United States District Court, D. Alaska
ORDER RE MOTION FOR PARTIAL SUMMARY JUDGMENT
SHARON L. GLEASON, District Judge.
Before the Court at Docket 202 is Parker Drilling's Motion for Partial Summary Judgment as to EEOC's Claims. The EEOC opposed on February 17, 2015, and Parker Drilling replied on February 27, 2015. Also before the Court at Docket 204 is Parker Drilling's Motion for Judicial Notice. Oral argument was not requested on either motion and was not necessary to the Court's decision. For the reasons stated below, Parker Drilling's motion for partial summary judgment will be denied. Parker Drilling's motion for judicial notice will be granted in part and denied in part.
In January 2010 Plaintiff-Intervenor Kevin McDowell sought employment with Parker Drilling's Alaska operations. Mr. McDowell is blind in his left eye. Parker Drilling extended a conditional offer of employment as a Tool Pusher to Mr. McDowell, but withdrew that offer after it received the results of a post-offer medical evaluation that found him unfit for the position based on his visual impairment. Mr. McDowell filed a charge of discrimination with the EEOC in February 2010. In June 2010 Mr. McDowell and Parker Drilling participated in a mediated settlement conference that did not include the EEOC and did not resolve Mr. McDowell's claims.
Between April 2010 and September 2012, the EEOC investigated Mr. McDowell's charge. On September 14, 2012, the EEOC issued a determination concluding that there were sufficient facts to substantiate Mr. McDowell's charge. The EEOC and Parker Drilling then exchanged conciliation correspondence in an effort to settle Mr. McDowell's charge, the details of which are recounted in the discussion below. On April 12, 2013, the EEOC informed Parker Drilling that it had "determined that efforts to conciliate... have been unsuccessful." This suit was filed by the EEOC on September 18, 2013.
This Court has jurisdiction over this matter under 28 U.S.C. § 1331 because it is a civil action arising under federal law.
II. Legal Standards
Parker Drilling's primary motion is styled as a motion for partial summary judgment. However, the Ninth Circuit has held that in civil suits to enforce federal discrimination laws, "[g]enuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit by the EEOC." A recent, comprehensive analysis by the United States District Court for the District of Hawai'i examined whether the issue of adequate conciliation is a jurisdictional question or a question related to the merits of an EEOC action. That district court concluded that the issue is one of subject matter jurisdiction. The Court agrees with that analysis, adopts it, and accordingly treats Parker Drilling's motion as a subject matter jurisdictional challenge under Federal Rule of Civil Procedure ("FRCP") 12(b)(1).
FRCP 12(b)(1) allows a party to seek dismissal of a complaint for lack of subject matter jurisdiction. Parker Drilling maintains that the EEOC's claims against it should be dismissed due to the EEOC's failure to meet its prerequisite obligation to adequately conciliate prior to filing suit under 42 U.S.C. § 2000e-5b.
42 U.S.C. § 2000e-5(b) provides in relevant part:
Whenever a charge is filed by or on behalf of a person claiming to be aggrieved... the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer... (hereinafter referred to as the "respondent") within ten days, and shall make an investigation thereof.... 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.
Section 2000e-5(f)(1) provides in relevant part:
If within thirty days after a charge is filed with the Commission... the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge.
Several circuit courts have interpreted these provisions to create a "failure-to-conciliate defense." Within these courts, some circuits evaluate conciliation under a "searching three-part inquiry" while others require only "a minimal level of good faith" in conciliation efforts prior to the filing of suit. In contrast to these circuits, the Seventh Circuit has held that the EEOC's efforts to conciliate are not subject to judicial review, a holding currently under review by the Supreme Court. The Ninth Circuit has not addressed this aspect of § 2000e-5, and the district courts in this circuit have applied various approaches.
The split between the circuits and the Supreme Court's grant of certiorari demonstrate that reasonable minds have reached different conclusions on the legal import of § 2000e-5's conciliation provisions. But this Court need not determine the contours of § 2000e-5's requirements if the EEOC's conciliation attempts with Parker Drilling in this case meet the most rigorous of the approaches applied by any of the circuits that have addressed the issue. Accordingly, the Court examines the EEOC's efforts in this case under that approach.
The more rigorous approach to evaluating the adequacy of the EEOC's efforts at conciliation pursuant to § 2000e-5 applies a three-part inquiry. The Eleventh Circuit has concisely set out that approach as follows:
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. In evaluating whether the EEOC has adequately fulfilled this statutory requirement, the fundamental ...