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EEOC v. FIRST MIDWEST BANK

July 13, 1998

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
FIRST MIDWEST BANK, N.A., Defendant.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 The plaintiff, the Equal Employment Opportunity Commission ("EEOC"), brought suit against the defendant, First Midwest Bank, N.A. ("First Midwest"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. First Midwest moves to dismiss the complaint, arguing the EEOC did not conciliate in good faith before filing suit. For the following reasons, a sixty day stay is granted so that the parties may attempt conciliation.

 Background1

 On April 16, 1996, Eileen Frank, an employee at First Midwest, filed an EEOC charge of discrimination alleging First Midwest denied her a promotion because of her gender. (Df. Ex. A). On October 7, 1996, Ms. Frank filed a second EEOC charge alleging gender discrimination based on another failure to promote. (Df. Ex. B). The EEOC commenced an investigation of both charges. The EEOC investigator assigned to Ms. Frank's charges, Cheryl Mabry-Thomas, informed First Midwest that the EEOC's investigation would examine First Midwest's promotion of women to the position of Senior Lending Officer or above. (Manzoni Aff. P 5).

 On June 17, 1997, *fn2" Ms. Mabry-Thomas contacted one of First Midwest's lawyers, Neil Wolf, and informed Mr. Wolf the EEOC had decided to issue a Letter of Determination finding there was "reasonable cause" to believe First Midwest made discriminatory promotion decisions against Ms. Frank as well as against females as a class. (Mabry-Thomas Aff. PP 3-4). Ms. Mabry-Thomas informed Mr. Wolf First Midwest could submit further evidence in support of its position that discrimination had not occurred. She also discussed the conciliation process with Mr. Wolf and suggested general terms of conciliation. (Mabry-Thomas Aff. PP 6-7). On June 23rd, Carol Manzoni, another of First Midwest's lawyers, faxed a letter to Ms. Mabry-Thomas requesting a face-to-face meeting to discuss the EEOC's findings. (Manzoni Aff. P 8; Df. Ex. C). On June 27th, Ms. Mabry-Thomas informed Ms. Manzoni the EEOC would not agree to a meeting before the issuance of a Letter of Determination. (Manzoni Aff. P 9).

 On June 30th, Ms. Manzoni faxed Ms. Mabry-Thomas a second letter requesting an in-person meeting and objecting to the EEOC's refusal to participate in a face-to-face meeting as against EEOC policy. (Df. Ex. D). On July 10th, Ms. Mabry-Thomas responded to Ms. Manzoni's second fax with a letter. (Df. Ex. E). Ms. Mabry-Thomas stated she was disinclined to participate in a face-to-face meeting to review evidence that had been discussed at great length with Mr. Wolf. Ms. Mabry-Thomas informed Ms. Manzoni that the letter served as the EEOC's final request for additional information before the issuance of a Letter of Determination.

 On July 15th, the EEOC issued a Letter of Determination. (Pl. Ex. A). The EEOC found the evidence obtained in the investigation established "reasonable cause" to believe Ms. Frank was discriminated against because of her gender and that First Midwest "discriminated against females as a class in violation of Title VII" in regards to promotions to Senior Lending Officer and Banking Center President. (Pl. Ex. A at 1). The Letter did not provide any information regarding the other women against whom the EEOC believed First Midwest had discriminated, when discrimination occurred, or where it occurred. The Letter, signed by John Rowe, District Director of the EEOC, invited First Midwest to take part in conciliation efforts. (Pl. Ex. A at 2).

 On July 25th, Ms. Manzoni wrote Mr. Rowe. (Df. Ex. F). Ms. Manzoni again requested an in-person meeting and asked the EEOC to reconsider its findings. Ms. Manzoni informed Mr. Rowe that without any evidentiary understanding of the EEOC's findings, particularly with respect to the class discrimination, it would be difficult for First Midwest to engage in meaningful conciliation efforts. On August 4th, Ms. Mabry-Thomas left a voicemail message for Ms. Manzoni detailing the EEOC's conciliation offer. (Df. Ex. G). *fn3" The EEOC offered to conciliate Ms. Frank's case and the class case for either: (1) $ 500,000 or (2) $ 250,000 plus the President's job for Ms. Frank. Ms. Mabry-Thomas requested a counteroffer or response by the end of the week.

 On August 7th, Ms. Mabry-Thomas faxed Ms. Manzoni a letter stating that if First Midwest did not respond to the EEOC's conciliation offer by August 11th, the EEOC would assume First Midwest was not interested in conciliation. (Df. Ex H). Later in the day on August 7th, however, Ms. Mabry-Thomas called Ms. Manzoni and told her to disregard the faxed letter and August 4th conciliation offer because Mr. Rowe had decided to reconsider the Letter of Determination. (Manzoni Aff. P 20). On August 8th, Ms. Manzoni sent another letter to Mr. Rowe. (Df. Ex. I). Ms. Manzoni again requested a face-to-face meeting so that First Midwest could understand the basis of the EEOC's concerns. Ms. Manzoni attempted to reach Mr. Rowe by phone on August 12th, 19th, and 25th. Ms. Manzoni's calls were not returned. (Manzoni Aff. P 22).

 Ms. Mabry-Thomas left another voicemail message for Ms. Manzoni on September 11th. (Df. Ex J). Ms. Mabry-Thomas noted the EEOC had not received a response to its August 22nd letter and wanted to know whether First Midwest was interested in conciliation. Ms. Manzoni faxed Ms. Mabry-Thomas a letter on September 12th. (Df. Ex. K). Ms. Manzoni informed Ms. Mabry-Thomas that she was still under the impression Mr. Rowe was reconsidering the Letter of Determination and was still interested in a face-to-face meeting to discuss the matter. On September 17th, Ms. Mabry-Thomas responded to Ms. Manzoni's letter with a voicemail message. (Df. Ex. L). The voicemail message indicated Mr. Rowe sent a letter to Ms. Manzoni on August 22nd upholding the findings in the Letter of Determination. Ms. Mabry-Thomas stated that Mr. Rowe rarely gets involved in conciliation efforts and that if a conciliation offer was not forthcoming from First Midwest by September 22nd, the EEOC would assume First Midwest did not have a conciliation proposal.

 On September 19th Ms. Manzoni faxed Ms. Mabry-Thomas a letter indicating First Midwest had never received Mr. Rowe's August 22nd letter and that numerous failed attempts had been made throughout the day to reach Ms. Mabry-Thomas to discuss conciliation. (Df. Ex. M). On September 22nd, Ms. Mabry-Thomas faxed Ms. Manzoni a copy of Mr. Rowe's August 22nd letter. (Df. Ex. N). Mr. Rowe's letter stated the EEOC's finding of "reasonable cause" was appropriate and informed First Midwest that Ms. Mabry-Thomas and an EEOC attorney, Jose Behar, would be available during the week of August 25th to meet and discuss conciliation prospects. The basis of the EEOC's findings is not discussed in the letter. On the next day, September 23rd, Ms. Manzoni faxed Ms. Mabry-Thomas a letter indicating First Midwest was now in receipt of Mr. Rowe's August 22nd letter and that First Midwest would like to meet with Ms. Mabry-Thomas and Mr. Behar to discuss conciliation on September 26th, October 1st, or October 3rd. (Df. Ex. O).

 Later in the day on September 23rd, Ms. Mabry-Thomas responded to Ms. Manzoni's letter by suggesting September 26th as a meeting day. Ms. Manzoni informed Ms. Mabry-Thomas that September 26th was no longer a good meeting day, but that she was still available on October 1st and October 3rd. (Manzoni Aff. PP 30-31). On September 24th, Ms. Mabry-Thomas left Ms. Manzoni a lengthy voicemail message. (Df. Ex. P). Ms. Mabry-Thomas informed Ms. Manzoni the EEOC did not want to extend conciliation efforts into October unless First Midwest was prepared to make a conciliation proposal. Ms. Mabry-Thomas then stated that the EEOC was looking for somewhere in the neighborhood of $ 2 million dollars for Ms. Frank and $ 2 million dollars for the female class members. Ms. Mabry-Thomas also indicated the EEOC would not identify class members until First Midwest had put a dollar amount on the table.

 On September 25th, Ms. Mabry-Thomas left another voicemail message for Ms. Manzoni. (Df. Ex. Q). Ms. Mabry-Thomas inquired whether there would be a September 26th conciliation meeting and stated that a prerequisite to continuing conciliation discussions into October would be a "serious proposal" by First Midwest. Later in the day on September 25th, Ms. Manzoni responded to Ms. Mabry-Thomas' voicemail with a faxed letter. (Df. Ex. R). Ms. Manzoni reiterated First Midwest's interest in conciliation and in meeting face-to-face with Ms. Mabry-Thomas and Mr. Behar. Ms. Manzoni informed Ms. Mabry-Thomas September 26th was unavailable, but that both October 1st or October 3rd remained good days to meet. Ms. Manzoni stated First Midwest's concern that the EEOC's conciliation proposal had inexplicably moved from $ 250,000 in early August to $ 4 million on September 24th. Ms. Manzoni was also interested in getting a formal written proposal from the EEOC.

 On September 26th, Mr. Rowe wrote Ms. Manzoni a letter stating the EEOC had determined that conciliation efforts had occurred and failed. (Pl. Ex. B). On December 17th, the EEOC filed this suit against First Midwest on behalf of ...


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