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E.E.O.C. v. DIAL CORP.

August 14, 2001

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
DIAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Urbom, Senior District Judge.

    MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This case is now before me on a motion for summary judgment filed by the defendant, The Dial Corporation (hereinafter Dial). Filing 70. In its complaint, the plaintiff Equal Employment Opportunity Commission (hereinafter EEOC) alleges that Dial has engaged in a pattern or practice of tolerating sexual harassment and "sex-based" harassment at its Aurora, Illinois, manufacturing plant since at least July of 1988. Filing 1 ¶ 7. The EEOC seeks equitable relief, as well as compensatory and punitive damages for those women affected by Dial's unlawful employment practices. Id. ¶¶ A-I. Dial has moved for summary judgment with respect to both the pattern-or-practice and individual claims. After carefully reviewing the materials submitted by both parties, I find that Dial's motion will be granted in part and denied in part.

I. Background

Beverly J. Allen, a Dial employee at the Aurora manufacturing plant, filed a Charge of Discrimination with the EEOC on February 5, 1996. Charge of Discrimination, Allen Dep. at Ex. 12 (filing 98, tab A). In this charge, Allen alleged that from 1992 until December of 1995, she had been sexually harassed by a co-worker, Paul Jones, and that she had been retaliated against for complaining of such harassment to her supervisor.*fn1 Id. In accordance with 42 U.S.C. § 2000e-5(b), the EEOC notified Dial of the charge and began investigating Allen's allegations.

On March 16, 1998, the EEOC issued a Letter of Determination finding that it had "reasonable cause to believe that [Dial] discriminated against females, as a class, including [Beverly Allen], in that they were subjected to sexual harassment and when they complained [Dial] failed to take prompt, effective action." Letter of Determination, Banas Decl. at Ex. 1 (filing 98, tab Z). The parties then engaged in efforts to conciliate the claims. These efforts failed, and the EEOC subsequently filed suit on May 20, 1999.

In its complaint, the EEOC alleges that "[s]ince at least July 1988, [Dial] has engaged in a pattern and practice of unlawful employment practices at its facilities, in violation of Section 703(a)(1) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a)(1) and -6." Complaint ¶ 7, filing 1. According to the EEOC:

These practices include, but are not limited to, engaging in intentional discrimination against Allen and a class of female employees by subjecting them to sexual and sex-based harassment and failing to take prompt remedial action intended to eliminate the harassment after [Dial] became aware of the illegal behavior, all in continuing violation of Section 703(a) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a) and -6.
  Id. In terms of equitable relief, the EEOC seeks (1) a permanent injunction barring Dial from engaging in discrimination on the basis of sex; (2) an order directing Dial "to institute and carry out policies, practices and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices"; (3) an order directing Dial to provide sexual harassment training to its officers, managers, and employees; and (4) backpay, with prejudgment interest, for the class of female employees affected by Dial's unlawful practices, including Beverly Allen. Id. ¶¶ A, B, G, C. The EEOC also seeks compensatory and punitive damages on behalf of Allen and the other class members, as well as its costs. Id. ¶¶ D, E, F, I.

II. Standard for Summary Judgment

A motion for summary judgment shall be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A "material" fact is one "that might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine" issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256, 257, 106 S.Ct. 2505 (citations omitted) (citing FED. R. CIV. P. 56(e)).

III. Analysis

In moving for summary judgment, Dial asserts that the "EEOC's pattern and practice claim is deficient in numerous respects, any one of which entitles Dial to judgment as a matter of law." Defendant's Motion for Summary Judgment ¶ 9, filing 70; Defendant's Memorandum of Law in Support of its Motion for Summary Judgment [hereinafter Defendant's Memorandum] at 1, filing 94 (contending that "[the] EEOC's case fails procedurally and substantively as a matter of law"). According to Dial, these "deficiencies" include the following: (1) the EEOC's attempt to base its pattern-or-practice claim on Beverly Allen's individual charge circumvents Title VII's administrative charge process; (2) Allen's individual charge does not provide a sufficient basis for the EEOC's pattern-or-practice claim because (a) the charge was untimely, and (b) her claim fails on the merits as a matter of law; (3) the pattern-or-practice theory of Title VII liability is not viable in sexual harassment cases generally or in this case specifically; (4) the litigation model proposed by the EEOC violates Dial's rights under the Seventh Amendment; (5) even if the EEOC's theory is cognizable under Title VII, the agency cannot show that Dial had a "standard operating procedure" of tolerating sexual harassment; (6) all or most of the individual claims for relief must fail because (a) the claims are untimely, (b) the conduct complained of does not rise to the level of actionable sexual harassment, and/or (c) there is no basis for holding Dial liable for the conduct; (7) those class members who have executed valid Title VII releases cannot recover damages; and (8) even if there is some question as to the validity of these releases, the doctrine of ratification bars such class members from recovering damages. Defendant's Motion for Summary Judgment ¶ 9(a)-(h), filing 70. After first reviewing the elements of a hostile environment sexual harassment claim, as well as Title VII's general framework, I will discuss each of Dial's arguments below.

A. Elements of a Hostile Environment Sexual Harassment Claim

Title VII of the Civil Rights Act of 1964 makes it unlawful "for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). It is well-settled that "sex discrimination" includes sexual harassment that is so "severe or pervasive" as "`to alter the conditions of [the victim's] employment'" and create a hostile working environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (citation omitted); EEOC v. Mitsubishi Motor Mfg. of America, Inc., 990 F. Supp. 1059, 1070-71 (C.D.Ill. 1998). In order to establish a prima facie case of hostile environment sexual harassment, a plaintiff must demonstrate the following:

(1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment . . .;*fn2 and (4) there is a basis for employer liability.

Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998) (citations omitted).

In determining whether the alleged sexual harassment is severe or pervasive enough to constitute a hostile work environment, courts must consider the "totality of the circumstances." See Meritor, 477 U.S. at 69, 106 S.Ct. 2399; Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Factors that may be relevant in making this determination include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. 367. In addition, the conduct at issue must be tested against both an objective and subjective standard. See Meritor, 477 U.S. at 67-68, 106 S.Ct. 2399; Harris, 510 U.S. at 22, 114 S.Ct. 367. Thus, "the trier of fact must find both that an objectively reasonable person would find the environment hostile and that the victim, herself, subjectively perceived the environment as hostile." Mitsubishi, 990 F. Supp. at 1071 (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367); see also Faragher v. Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ("[A] sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.").

An employer's liability for hostile environment sexual harassment depends upon whether the alleged harassers were supervisors or co-employees. Parkins, 163 F.3d at 1032. With respect to co-worker harassment, "employers are liable only when they have been negligent either in discovering or remedying the harassment." See Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997) (citations omitted); see also Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1017, 1018 (7th Cir. 1996) ("The liability of an employer for sexual harassment by one nonsupervisory employee of another is not strict. The plaintiff must prove that the employer was negligent in having failed to discover and prevent it." (citations omitted)). Where the harasser is a supervisor, an employer's liability is automatic "when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (explaining that "[n]o affirmative defense" is available in such cases); Faragher, 524 U.S. at 807, 118 S.Ct. 2275 (same). However, in those cases where the employee has not suffered any tangible job consequences, the employer may avoid liability by demonstrating "(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000).

B. Title VII's General Framework

Title VII, as originally drafted, limited the EEOC's role in eliminating unlawful employment practices to "`informal methods of conference, conciliation, and persuasion.'" General Tel. Co. v. EEOC, 446 U.S. 318, 325, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980); see also EEOC v. Harvey L. Walner & Associates, 91 F.3d 963, 968 (7th Cir. 1996) ("The goal of Title VII, as originally drafted, was to encourage the private settlement of claims as an informal means toward the end of eliminating discrimination without overburdening the courts or EEOC."). As a result, "[c]ivil actions for enforcement upon the EEOC's inability to secure voluntary compliance could be filed only by the aggrieved person." General Tel. Co., 446 U.S. at 325, 100 S.Ct. 1698 (citing § 706(e), 78 Stat. 260). Recognizing that "these informal mechanisms were proving unequal to the task," Congress expanded the EEOC's enforcement powers with its 1972 amendments, which authorized the EEOC to initiate civil actions in federal court against private employers reasonably suspected of violating Title VII. See Walner, 91 F.3d at 967-68; General Tel. Co., 446 U.S. at 325-26, 100 S.Ct. 1698; 42 U.S.C. § 2000e-5(f), -6(e). These amendments, however, "retained the previous emphasis on administrative resolution and conciliation of charges." EEOC v. American Nat. Bank, 652 F.2d 1176, 1185 (4th Cir. 1981); see 42 U.S.C. § 2000e-5(b). Thus, before the EEOC may bring suit in federal court against a private employer, there must be a charge filed with the EEOC, notice of the charge served on the employer, an investigation by the EEOC, a determination of reasonable cause, and an effort at conciliation. American Nat. Bank, 652 F.2d at 1185; 42 U.S.C. § 2000e-5(b).

Section 706 of Title VII provides that a charge may be filed "by or on behalf of a person claiming to be aggrieved, or by a member of the Commission. . . ." 42 U.S.C. § 2000e-5(b). Such a charge must be filed within a certain time frame after the alleged discrimination has occurred. See id. § 2000e-5(e)(1). In deferral states, such as Illinois, the charge filing period is 300 days, or 30 days after the charging party receives notice that the state or local agency has terminated its proceedings, whichever is earlier. See id.; Walner, 91 F.3d at 968. The timely filing of an EEOC charge is not, however, "a jurisdictional prerequisite to filing a federal lawsuit, but rather, is more akin to a statute of limitations and subject to waiver, estoppel, and equitable tolling under appropriate circumstances." Hentosh v. Herman M. Finch Univ., 167 F.3d 1170, 1174 (7th Cir. 1999) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)); see also Mirza v. Department of Treasury, 875 F. Supp. 513, 517 (N.D.Ill. 1995) ("These administrative filing requirements [of Title VII and the ADEA] are not jurisdictional prerequisites which pose an absolute bar to suit, but rather `conditions precedent,' similar to statutes of limitations, which are subject to equitable modification." (citing Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir. 1991))).

After a charge has been filed, the EEOC notifies the employer of the charge and begins an investigation. 42 U.S.C. § 2000e-5(b), (e)(1) (requiring notice to be served on the employer within ten days after the charge is filed). The purpose of this investigation is to ascertain whether "there is reasonable cause to believe that the charge is true. . . ." Id. § 2000e-5(b). If the EEOC determines that reasonable cause does, indeed, exist, it must then engage in efforts to eliminate the offending practice through "conference, conciliation, and persuasion." Id. Should the EEOC's efforts to conciliate fail, it may then file a civil action in federal court. Id. § 2000e-5(f).

Finally, § 707 of Title VII grants the EEOC authority "to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission." Id. § 2000e-6(f).*fn3 Thus, the EEOC may institute a "pattern-or-practice" case on its own initiative, i.e., by the filing of a Commissioner's charge. Such cases must "be conducted in accordance with the procedures set forth in [42 U.S.C. § 2000e-5]." Id.

C. Pattern-or-Practice Liability

1. Compliance with Title VII's Administrative Requirements

In moving for summary judgment, Dial first argues that the EEOC's attempt to base its pattern-or-practice claim on Beverly Allen's charge circumvents Title VII's administrative charge process. According to Dial, it was not properly notified of the class-based allegations against it until the EEOC issued its Letter of Determination. In addition, Dial asserts that with the exception of Beverly Allen, it was not informed of either the identity of the claimants or the facts underlying their claims at any stage during the administrative process, and was therefore denied an opportunity to engage in "meaningful conciliation." See Defendant's Memorandum at 7, 9, filing 94. Thus, Dial concludes, EEOC's pattern-or-practice claim must fail.

In supporting its argument, Dial first directs me to the "scope-of-the-charge" doctrine, which prevents plaintiffs from basing a Title VII case on claims that are not "like or reasonably related to" the charge allegations. Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994); see EEOC v. United Parcel Serv., 94 F.3d 314, 318 (7th Cir. 1996); EEOC v. World's Finest Chocolate, Inc., 701 F. Supp. 637, 640 (N.D.Ill. 1988). As a result of this doctrine, Dial asserts, "no lawsuit alleging a class-wide Title VII violation can proceed unless the employer was given notice of such a violation in the administrative charge." Defendant's Memorandum at 7, filing 94 (citing Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127-28 (7th Cir. 1989); Maclin v. Northern Telecom, Inc., No. 95 C 7485, 1996 WL 495558, at *3 (N.D.Ill. Aug.28, 1996); White v. Mercy Hosp. & Med. Ctr., No. 93 C 7097, 1994 WL 249545, at *2 (N.D.Ill. June 7, 1994); Latuga v. Hooters, Inc., No. 93 C 7709, 1994 WL 113079, at *2 (N.D.Ill. April 1, 1994); Hoffman v. R.I. Enters., Inc., 50 F. Supp.2d 393, 401 (M.D.Pa. 1999)). In this case, Beverly Allen's charge does not allege that any other female employees at Dial were sexually harassed. Dial also notes that on the "Notice of Charge of Discrimination" form that the EEOC sent to Dial along with Allen's charge, the box labeled "claims to be aggrieved" was marked, while the box labeled "is filing on behalf of another" was not marked. Finally, Dial also contends that the EEOC's investigation was not "broad-based," as it was limited to Allen's "narrow charge allegations." Defendant's Memorandum at 8, filing 94. Thus, Dial concludes, "[b]ecause Allen's charge and [the] EEOC's investigation failed to put Dial on notice of any agency intention to bring a class-wide claim, EEOC's pattern and practice claim must be dismissed." Id. (citation omitted). I disagree.

As an initial matter, Dial has not persuaded me that "no lawsuit alleging a class-wide Title VII violation can proceed unless the employer was given notice of such a violation in the administrative charge." See id. at 7; see also Defendant's Reply Memorandum of Law in Support of its Motion for Summary Judgment [hereinafter Defendant's Reply] at 3, filing 190 ("EEOC's contention that Allen's charge gave Dial sufficient notice of its class-based pattern and practice claim is disingenuous."). As the EEOC correctly notes in its response, each of the cases on which Dial relies to support this proposition involve scenarios where a private plaintiff attempts to expand an individual charge into a class lawsuit. See Plaintiff EEOC's Memorandum in Opposition to Defendant Dial's Motion for Summary Judgment [hereinafter Plaintiff's Memorandum] at 41-42, 42 n. 20, filing 174.*fn4 Furthermore, according to the Seventh Circuit, "[the] EEOC may allege in a complaint whatever unlawful conduct it has uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint." Walner, 91 F.3d at 968 (citing EEOC v. United Parcel Serv., 860 F.2d 372, 374 (10th Cir. 1988); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 n. 10 (6th Cir. 1975)). Thus, "[i]t may, to the extent warranted by an investigation reasonably related in scope to the allegations of the underlying charge, seek relief on behalf of individuals beyond the charging parties who are identified during the investigation." United Parcel Serv., 94 F.3d at 318 (citing Cheek, 31 F.3d at 500);*fn5 see U.S. EEOC v. General Motors Corp., 826 F. Supp. 1122, 1127 (N.D.Ill. 1993) (stating that "the EEOC may properly bring a claim based on discrimination against a class of individuals where such a claim arises out of the investigation of an individual charge"); see also EEOC v. General Elec. Co., 532 F.2d 359, 366 (4th Cir. 1976), cited with approval in General Tel. Co., 446 U.S. at 331, 100 S.Ct. 1698 ("In other words, the original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act.").*fn6 Here, Allen alleged that she was the victim of a sexually hostile work environment. The EEOC then broadened the scope of Allen's charge by alleging that Dial engaged in a pattern or practice of tolerating sexual harassment. It seems to me that there is, indeed, a "reasonable nexus" between Allen's charge and the pattern-or-practice allegations in the EEOC's complaint. See Walner, 91 F.3d at 968; General Motors Corp., 826 F. Supp. at 1127; see also EEOC v. Keco Indus. Inc., 748 F.2d 1097, 1101 (6th Cir. 1984) ("[T]he EEOC has merely broadened the scope of the [individual's] charge by alleging that [the defendant] has engaged in sexual discrimination against all of its female employees in its assembly division. Consequently, the only difference between the EEOC's later charge and [the individual's] initial charge is the number of persons victimized by [the defendant's] allegedly discriminatory practices."). Likewise, it appears that the class-based claim could reasonably have been expected to grow out of Allen's initial complaint of sexual harassment. See, e.g., Keco Indus. Inc., 748 F.2d at 1101 ("[Since the] later class-based claim brought by the EEOC could have reasonably been expected to grow out of [the charging party's] individual complaint of discrimination, no new additional proceedings were necessary."). Thus, I am not persuaded that the scope-of-the-charge doctrine bars the EEOC's pattern-or-practice claim.

In its reply brief, however, Dial suggests that the EEOC's class-based action did not, in fact, grow out of its investigation of Allen's charge. According to Dial, the EEOC made no effort to identify class members until several months after it filed the present action, when it sent a letter to approximately 400 current and former female employees who had worked at the Aurora plant at any time since 1988, notifying them of the lawsuit and seeking "to identify any female employees who were affected by sex harassment and who may be entitled to recover in this lawsuit." See Defendant's Reply 3-4, filing 190; Defendant's Local Rule 56.1 Statement of Material Facts As To Which There Is No Genuine Issue [hereinafter Defendant's Statement of Facts] ¶ 91, filing 96. Thus, Dial concludes, "[the] EEOC's pattern and practice claim is based upon the individual claimants' responses to its solicitation letter, not Allen's charge." Defendant's Reply at 4, filing 190.

I do not find Dial's argument persuasive. As an initial matter, Dial simply has not directed me to any relevant authority indicating that the EEOC violated its statutory "notice" obligation in failing to identify every class member during the administrative process.*fn7 See, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 74, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984) ("[T]he principal objective of the [notice] provision seems to have been to provide employers fair notice that accusations of discrimination have been leveled against them and that they can soon expect an investigation by the EEOC."); World's Finest Chocolate, 701 F. Supp. at 640 ("The notice requirement was `designed to ensure that the employer was given some idea of the nature of the charge; the requirement was not envisioned as a substantive constraint on the Commission's investigative authority.'" (quoting Shell Oil Co., 466 U.S. at 75, 104 S.Ct. 1621)). In addition, to the extent Dial argues that the EEOC's investigation did not actually reveal class-wide discrimination, Dial's claim must fail. During its investigation of Allen's complaint, the EEOC requested, inter alia, "[c]opies of all sexual harassment complaints, investigations and results of the investigations filed by employees since April 23, 1991." Defendant's Statement of Facts ¶ 85, filing 96. According to Dial, "[it] provided [the] EEOC with the requested information." See id. ¶ 86.*fn8 There is no reason for me to doubt that it was the EEOC's review of these documents, as well as other evidence, which led it to find "reasonable cause" to believe that Dial had engaged in class-wide discrimination by subjecting women to sexual harassment and by failing to take "prompt, effective action" in response to sexual harassment complaints. Letter of Determination, Banas Decl. at Ex 1 (filing 98, tab Z). Furthermore, this reasonable cause determination is not subject to judicial review. See Walner, 91 F.3d at 968 n. 3 ("This determination of reasonable cause is only an administrative prerequisite to a court action and has no legally binding significance in subsequent litigation." (citation omitted)); EEOC v. St. Anne's Hosp., 664 F.2d 128, 131 (7th Cir. 1981) (rejecting defendant's claim that the EEOC failed to investigate adequately a particular claim and noting that "[a] reasonable cause determination is not to adjudicate a claim but to notify an employer of the Commission's findings"); EEOC v. Chicago Miniature Lamp Works, 526 F. Supp. 974, 975 (N.D.Ill. 1981) (rejecting defendant's request "to look behind [the] EEOC's express finding of broad-scale discrimination to decide whether [the] EEOC had any reasonable basis for making that finding," and noting that "Title VII's statutory scheme clearly indicates that no such procedure was intended by Congress"); Keco Indus., Inc., 748 F.2d at 1100 (concluding that the district court erred in "inquir[ing] into the sufficiency of the Commission's investigation" (citing St. Anne's Hosp., 664 F.2d at 128; General Elec. Co., 532 F.2d at 359; Chicago Miniature Lamp Works, 526 F. Supp. at 974)); General Elec. Co., 532 F.2d at 370 ("[The EEOC's] proceedings are not binding on the employer and they are not reviewable."). Thus, despite Dial's assertions to the contrary, I have no grounds for concluding that the EEOC's class-based action did not, in fact, "gr[o]w out of its investigation of Allen's charge." See Defendant's Reply at 4, filing 190.

Next, Dial argues that because it was not informed of either the identity of the other claimants or the facts supporting their claims at any stage of the administrative process, it was denied the opportunity to conciliate these claims. See Defendant's Memorandum at 9, filing 94; Defendant's Reply at 5, filing 190. In response, the EEOC contends that Dial did, indeed, have an opportunity to conciliate all of the claims, and that "[i]t was Dial's refusal to even offer any reasonable relief for the charging party, much less the other members of the class, that impeded the conciliation process." Plaintiff's Memorandum at 43, filing 174. After reviewing the material submitted by both parties, I am persuaded that the EEOC satisfied its statutory obligation to conciliate.

The EEOC is charged with making a "good faith" effort to conciliate before filing suit. See EEOC v. First Midwest Bank, N.A., 14 F. Supp.2d 1028, 1031 (N.D.Ill. 1998) (citing Keco Indus., Inc., 748 F.2d at 1102; EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978)). Conciliation, however, is "`a flexible and responsive process which necessarily differs from case to case.'" Id. (quoting EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985)). Thus, "`[t]he EEOC may make a sufficient initial effort without undertaking exhaustive investigations or proving discrimination to the employer's satisfaction . . . so long as it makes a sincere and reasonable effort to negotiate by providing an "adequate opportunity to respond to all charges and negotiate possible settlements."'" Id. (quoting Prudential, 763 F.2d at 1169; Marshall v. Hartford Fire. Ins. Co., 78 F.R.D. 97, 107 (D.Conn. 1978)). The judiciary's role in reviewing the conciliation process is limited, as "the form and substance of the EEOC's conciliation proposals" are within the agency's discretion and, therefore, immune from judicial second-guessing. See id. (citing Keco Indus., Inc., 748 F.2d at 1102; EEOC v. Acorn Niles Corp., No. 93 C 5981, 1995 WL 519976, at *6 (N.D.Ill. Aug.30, 1995)).

Based on the evidence presented, it appears to me that the EEOC has satisfied its statutory duty to make "a sincere and reasonable effort to negotiate." See id. (quoting Prudential, 763 F.2d at 1169). The record shows that on March 16, 1998, EEOC investigator Norma Hill contacted Dial's in-house counsel, Margaret Banas, and advised Banas that (1) the EEOC was planning to issue its finding of reasonable cause that day, and (2) the EEOC was seeking relief on behalf of Allen and a class of females. See Defendant's Statement of Facts ¶ 87, filing 96; Plaintiff's Response to Defendant's Local Rule 56.1 Statement of Material Facts [hereinafter Plaintiff's Response to Defendant's Statement of Facts] ¶ 87, filing 175. During this conversation, Banas apparently requested that Hill identify the class members. See Defendant's Statement of Facts ¶ 87, filing 96; Plaintiff's Response to Defendant's Statement of Facts ¶ 87, filing 175. According to Dial, Hill responded that she did not know who the class members were, and that their identities would have to be determined during discovery. See Defendant's Statement of Facts ¶ 87, filing 96. The EEOC, however, denies that Hill responded in this fashion. In her declaration, Hill states the following:

I told [Banas] that [the class members] were yet to be identified. I told her the class would include those mentioned in the investigation but might also include other women. . . . I did not tell her that the identities of the ...

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