Opinion
CIVIL ACTION NO. H-18-3407
2020-04-27
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WAL-MART STORES TEXAS, LLC, Defendant.
Lloyd Stefanus Van Oostenrijk, U.S. Equal Employment Opportunity Commission Houston District Office, Houston, TX, for Plaintiff. Nancy Louise Waters, Geary Porter et al., Addison, TX, for Defendant.
Lloyd Stefanus Van Oostenrijk, U.S. Equal Employment Opportunity Commission Houston District Office, Houston, TX, for Plaintiff.
Nancy Louise Waters, Geary Porter et al., Addison, TX, for Defendant.
MEMORANDUM OPINION AND ORDER
SIM LAKE, SENIOR UNITED STATES DISTRICT JUDGE
The Equal Employment Opportunity Commission ("EEOC" or "Plaintiff") filed this action against Wal-Mart Stores Texas, LLC ("Defendant") alleging disability discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA"). Pending before the court is Defendant's Opposed Motion to Stay and Compel Conciliation ("Defendant's Motion to Stay") (Docket Entry No. 29). For the reasons explained below, Defendant's Motion to Stay will be denied.
I. Factual and Procedural Background
Plaintiff brings this action on behalf of Jesse Landry, a congenital amputee who lacks a right hand and forearm. Defendant interviewed Landry for a stocker position on July 14, 2018. Plaintiff alleges that the manager conducting the interview informed Landry that she could not do the job because of her disability and ended the interview. Landry filed a charge of discrimination with Plaintiff in October of 2015. The EEOC investigated the charge and on May 14, 2018, sent Defendant a letter that concluded there was reasonable cause to believe Defendant had violated the law. The EEOC alleges it attempted to settle the case through conciliation, but Defendant alleges that the EEOC failed to provide "any specific allegation identifying Landry's disability" and "conciliate[ ] in good faith." In September of 2018 the EEOC determined that conciliation had failed, and it filed this action on September 24, 2018.
Complaint, Docket Entry No. 1, pp. 3-4 ¶ 13. All page numbers for docket entries in the record refer to the pagination inserted at the top of the page by the court's electronic filing system, CM/ECF.
Id. at 4 ¶ 16.
Id.
Charge of Discrimination, Exhibit 1 to Plaintiff Equal Employment Opportunity Commission's Supplemental Briefing Regarding Defendant's Opposed Motion to Stay and Compel Conciliation ("Plaintiff's Supplement"), Docket Entry No. 39-2, p. 2.
Determination Letter, Exhibit 2 to Plaintiff's Supplement, Docket Entry No. 39-3, pp. 2-3.
Plaintiff Equal Employment Opportunity Commission's Response to Defendant's Opposed Motion to Stay and Compel Conciliation ("Plaintiff's Response"), Docket Entry No. 33, p. 5; Defendant's Motion to Stay, Docket Entry No. 29, p. 4, p. 14 ¶ 33.
Complaint, Docket Entry No. 1, p. 3 ¶ 10.
Defendant filed its Motion to Stay on November 14, 2019, contending that the EEOC did not fulfill its duty to conciliate before filing the action. The EEOC filed its response on December 5, 2019, and Defendant replied on December 12, 2019. On December 17, 2019, the court resolved a dispute as to the scope of discovery regarding the conciliation process permitted under Federal Rule of Civil Procedure 26 and Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 135 S. Ct. 1645, 191 L.Ed.2d 607 (2015). The court granted in part and denied in part Plaintiff EEOC's Opposed Motion to Quash and for Protective Order from Defendant's Written Discovery Concerning Conciliation (Docket Entry No. 25) as to some of Defendant's discovery requests, and ordered the parties to supplement their briefing on Defendant's Motion to Stay after completing additional discovery. Defendant and Plaintiff filed supplemental briefs on January 24, 2020. Defendant filed a supplemental response brief on January 27, 2020.
Defendant's Motion to Stay, Docket Entry No. 29, pp. 10-11.
Plaintiff's Response, Docket Entry No. 33.
Defendant's Reply to Plaintiff's Response to Opposed Motion to Stay and Compel Conciliation ("Defendant's Reply"), Docket Entry No. 34.
Memorandum Opinion and Order, Docket Entry No. 36.
Id. at 10.
Defendant's Supplemental Brief in Support of Its Opposed Motion to Stay and Compel Conciliation ("Defendant's Supplement"), Docket Entry No. 38; Plaintiff's Supplement, Docket Entry No. 39.
Defendant's Response to Plaintiff's Supplemental Briefing Regarding Defendant's Motion to Stay and Compel Conciliation ("Defendant's Supplemental Reply"), Docket Entry No. 40.
II. Law and Analysis
Title VII of the Civil Rights Act, which the ADA incorporates by reference, allows the EEOC to sue employers on behalf of individuals who have been discriminated against. 29 U.S.C. § 794a ; 42 U.S.C. § 2000e-5(b). As a mandatory precondition to filing a lawsuit, the EEOC must first attempt to resolve the issue through "informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b) ; Mach Mining, 135 S. Ct. at 1651. In Mach Mining the Court held that fulfillment of this precondition is subject to limited judicial review. 135 S. Ct. at 1652-53. To fulfill the mandatory precondition for conciliation under § 2000e-5 (b) "the EEOC must inform the employer about the specific allegation," describing "both what the employer has done and which employees (or what class of employees) have suffered as a result." Mach Mining, 135 S. Ct. at 1655-56. The EEOC must then "try to engage the employer in some form of discussion ..., so as to give the employer an opportunity to remedy the allegedly discriminatory practice." Id. at 1656. Defendant contends that the EEOC has not met these requirements because it (1) conducted conciliation in bad faith and (2) failed to disclose Landry's disability.
Defendant's Motion to Stay, Docket Entry No. 29, p. 14 ¶ 33, p. 15 ¶ 35.
A. Standard of Review
"The proponent of a stay bears the burden of establishing its need." Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 1651, 137 L.Ed.2d 945 (1997). The EEOC may show that it performed its obligations as to conciliation with evidence such as a sworn affidavit to that effect. Mach Mining, 135 S. Ct. at 1656. "If, however, the employer provides credible evidence of its own ... indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the fact-finding necessary to decide that limited dispute." Id.
B. Conciliation in Good Faith
The EEOC must "try to engage the employer in some form of discussion." Mach Mining, 135 S. Ct. at 1656. But Mach Mining expressly rejected the argument that a conciliation requirement imposes "any reciprocal duty to negotiate in good faith." Id. at 1648. The statute grants the EEOC broad discretion "over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the contents of its demands for relief." Id. at 1654. "And the EEOC alone decides whether in the end to make an agreement or resort to litigation: The Commission may sue whenever ‘unable to secure’ terms ‘acceptable to the Commission.’ " Id. (citing 42 U.S.C. § 2000e-5(f) (1) ). Combined with the statute's non-disclosure provision, this precludes the court's review of conciliation discussions beyond whether they actually occurred. See id. at 1656.
Defendant does not contend that no discussions occurred. Defendant argues that the conciliation discussions were insufficient because the information the EEOC made available meant there was no opportunity to resolve Landry's claim without litigation. But Mach Mining stated that the EEOC has no obligation "to lay all its cards on the table" during conciliation. 135 S. Ct. at 1654. Title VII prohibits the court's consideration of the contents of the parties' conciliation discussions because "[n]othing said or done during and as part of such informal endeavors may be ... used as evidence in a subsequent proceeding without the written consent of the persons concerned." 42 U.S.C. § 2000e-5(b). Accordingly, Defendant's objection that conciliation discussions were in bad faith fails as a matter of law. Accordingly, the court will deny Defendant's request for a hearing to submit evidence that would support this allegation for in camera review.
Id.
Id. at 14.
See Defendant's Motion to Stay, Docket Entry No. 29, p. 5 n.1, p. 7 nn.6-7, p. 9 n.8.
C. Notice of the Claim
The EEOC must notify the Defendant of the nature of the "specific allegation" against it as part of pre-litigation conciliation. Mach Mining, 135 S. Ct. at 1655-56. "Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result." Id. at 1656. As the court concluded in its previous Memorandum Order and Opinion, an employer must have notice of the employee's disability in order to understand an ADA claim against it. See also EEOC v. Amsted Rail Co., Inc., 169 F. Supp. 3d 877, 885 (S.D. Ill. 2016) (finding that the EEOC had fulfilled its duty of notification because the EEOC had specifically named the complainant's disability in some communications). But there is no requirement that the EEOC lay out a detailed factual basis underlying the claim. United States EEOC v. MJC, Inc., 306 F. Supp. 3d 1204, 1217 (D. Haw. 2018).
Memorandum Opinion and Order, Docket Entry No. 36.
Defendant argues that the EEOC did not satisfy the conciliation requirement because it never expressly informed Defendant of Landry's disability. The EEOC contends that the requirement was satisfied because its investigator orally told Defendant about Landry's disability several times. The EEOC also argues that Landry's interviewer would have plainly seen the disability and that its identification of the interview as the basis of the claim sufficed as notice of the disability.
Plaintiff's Motion to Stay, Docket Entry No. 29, pp. 13-14; Defendant's Supplement, Docket Entry No. 38, pp. 2-3.
Plaintiff's Supplement, Docket Entry No. 39, p. 4.
Id. at 6.
The parties dispute two factual issues relevant to these contentions: (1) whether Landry was actually interviewed by Walmart, where her interviewer would have seen her disability, and (2) whether the EEOC investigator verbally told Defendant's attorney that Landry was a congenital amputee. The court will review the EEOC's evidence and whether Defendant has presented credible evidence that would contradict it. The court's review of any statements made during conciliation is limited to this narrow factual dispute as to Defendant's notice.
1. Employment Application and Interview
Defendant's electronic records show Landry applied and completed an online assessment on July 8, 2015, but does not contain a record of an interview. An employee of Walmart's stated in his deposition that hourly supervisors used a printed packet that included the interviewee's application and several "other documents" for the interview. An internal document describing Defendant's hiring process states that it is the hourly supervisor's responsibility to ensure that several documents are completed, including a signed application. During discovery Defendant provided the EEOC with documents found inside a physical folder in its store. The folder contained Landry's employment application, availability worksheet, and prescreening answers. It also contained a standard I-9 form and a set of interview worksheets that are used in an hourly position interview.
Career Preference Data, Exhibit 4-A to Plaintiff's Supplement, Docket Entry No. 39-5, p. 8.
Oral Deposition of Larry Gulick, Exhibit 9 to Plaintiff's Supplement, Docket Entry No. 39-10, p. 3 (p. 35 lines 12-17; p. 36 lines 7-23).
CPG 1201 - Hiring Process, Exhibit 5 to Plaintiff's Supplement, Docket Entry No. 39-6, p. 3.
Email to Sharon McElroy, Exhibit 4 to Plaintiff's Supplement, Docket Entry No. 39-5, p. 4; Interview Packet, Exhibit 4-C to Plaintiff's Supplement, Docket Entry No. 39-5, pp. 16-27.
Interview Packet, Exhibit 4-C to Plaintiff's Supplement, Docket Entry No. 39-5, pp. 16-27.
Id.
The interview worksheet contains questions for the interviewer to ask and instructs the interviewer to rate the answers. Each question appears to have received a rating of "exceeds expectation" marked in pen. The employment application, dated July 8, 2015, appears to have been signed by Landry in person.
Id. at 22-27.
Id.
Interview Packet, Exhibit 4-C to Plaintiff's Supplement, Docket Entry No. 39-5, p. 17.
2. The EEOC's Determination Letter
A Determination Letter sent by the EEOC to Defendant on May 14, 2018, states that in July of 2015 Landry "was interviewed, but that the person conducting the interview mentioned [Landry's] disability and stated [a] belief that the Charging Party would not be able to perform the job" and therefore "she would not be considered for the position." The position in question was as a stocker. The Letter states that Landry was told she would be considered for other positions but was never contacted about such a position. The letter then describes the EEOC's investigation, which identified two of Defendant's employees who had conducted interviews and said they would not have hired Landry as a stocker because of her disability. Defendant had provided documentation that confirmed that Landry had applied. The EEOC therefore found reasonable cause to believe Landry "was denied employment in violation of the ADA." The Determination Letter does not specifically describe Landry's disability.
Determination Letter, Exhibit 2 to Plaintiff's Supplement, Docket Entry No. 39-3, pp. 2-3.
Id. at 2.
Id. at 2.
Id.
Id.
Id. at 3.
3. Communications as to the Disability
The EEOC admits that it never specified Landry's disability in any written communication with Defendant before filing this action. The EEOC also admits that Defendant's counsel sent several letters in June and July of 2018 asking for information about the nature of Landry's disability.
Plaintiff's Supplemental Responses to the Defendant's First Requests for Admissions and Second Set of Interrogatories, Exhibit 1 to Defendant's Supplement, Docket Entry No. 38-1, p. 6.
Id. at 4-5.
The parties have submitted contradictory affidavits as to whether the EEOC orally informed Defendant of Landry's disability. The EEOC's investigator, Sharon McElroy, swears: "During the course of this investigation, counsel for Walmart, David Dixon, repeatedly asked me about the nature of Ms. Landry's disability. Each time, I would tell him that [the] Charging Party was a congenital amputee." Dixon declares: "To the contrary, the EEOC never identified or described the nature of Landry's disability as a congenital amputee to me at any time during the investigation and prior to release of the Determination against Walmart."
Affidavit of Sharon D. McElroy, Exhibit 6 to Plaintiff's Supplement, Docket Entry 39-7, p. 6 ¶ 14.
Declaration of David Dixon, Exhibit 3 to Defendant's Supplement, Docket Entry No. 38-3, p. 5 ¶ 11.
4. Analysis
To give notice of a claim the EEOC must inform the employer about "what the employer has done" and "which employees (or what class of employees) have suffered as a result." Mach Mining, 135 S. Ct. at 1656. In an ADA case the disability of the employee or class of employees is necessary to understand the claim. The parties disagree whether this means that the EEOC must expressly inform a defendant of the disability or if notice of other facts about the claim may suffice.
Defendant argues that express notification is required, relying on EEOC v. Amsted Rail Co., 169 F. Supp. 3d 877. The Amsted court was "given pause ... because the relevant documents" were "notably devoid of specifics." Id. at 885. In particular, the complainant's charge did not identify the disability, and the EEOC's letter of determination alleged discrimination on the basis of disability without identifying a particular incident of discrimination related to that disability. Id. But the court nonetheless concluded that "despite the imprecision and ambiguity of [the] charge and the Letter of Discrimination ... the information received by Amsted, when viewed as a whole, was sufficient [to] inform it of the specific allegations." Id. Amsted teaches not that the EEOC must formally name the disability but rather that the court should consider the evidence "when viewed as a whole" to determine whether the employer had sufficient notice of the alleged disability to understand the claim. See id.
Defendant's Motion to Stay, Docket Entry No. 29, p. 12; Defendant's Supplement, Docket Entry No. 38, p. 7.
The EEOC typically discharges its duty to give notice of a claim involving a disability by identifying a specific incident of alleged disability discrimination. See MJC, Inc., 306 F. Supp. 3d at 1217. If the disability at issue is ascertainable, notice of the incident suffices to give the employer notice of the disability. Mach Mining and § 2000e-5(b) do not require that the employer's notice of the disability come expressly or formally from the EEOC. Notice of an incident of discrimination that the employer may then investigate to determine the complainant's disability may suffice.
The EEOC's Letter of Determination specifies an alleged incident of discrimination: In July of 2015 Landry was interviewed for a job with Defendant but told she would not be considered for the position because of her apparent disability. This sufficed to notify Defendant of the basis of the claim. See MJC, Inc., 306 F. Supp. 3d at 1217. The EEOC did not need to expressly identify Landry's disability because Landry's missing right hand and forearm would have been apparent to the interviewer whose conduct is the basis of the complaint against Defendant.
Defendant argues the EEOC may not rely on the interview for notice of the disability because (1) the interview did not occur, and (2) it could not use this information to determine Landry's disability because of uncertainty as to the precise date of the interview. Defendant does not point to evidence that would contradict the EEOC's evidence that the interview occurred, and in particular the signed, physical application and interview packet. Defendant relies on its electronic application records, which do not show that an interview occurred, but neither do they show that an interview did not occur. Defendant's burden is to provide credible evidence that contradicts the EEOC's evidence. Defendant has not met this burden because it does not explain how these electronic records are inconsistent with the occurrence of an interview. Landry's Charge of Discrimination specifies the store where she was interviewed, and the Letter of Determination specified that she applied in "July 2015" and interviewed "later that month." Despite uncertainty as to the precise date of the interview, the court is persuaded that this information was sufficient for Defendant to investigate the claim against it and therefore the information gave Defendant notice of Landry's disability.
Defendant's Supplement, Docket Entry No. 38, pp. 3-4.
Charge of Discrimination, Exhibit 1 to Plaintiff's Supplement, Docket Entry No. 39-2, p. 2; Determination Letter, Exhibit 2 to Plaintiff's Supplement, Docket Entry No. 39-3, p. 2.
Having concluded that the above evidence establishes that the EEOC sufficiently notified Defendant of the basis for Landry's claim, the court need not address the parties' conflicting affidavits whether McElroy told Dixon about Landry's disability. The court notes, however, that the Dixon Declaration does not contradict the above-discussed evidence. Dixon's sworn statement is narrow: "[T]he EEOC never identified or described the nature of Landry's disability as a congenital amputee to me at any time during the investigation and prior to release of the Determination against Walmart." Dixon does not declare that Defendant had no knowledge of Landry's disability, and his statement is time-limited to "prior to the release of the Determination." Nor does the affidavit state that the Defendant had no notice of Landry's disability during conciliation discussions. The court concludes the EEOC fulfilled its statutory requirement to notify Defendant of the allegations against it as part of conciliation discussions.
III. Conclusions and Order
For the reasons stated above, Defendant's Opposed Motion to Stay and Compel Conciliation (Docket Entry No. 29) is DENIED.
By May 8, 2020, the parties will submit a joint status report describing the discovery that has been completed and what reasonable discovery is still needed and a proposed amended docket control order.