The opinion of the court was delivered by: GETTLEMAN
Plaintiff United States Equal Employment Opportunity Commission (the "EEOC") filed its one-count amended complaint alleging that defendants Rockwell International Corp. ("Rockwell") and Cambridge Industries Inc. failed to hire applicants for employment based on a perceived disability and used employment tests that screened out a class of individuals perceived to have disabilities, in violation of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101 et seq., and Title I of the Civil Rights Act of 1991. Rockwell has filed a motion to dismiss in part the amended complaint pursuant to Fed.R.Civ.P. 12(b), contending that the court lacks jurisdiction over any claim of discrimination other than that which involves Rockwell's Centralia, Illinois facility.
Before reaching the merits of Rockwell's motion, Rockwell moves to exclude from the court's consideration all references to documents attached to plaintiff's response, including: (1) the Declaration of Donald Marvin (an EEOC investigator assigned to the Chicago District Office); (2) selected pages from the 1992-1995 Collective Bargaining Agreement; (3) file notes of Donald Marvin; and (4) the June 9, 1994 Conciliation Letter (the "Conciliation Letter"). Rockwell argues that these documents are not referenced in the amended complaint and thus are not properly considered on a Rule 12(b) motion without converting the motion to a Rule 56 motion for summary judgment. Rockwell further argues that the Conciliation Letter is inadmissible under 42 U.S.C. § 2000e-5(b) ("§ 2000e-5(b)").
As to the admissibility of the Conciliation Letter under § 2000e5(b), the court first considers the statutory bar. In § 2000e-5(b) Congress takes into consideration the privacy rights of the commission and private employers in guarding against the release of speculative discriminatory allegations, investigations, and conciliation proceedings. Under the statue, this bar can be lifted when there is written consent by both parties concerned. In its brief in support of its motion to dismiss Rockwell cites a portion of the Conciliation Letter and attached a letter written to Rockwell's counsel concerning the proposed conciliation agreement. Further, Rockwell's claim that this court lacks jurisdiction is in part based on the scope of plaintiff's conciliation efforts. Plaintiff then attached a copy of the Conciliation Letter to its response brief, seeking to have the court determine for itself whether the language in the letter provided Rockwell with sufficient notice of the scope of its conciliatory efforts to support jurisdiction over claims involving Rockwell's facilities other than Centralia.
This situation is analogous to the rule that prohibits the admission into evidence of anything said during a settlement conference or exchanged in writing between attorneys concerning settlement negotiations. This bar does not apply, however, when the court must decide the issue of whether the parties entered into a binding settlement agreement. See, Mattingly v. City of Chicago, 897 F. Supp. 375 (N.D.Ill. 1995) (the defendants moved to enforce a settlement agreement).
In considering such a motion, the court must consider the oral and written statements of the parties to determine whether the parties entered into a legally binding agreement. Mattingly, 897 F. Supp. at 377.
In the instant case, Rockwell specifically raised the issue of the scope of plaintiff's conciliation efforts in its motion. Further, both parties cited the terms of the Conciliation Letter in their briefs.
Based on these facts, the court finds that Rockwell has waived the bar in 2000e-5(b), and that the court may consider the written conciliation negotiations between the parties for purposes of Rockwell's jurisdictional motion.
Jurisdiction Over the Scope of Plaintiff's Claim
When read carefully, Equal Employment Opportunity Com'n v. Am. Nat. Bank, 652 F.2d 1176, 1185 (4th Cir. 1981), cert. den. 459 U.S. 923, 74 L. Ed. 2d 186, 103 S. Ct. 235, a case relied on by Rockwell, is on point and directly contradicts Rockwell's argument. In Am. Nat. Bank, the EEOC sought to include two branches of the defendant bank in its complaint, although the EEOC determination letter found reasonable cause at only one branch. The district court concluded that the charges relating to the second branch involved "new discrimination" that could not be made part of the suit. The Fourth Circuit reversed, stating that the question was not whether the court had jurisdiction over "new" charges of discrimination brought for the first time by the EEOC in its civil complaint, but whether the court had jurisdiction over the same charges of discrimination against a single defendant, expanded to include the same practices at all its branch offices. 652 F.2d at 1185.
The court held that, "jurisdiction to all branches of [the defendant] was proper in this case because there was, through the EEOC's investigation and attempted conciliation with regard to [one branch], adequate notice to the defendant of the practices under investigation and ample opportunity for conciliation concerning those practices." Id. The court went on to note that had conciliation been successful, whatever changes that would have been instituted at the one branch "would no doubt logically and necessarily have been made at [the other] branches as well."
In the instant case, defendant operates facilities nationwide. Counsel for defendant, who is representing defendant nationwide, was given notice of the EEOC's allegations concerning the alleged illegal practices and the EEOC's wish to reconcile this issue at all facilities and plants where the alleged discriminatory tests were or are used.
The reason for requiring that a particular charge of discrimination be the subject of the reasonable cause determination and conciliation is to notify the employer that practices related to these charges are suspect and allow the employer an opportunity to remedy the problem out of court. Am. Nat. Bank, 652 F.2d at 1186.