Equal Emp't Opportunity Comm'n v. Ruby Tuesday, Inc.

• Decision Date: 22 January 2013
• Docket Number: Civil Action No. 2:09–cv–01330.
• Citation: 919 F.Supp.2d 587
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. RUBY TUESDAY, INC., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

919 F.Supp.2d 587

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.RUBY TUESDAY, INC., Defendant.

Civil Action No. 2:09–cv–01330.

United States District Court,

W.D. Pennsylvania.

Jan. 22, 2013.

Ronald L. Phillips, U.S. Equal Employment Opportunity Commission, Baltimore, MD, Deborah A. Kane, Lisa H. Hernandez, United States Equal Employment Opportunity Commission, Pittsburgh, PA, for Plaintiff.

Christopher S. Mann, Cornelius R. Heusel, Jennifer F. Kogos, Jones, Walker, Waechter, Poitevent, Carrere & Denegre L.L.P., New Orleans, LA, Melissa L. Evans, Douglas G. Smith, Jackson Lewis LLP, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

MARK R. HORNAK, District Judge.

Pending before the Court are the Defendant Ruby Tuesday's Motions to Dismiss, Fed.R.Civ.P. 12(b)(6) and for Summary Judgment, Fed.R.Civ.P. 56. (ECF Nos. 79, 86). The Motion to Dismiss is premised on the assertion that even when read in the broadest, most “plaintiff friendly” terms, the Plaintiff Equal Employment Opportunity Commission's (“EEOC”) Complaint is long on legal conclusions and summary assertions and short on the level of factual predicate demanded by the Supreme Court's holdings in Twombly and Iqbal¹, and the case should therefore be dismissed for a failure to state a claim.

The Motion for Summary Judgment contends that the efforts of the EEOC in the conciliation process required by Congress in Section 7(b) of the Age Discrimination in Employment Act, (“ADEA”), 29 U.S.C. § 626(b), fell so far short of the mark, no matter how deferential the standard applied by this Court, that it was effectively not conciliation at all.

The EEOC responds by arguing that the Complaint fulfills the pleading minimums set forth in Fed.R.Civ.P. 8 even when tested against the currently-applicable measure, that Defendant's Motion to Dismiss comes woefully late, and that as to its conciliation obligations, it has done its statutory duty. The EEOC further argues that the relief requested by the Defendant in each Motion—dismissal of the case as to the former, and judgment in its favor as to the latter—is wholly disproportionate to any pleading/conciliation misstep on the EEOC's part, and that the proper course, if there is merit to either of the Motions, is to allow for the amendment of the Complaint, and to allow for conciliation now if the Court concludes that it has not yet happened.

For the reasons that follow, the Motion to Dismiss is denied without prejudice, but the Court will order that the EEOC provide a more definite statement. The Motion for Summary Judgment is denied without prejudice, but the Court shall order that fact discovery in this case be paused, and the statutory conciliation process shall now occur over a period of forty-five (45) days, during which the EEOC shall engage in the conciliation of the claims asserted in this civil action under the general supervision of the Court. The Defendant's request for attorneys' fees and costs is denied without prejudice. ²

I. BACKGROUND

This case presents the paradigm example of parties to litigation too often speaking past one another with seemingly exquisite precision. Since the issues before the Court are narrow, and relate to very specific matters, the Court will not endeavor to describe every twist and turn in this civil action's nearly three (3) year presence on this Court's docket.

This case began with a Charge of Discrimination filed on December 28, 2008 by a single employee at the Defendant's facility in Altoona, Pennsylvania, charging unlawful discrimination based on sex and retaliation under Title VII of Civil Rights Act of 1964, later amended on January 20, 2009 to allege age discrimination in violation of the ADEA, 29 U.S.C. § 621 et seq. (ECF No. 101 at 7–8). Thereafter, the EEOC investigated as authorized and directed by law, and requested and received a significant amount of information from the Defendant regarding its workforce and hiring practices. (ECF No. 101 at 8–9). The Defendant generally denied engaging any unlawful conduct, and affirmed its belief that it at all times complied with its legal duties to provide for a discrimination-free workplace.

This process played out over the next few months, and ended in August 2009, when the EEOC issued a written Determination to Defendant, dated August 25, 2009, concluding as an administrative matter that it had found reasonable cause to believe that the Defendant had unlawfully discriminated against the Charging Party based on sex, and also that it had engaged in a pattern and practice of discrimination based on age in six (6) of its restaurants in the Western Pennsylvania vicinity. (ECF No. 87–3 at 15, 101 at 10). The EEOC advised the Defendant that it would promptly seek to conciliate the dispute with the Defendant, and it forwarded to Defendant a proposed conciliation agreement, (ECF No. 87–3 at 17), setting forth the points that the EEOC required as part of any conciliated resolution of the claims as advanced by the EEOC. It was allegedly received by Defendant on or about September 2, 2009.

That Determination and proposed conciliation agreement provided the Defendant with thirteen (13) days from the date it was prepared and dated by the EEOC (and, according to Defendant, seven (7) days from when it was received) to respond. The Defendant responded on September 3, 2009, (ECF No. 87–3 at 24), by asking for an additional thirty (30) days to respond to the EEOC's Determination and conciliation position.³ The EEOC next respondedto Defendant on September 9, 2009 by denying the request for that thirty (30) day extension, and requiring Defendant to provide the EEOC with its “best offer” by “2:30pm September 18, 2009.” It also specified for the first time that Defendant must agree to pay a total of $6,458,375 to resolve the monetary provisions of the proposed conciliation agreement, and as to an unspecified number of potential claimants. (ECF No. 87–3 at 25).

This gave the Defendant about 9 or 10 days (from the date of the EEOC's response letter) to respond to the first EEOC demand that was specific as to the amount of money the Defendant would be expected to pay as part of a resolution of the matter. Defendant responded on September 15, 2009, (ECF No. 87–3 at 26), with a counter offer as to the Charging Party's claims, and an expressed willingness to engage in further conciliation discussions as to the broader claims pressed by the EEOC.⁴ Thereafter, on September 21, 2009, the EEOC issued a Notice of a Failure of Conciliation. (ECF No. 87–3 at 33). This lawsuit was filed on September 30, 2009, and Defendant filed an answer under Fed.R.Civ.P. 12(a) on January 27, 2010. (ECF No. 18).

Over the next many hundreds of days, the parties have engaged in fact discovery in this case, in fits and starts. At one point, the parties agreed to a stay of the action to allow for discussions, inter partes, regarding a possible resolution of this dispute, but those efforts were apparently unavailing. (Order dated August 23, 2010, ECF No. 23). Thereafter, the EEOC sought, and the Defendant opposed, a bifurcation of discovery, seeking to focus first only on liability issues, and remedial matters thereafter. (ECF Nos. 32, 35). That motion was denied by this Court. (Order dated December 27, 2011, ECF No. 41). The Court ruled on several intervening Motions to Compel and for Protective Orders, (ECF Nos. 63, 65), and since then, this Court has held numerous status conferences, and has issued an opinion granting in part the parties joint request for an extension of discovery.⁵ (ECF Nos. 71, 72).

II. MOTION TO DISMISS

The heart of the Defendant's argument to dismiss the case is that the EEOC's Complaint is a paradigm example of the form of conclusory pleading that the Supreme Court in Twombly and Iqbal held to be insufficient, contending that it is rife with conclusory statements of statutory liability without any plausible factual support for those conclusions and allegations. The EEOC has responded by noting that the Motion comes years, literally, after when such a motion was due to be filed under Fed.R.Civ.P. 12(b), that much water has passed under the discovery bridge, so to speak, and that to dismiss the case now, on those grounds, ignores the reality of the development of the factual record that has occurred to date.

On these points, the parties are each correct. The Defendant answered to Complaint on January 27, 2010. That was thirty-six (36) months ago. Since then, the parties have taken at least forty (40) depositions, including those noticed by the Defendant of EEOC representatives. Much discovery work has occurred, and the Defendant has been provided with a series of opportunities to learn from the witnesses it has identified what it is that those individuals know (or do not know) about the claims in this case.

The rub is that those facts may, or may not, be the foundation upon which the EEOC, as Plaintiff, claims liability will be found at trial. The EEOC avers that the Defendant will owe very substantial monetary relief of at least the amount demanded at the conciliation stage, along with being ordered by this Court to take swift and strong remedial action to end unlawful practices as alleged by the EEOC. The EEOC has also advised the Court and the Defendant that it had a statistical basis for concluding that the Defendant violated the ADEA by basing employment decisions on age as a matter of “standing operating procedure” before it brought this lawsuit, (ECF No. 87–3, at 25), which is the very type of support commonly underlying the heart of an ADEA pattern and practice case. See Scharp v. Legacy Health Sys., No. 06–1213–MO, 2007 WL 756716, at *5 (D.Ore. Mar. 8, 2007). The EEOC nonetheless has declined to provide the Defendant with its statistical analysis, claiming that a privilege shields it from having to do so. Further, the EEOC contends that what is pled in the Complaint sufficiently puts the Defendant on notice of the claims...