Equal Emp't Opportunity Comm'n v. Bass Pro Outdoor World, LLC

• Decision Date: 04 March 2014
• Docket Number: Case No. 4:11–CV–3425.
• Citation: 1 F.Supp.3d 647
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BASS PRO OUTDOOR WORLD, LLC, and Tracker Marine, LLC, Defendants.
• Court: U.S. District Court — Southern District of Texas

1 F.Supp.3d 647

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
BASS PRO OUTDOOR WORLD, LLC, and Tracker Marine, LLC, Defendants.

Case No. 4:11–CV–3425.

United States District Court,
S.D. Texas,
Houston Division.

Signed March 4, 2014.

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Connie Kay Wilhite, Timothy M. Bowne, Rodolfo Lucio Sustaita, EEOC, Houston, TX, Gregory T. Juge, U.S. EEOC, New Orleans, LA, Konrad Batog, Robert D. Rose, US EEOC, New York, NY,

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Tanya L. Goldman, U.S. EEOC, Baltimore, MD, for Plaintiff.

Michael W. Johnston, Carolyn Cain Burch, Samuel M. Matchett, King Spalding LLP, Atlanta, GA, William Robert Burns, King and Spalding LLP, Houston, TX, for Defendants.

MEMORANDUM AND ORDER
KEITH P. ELLISON, District Judge.

Plaintiff Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) has brought suit against Defendants Bass Pro Outdoor World, LLC, and Tracker Marine, LLC (“Defendants” or “Bass Pro”), for violations of Title VII of the Civil Rights Act of 1964. The Commission has alleged that Defendants are guilty of pervasive discrimination against minority applicants and employees. It seeks significant monetary damages and comprehensive prospective relief. Two Motions are currently before this Court: Defendants' Motion for Summary Judgment (Doc. No. 119) and Plaintiff's Motion to Amend the Complaint (Doc. No. 135.) Most pressing is Defendants' Motion: Bass Pro asks the Court to dismiss the case on the grounds that the Commission has failed to engage in good-faith conciliation. (Doc. No. 119 at 1.) This is just the sort of motion that should make courts uneasy: armed with enormous discretion, the Court is asked, on what is now a cold record, to evaluate whether an independent agency undertook settlement talks in good faith. It is in these situations where we risk “aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)

Nevertheless, as the Court explained in its October Memorandum & Order, there is no doubt that, in this circuit and most others, it is the province and the duty of the judiciary to pass on the Commission's attempts to conciliate. ( See Doc. No. 149.) For the reasons set forth below, Defendants' Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. It is denied insofar as Defendants seek dismissal. However, because the Court believes the Commission prematurely terminated its efforts to conciliate the claims under § 706, the Court implements a thirty-day stay, and it dismisses any complainants who did not apply to work for Bass Pro until after the Commission issued its Letter of Determination. As for Plaintiff's Motion to Amend, that motion is GRANTED. Tracker Marine, LLC is DISMISSED WITHOUT PREJUDICE.

I. BACKGROUND

In deciding this Motion, it is necessary to take a close look at how the Commission and the Defendant interacted during the course of conciliation. As appears to be the norm, the parties “engaged in a vociferous letter-writing campaign” for more than six months. EEOC v. Bloomberg L.P. (Bloomberg II), 751 F.Supp.2d 628, 640–41 (S.D.N.Y.2010). They also met face-to-face. For reasons explained below, the Court looks separately at the Commission's attempt to conciliate its § 707 claim and its § 706 claims and thus discusses the facts relevant to each, in the course of its analysis. Still, a brief overview here at the outset should help to set the scene.

A. Factual Background

The EEOC issued a Commissioner's Charge on February 20, 2007, indicating that the commissioner “ha[d] reason to think” that Bass Pro “ha[d] since at least November 2005[ ] discriminated against African American applicants and employees on the basis of their race at Bass Pro Shops' retail stores and facilities nationwide.” (Doc. No. 119–4 at 2.) The EEOC

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issued an Amended Commissioner's Charge on May 5, 2008, adding that female, Asian, and Hispanic applicants and employees had also been subject to discriminatory hiring practices. (Doc. No. 119–5 at 2–4.) The Amended Charge outlined ten distinct allegations, including “failing to recruit and/or hire” African American, female, Asian, and Hispanic applicants, “[u]tilizing recruiting, hiring, and promoting policies and/or practices which adversely impact African American or black employee or applicants' ability to obtain positions in its retail stores,” and “[h]arassing and retaliating against employees who have opposed discriminatory employment practices.” ( Id. at 2–3.)

The EEOC's investigation then commenced. Over the course of three years, the parties exchanged numerous letters, met at least three times, and Bass Pro responded to seven requests for production and produced over 230,000 pages of documents, (Doc. No. 119–6 at 3). The parties exchanged their first settlement proposals during the course of the investigation, but from the start, they were many million dollars apart. (Doc. No. 136–3 at 4–5.)

The Commission finally issued its Letter of Determination on April 29, 2010. (Doc. No. 119–11 at 2.) That letter meant in effect that the Commission believed it had unearthed good cause to believe the allegations made in the initial Charge (and Amended Charge) were true. In fact, that document listed more or less the same allegations as those contained in the Amended Commissioner's Charge. ( Id. at 2–4.)

The Commission contacted Bass Pro on May 5, 2010 to begin the conciliation process and set up an in-person meeting. (Doc. No. 119–14.) The Commission noted that it would “welcome [Bass Pro's] submission of a conciliation proposal prior to our scheduled meeting.” ( Id. at 2.) This is when the pace of the letter-writing campaign accelerated. The record reflects that, over the course of the next eight months, the parties exchanged a total of nineteen letters. They also met in Dallas on August 4, 2010. After months of discussion marked by Bass Pro asking for more and more information, the Commission consistently refusing to provide all that the employer was seeking, and settlement offers, at least monetary ones, that reflected a fundamental disagreement, the Commission decided on November 19, 2010 that conciliation had failed.

Even then, the parties continued to exchange a handful of letters, ostensibly resuming conciliation talks, but neither side seriously changed its position. The Commission once again asserted in April 2011 that it did not appear as though conciliation or settlement talks would be fruitful and informed Bass Pro that it was considering filing suit. (Doc. No. 120–9 at 2.)

B. Procedural Background

This suit was filed on September 21, 2011. (Doc. No. 1.) The original complaint, just nine pages long, alleged a “pattern or practice of unlawfully failing to hire Black and Hispanic applicants” and unlawful retaliation against individuals who opposed Bass Pro's practices. Id.

The Commission filed an Amended Complaint in January 2012, adding two related legal entities as defendants. (Doc. No. 23.) Defendants moved to dismiss and this Court granted in part and denied in part, explaining:

The Court concludes that the EEOC has failed to state a claim for a pattern or practice of discrimination. Likewise, the EEOC's retaliation claim cannot survive the Motion to Dismiss. The Court agrees with Defendants that the EEOC may not bring a pattern or practice

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claim pursuant to § 706. A 300–day limitations period applies to claims brought pursuant to § 706 or § 707; therefore, claims for failure to hire falling outside of that time period must be dismissed. The EEOC has adequately pleaded a record-keeping violation and that conditions precedent to the lawsuit have been met.

(Doc. No. 53 at 9; see also EEOC v. Bass Pro Outdoor World, LLC (Bass Pro I), 884 F.Supp.2d 499, 509 (S.D.Tex.2012).)

The Commission once again filed an amended complaint, one that ballooned from twelve pages to 247. ( See Doc. No. 61.) For the first time, it described its allegations in great detail, including descriptions of many of the individuals on whose behalf it was pressing claims. Defendants filed another motion to dismiss. One legal entity, Bass Pro, Inc., was dismissed in October 2012. (Doc. No. 95.) Then, in March 2013, the Court again granted in part and denied in part Defendants' Motion to Dismiss, with all but two retaliation claims surviving. (Doc. No. 99; see also EEOC v. Bass Pro Outdoor World, LLC (Bass Pro II), No. 4:11–CV–3425, 2013 WL 1124063 (S.D.Tex. Mar. 18, 2013).) The Court granted leave to amend, which the Commission timely did, filing a Third Amended Complaint in April 2013. (Doc. No. 104.)

The parties then both filed motions for summary judgment: the Defendant filed the Motion now before the Court, asking for dismissal for failure to conciliate (Doc. No. 119), and Plaintiff filed a Motion for Partial Summary Judgment, urging that the sufficiency of its attempt to conciliate is not subject to judicial review (Doc. No. 137.) The Court has already denied that motion. (Doc. No. 149; see also EEOC v. Bass Pro Outdoor World, LLC (Bass Pro III), No. 4:11–CV–3425, 2013 WL 5515345 (S.D.Tex. Oct. 2, 2013).) The Commission has also filed a Motion to Amend the Third Amended Complaint on the grounds that Tracker Marine Retail, LLC, and not Tracker Marine, LLC, is a proper defendant. (Doc. No. 135.)

The Court heard argument on Defendants' Motion for Summary Judgment and Plaintiff's Motion to Amend in November.

II. LEGAL FRAMEWORKA. Summary Judgment Standard

To grant summary judgment, the Court must find that the pleadings and evidence show that no genuine issue of material fact exists, and thus that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The party moving for summary judgment must demonstrate the absence of any genuine issue of material fact; however, the party need not negate the elements of the nonmovant's case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). If the moving party meets this burden,...