwarded by facsimile the following correspondence to EEOC Investigator West:

The firm has been retained to represent the Respondent in the above-referenced matter. Your letter to General Counsel, Phillip Tatoian, dated April 7, 1999 and enclosing a proposed Conciliation Agreement has been forwarded to me for response. In order for me to provide informed advice to my client about this issue, I would like to arrange a phone call with you to discuss this case and attempt to understand the Commission's basis for its determination. Therefore, I ask that you extend the time for responding to the proposed Conciliation Agreement until we have had an opportunity to review this matter and you and I have had an opportunity to discuss the issues.

The EEOC did not respond to Sampo's letter that day or even acknowledge having received it. Instead, the next day, on April 29, 1999, the EEOC sent another letter to Tatoian in Philadelphia, declaring that "the Commission has not received ... a reply to the conciliation proposal," that "efforts to conciliate this charge ... were unsuccessful," and that "further conciliation efforts would be futile or non-productive."

Tatoian notified Sampo of this letter. Sampo attempted to contact West by telephone, but was unable to reach her, leaving her a message. On May 10, 1999, eleven days after receipt of Sampo's letter, West left a message on Sampo's office voice mail stating that the "case was out of [her] hands" and that Sampo should "contact the Regional Attorney." Two days later, on May 12, 1999, the EEOC filed this lawsuit.

The district court dismissed the lawsuit and awarded costs and fees to Asplundh, holding that the EEOC had failed to meet its statutory duty to engage in good faith conciliation.¹ We review these sanctions for abuse of discretion. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

II.

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(b) provides in pertinent part:

If after investigation, the Commission determines there is reasonable cause to believe that the charge [of discrimination] is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion.

To satisfy the statutory requirement of conciliation, the EEOC must (1) outline to the employer the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981). In evaluating whether the EEOC has adequately fulfilled this statutory requirement, "the fundamental question is the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." Id.

The EEOC asserts that the far-reaching proposal it sent to Asplundh, coupled with a "request" to respond within twelve business days, followed by a refusal to confer with Asplundh's counsel whose response, though prompt, fell beyond the arbitrary deadline set by the EEOC, constituted a bona fide effort to conciliate. The district court disagreed, holding that the EEOC acted in a "grossly arbitrary manner" and "engage[d] in unreasonable conduct in failing to fulfill its statutory requirement to conciliate the matter."

We agree. In this case, the EEOC conducted an investigation of Lewis' allegations for almost three years before issuing its Letter of Determination, finding cause to believe that Asplundh had violated Title VII. During this extended period of time, Asplundh did not apprehend that this local incident, not involving its employee, would result in charges, so it did not retain local Gainesville counsel to investigate the allegations.

Then, in a flurry of activity, the EEOC issued a Letter of Determination, followed one week later by a proposed, nation-wide Conciliation Agreement, which provided twelve business days for Asplundh's General Counsel in Philadelphia to accept the agreement, submit a counter proposal to the EEOC or inform the EEOC that no agreement would be entered into. In neither of these communications did the EEOC...