Court Holds EEOC Accountable
 
September 25, 2003
 

The U.S. Circuit Court of Appeals for the Eleventh Circuit recently took the Equal Employment Opportunity Commission (EEOC) to task when it issued its decision in Equal Employment Opportunity Commission v. Asplundh Tree Expert Co. The Court affirmed an award of attorneys fees against the EEOC and in favor of the defendant when it considered the EEOC’s conduct during the pre-suit administrative stage of the claim.

The EEOC administered a charge of discrimination filed by Robert Lewis, a former employee of Asplundh Tree Expert Company (Asplundh). Asplundh had contracted with Gainesville Regional Utilities (GRU) of Gainesville, Florida, to dig ditches and lay underground cable for a three-year period, expiring October 1996. In November 1995, Asplundh hired Robert Lewis as a laborer; he was assigned to a three-man crew that worked in the field, digging ditches and laying cable. An employee of GRU (not Asplundh), Pete Evans, was charged with visiting the work sites, observing the crews, and inspecting the work. Lewis alleged that Evans made offensive racial jokes and fashioned a rope noose and placed it on Lewis’ neck. Evans denied the allegations. Lewis complained to Asplundh’s general foreman, who arranged for a meeting with the GRU employee. Evans apologized for any offensive conduct and there was no further harassment by Evans. At no time did Evans work for Asplundh.

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

Thereafter, Lewis filed a Charge of Discrimination with the EEOC, alleging discrimination against GRU for Evans’ actions. Initially, the EEOC rejected the charge, advising Lewis that it failed to state an actionable claim against Asplundh. Lewis submitted a revised charge, alleging disparate pay, racial harassment and retaliation, and specifically referenced “Pete Evans, GRU Inspector.”

For 32 months the EEOC conducted an investigation into Lewis’ charge of discrimination. Throughout the investigation, which focused on the disparate pay issue, Asplundh cooperated with the EEOC. In March 1999, the EEOC issued a determination, finding “reasonable cause” on the harassment and retaliation claims. Within one week of the finding, on April 7, 1999, the EEOC sent a Conciliation Agreement to Asplundh’s General Counsel in Philadelphia, Pennsylvania, requiring a response by April 23. This deadline provided 12 business days for Asplundh to investigate and respond to the reasonable cause finding that arose out of the Gainesville, Florida, incident. The EEOC “proposal” sought both reinstatement and front pay—on a job that no longer existed as the contract had expired and the site had been closed since October 1996. It also required Asplundh to provide notice to its entire national workforce of Lewis’ allegations and to conduct discrimination training of both employees and managers, nationwide, within 90 days. The EEOC proposal did not identify any theory for finding Asplundh liable for conduct of the GRU employee.

Asplundh promptly identified and retained a Florida lawyer to investigate and respond to the EEOC’s proposal. On April 28, 1999, the attorney sent a facsimile to the EEOC, advising as to his representation, soliciting an extension and an opportunity to discuss the proposal and the EEOC’s basis for its determination. The EEOC ignored the fax. The next day, the EEOC issued a new letter to Asplundh’s General Counsel, declaring that it had not received a reply to its effort to conciliate, that the conciliation was “unsuccessful” and further efforts to conciliate would be “futile or non-productive.” Asplundh’s Florida lawyer continued his efforts to communicate with the EEOC, all to no avail. On May 10, the EEOC returned a call to the Florida lawyer and told him to call the Regional Attorney. Two days later, on May 12, 1999, the EEOC filed a lawsuit against Asplundh.

Criticizing the EEOC’s apparent ‘rush to judgment,’ the Court focused on the statutory duties of the EEOC. Specifically, the Court cited the EEOC’s duty to attempt to eliminate the alleged unlawful employment practices by informal methods of conference, conciliation and persuasion. In finding that the EEOC had failed to meet its statutory duty of good faith conciliation, the court awarded costs and fees to Asplundh.

To satisfy the requirement of good faith conciliation, the EEOC must do the following: (i) outline the reasonable cause for its belief that Title VII has been violated; (ii) offer an opportunity for voluntary compliance; and (iii) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. In evaluating whether the EEOC has complied with its obligation to engage in good faith conciliation efforts, the “fundamental question is the reasonableness and responsiveness of the EEOC’s conduct under all the circumstances.” In this case, the district court ruled that the EEOC had acted in a “grossly arbitrary manner” and “engage[d] in unreasonable conduct.” The appellate court agreed.

First, the court noted that the EEOC spent three years investigating the charge as compared to the “flurry of activity” it created when it “proposed” the conciliation agreement, rejected the lawyer’s efforts to discuss the proposal, and quickly leapt to filing a lawsuit. In this flurry of activity, the EEOC never identified any legal theory under which Asplundh (who did not employ the alleged harasser) should be liable for the actions of a city employee. The court noted that the EEOC’s conduct “smacks more of coercion than of conciliation.” Despite nearly three years of investigation, the EEOC gave Asplundh virtually no time to conduct its own investigation and respond to the EEOC proposal (a proposal that was national in scope and impossible to perform in that no reinstatement or front pay was available on a project that had ended three years earlier).

Second, the Court observed that the “all or nothing” approach of the EEOC, a government agency, was not acceptable. Recognizing that Congress had expressed a strong desire for out-of-court settlements, as evidenced by the EEOC’s conciliation obligation, the court rejected the EEOC argument that it had no obligation to respond to the lawyer’s letter (which was sent a couple of days beyond the EEOC’s arbitrary deadline).

In sum, the EEOC had acted unreasonably in failing to identify, at minimum, the basis for the EEOC charges against Asplundh, in failing to provide a meaningful opportunity for conciliation, and in failing to reasonably respond to counsel’s efforts to discuss the findings and conciliation proposal.

In apparent disgust, the Court also noted that the EEOC seemed more interested in, and perhaps motivated by, its desire to publish the more scandalous allegations to the New York Times, rather than fulfilling its statutory obligations.

This case illustrates the importance the Court placed on conciliation and good faith efforts to participate in that process and attempt to negotiate pre-suit resolution.

For more information, e-mail Cynthia Brennan at cynthia.brennan@hklaw.com, or call toll free, 1-888-688-8500.

Related Practices