United States District Court, S.D. Illinois
June 14, 2005.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
CROWNLINE BOATS, INC., Defendant.
The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Crownline Boats
Inc.'s ("Crownline") motion to dismiss this case pursuant to
Federal Rule of Civil Procedure 12(b)(1) and alternative motion
for stay (Doc. 3). Plaintiff Equal Employment Opportunity
Commission (EEOC) has responded to the motion (Doc. 6), and
Crownline has replied to the EEOC's response (Doc. 10).
I. Alleged Facts
In order to decide this motion, the Court only needs to
consider the basic facts to which each party agrees. Leslie
Kearney, a former employee of Crownline, was discharged on
February 14, 2003 because she was pregnant. At the time of
Kearney's termination, Crownline had a policy of not allowing
pregnant women to work in the Lamination Department, the
department in which Kearney was working when she was discharged.
On April 21, 2003, Kearney filed a charge with the EEOC alleging
that Crownline discharged her based on sex, specifically
pregnancy, in violation of Section 703(a)(1) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a)(1).
Around June 19, 2003, Crownline tendered to Kearney an offer to
return to work with full reinstatement and seniority, but Kearney
chose to wait until the birth of her child before returning to work on September 15, 2003. Crownline has
voluntarily instituted new policies and procedures concerning its
pregnant employees. These procedures, Crownline alleges, were
instituted to address the EEOC's concerns.
On December 16, 2003, the EEOC issued its Letter of
Determination stating it had reasonable cause to believe
Crownline discriminated against Kearney and a class of Crownline
employees because of sex, pregnancy specifically. The Letter of
Determination also asked Crownline to take part in conciliation
efforts by proposing terms for a conciliation agreement.
Crownline shortly responded by setting forth an initial offer of
an agreement not to terminate any employee because of their
pregnancy and an agreement to refrain from engaging in future
unlawful employment acts. The EEOC responded with an oral
conciliation demand of $250,000 in back pay and other make whole
relief for other class members, as well as a demand that
Crownline institute training, posting and a policy change.
Crownline made an oral counteroffer on February 6, 2004, which
included back pay for Kearney. On February 18, 2004, Crownline
offered a written counteroffer of $4,338.57 as full back pay for
Kearney, less any amount she received in the interim. Further,
Crownline stated it refused to make a settlement offer regarding
any other class members nor did it comment on the EEOC's training
and policy change requests. After Crownline's written
counteroffer, the EEOC issued a letter stating the conciliation
efforts had been unsuccessful.
II. Procedural History
On November 24, 2004, the EEOC then filed a complaint with this
Court pursuant to Title VII of the Civil Rights Act of 1964 and
Title I of the Civil Rights Act of 1991. The EEOC alleges
Crownline has violated Section 703(a)(1) of Title VII,
42 U.S.C. § 2000e-2(a)(1), specifically, because Crownline discharged Kearney and others
because of sex, in particular, pregnancy. The EEOC has requested
a permanent injunction enjoining Crownline from engaging in
discrimination based on sex and pregnancy, an order for Crownline
to remedy past and present violations of Title VII by instituting
policies and programs to provide equal employment opportunities
for females, an order for Crownline to make whole Kearney and the
class, and other appropriate relief. Crownline subsequently filed
this motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) and alternative motion for stay.
Crownline argues this motion to dismiss for lack of subject
matter jurisdiction should be granted because the EEOC has not
attempted good faith conciliation efforts with Crownline and that
Crownline was ready, willing, and able to conciliate at all
times. By bringing this motion under Federal Rule of Civil
Procedure 12(b)(1), Crownline assumes that good faith
conciliation is a jurisdictional prerequisite, which must be
attempted before this Court has authority to hear this action.
The EEOC has responded to Crownline's motion to dismiss asserting
that it has attempted good faith conciliation. The EEOC points
out in a footnote that conciliation is not a jurisdictional
prerequisite, but nevertheless alternatively argues that it has
attempted good faith conciliation and Crownline's motion should
be denied, regardless.
Crownline replied to the EEOC's response. Crownline further
argues the EEOC has admitted it made no effort to conciliate the
class claim, and the EEOC has conceded that it failed to satisfy
its statutory obligation of conciliation with Kearney.
Although Crownline asks the Court to dismiss the EEOC's
complaint for lack of subject matter jurisdiction because the
EEOC has failed to attempt good faith conciliation efforts, the Court finds it unnecessary to determine the sufficiency of the
conciliation at this time. Neither good faith conciliation, nor
conciliation in general, are jurisdictional prerequisites to
this Court's authority over the matter. The Seventh Circuit Court
of Appeals has not stated directly whether conciliation is a
jurisdictional prerequisite to the EEOC filing a complaint.
However, principles of statutory construction, policy analysis,
and opinions by the United States Supreme Court and the Seventh
Circuit Court of Appeals addressing similar issues guide this
Court to the determination that conciliation is not a
Statutory duties and conditions precedent, such as the
administrative duty to conciliate, are preconditions to suit.
Although the parties and other courts, on occasion, have
carelessly referred to preconditions to suit as being
jurisdictional in nature, preconditions are altogether different
than jurisdictional prerequisites. Preconditions to suit are a
duty that must be performed before a suit can be filed, but when
the duty is not performed, the court still has jurisdiction to
entertain the claim.
In Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982),
the United States Supreme Court distinguished preconditions to
suit from jurisdictional prerequisites when deciding whether the
statutory time limit for filing charges under Title VII is a
jurisdictional prerequisite to suit. Based on the construction of
Title VII, the congressional policy underlying Title VII, and
prior United States Supreme Court opinions, the Court held it was
not a jurisdictional prerequisite. Id. at 393. Zipes has been
expanded by the Seventh Circuit Court of Appeals. The Seventh
Circuit has held exhaustion of administrative remedies in
general, like the statutory time limit in Zipes, is a
precondition to suit. See Ameritech Ben. Plan Comm. v.
Communication Workers of Am., 220 F.3d 814, 819 (7th Cir. 2000);
Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000).
For the same reasons used by the United States Supreme Court in
Zipes, this Court finds that good faith conciliation also is
not a jurisdictional prerequisite to suit, but is merely a
precondition to suit. The structure of Title VII, the policy of
the conciliation requirement, and Seventh Circuit Court of
Appeals opinions indicate conciliation is not a jurisdictional
prerequisite. First, the section conferring jurisdiction under
Title VII, 42 U.S.C. § 2000e-5(f)(3).*fn1 contains no
reference to the statutory conciliation requirement. The
provision referencing the duty to conciliate,
42 U.S.C. § 2000e-5(b),*fn2 is contained in an entirely separate provision, which makes no mention of the jurisdiction of the
district courts. Thus, Title VII's structure indicates the
conciliation requirement was not intended to be a jurisdictional
prerequisite as it is not included with the other jurisdictional
prerequisites of § 2000e-5(f)(3).
Second, the policy of the conciliation requirement is not
undermined by holding that conciliation is not a jurisdictional
prerequisite to suit. The conciliation requirement is present to
promote swift resolution of Title VII violations rather than a
resort to lengthy litigation. Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 764 (1998). When the need to challenge
the sufficiency of the EEOC's conciliation attempt arises, a
Title VII defendant can still plead and prove the EEOC's failure
to conciliate as an affirmative defense. See e.g. EEOC v. Zia
Co., 582 F.2d 527 (10th Cir. 1978); See Belgrave v. Pena
254 F.3d 384, 386 (2d Cir. 2001); See Massey v. Helman,
196 F.3d 727, 735 (7th Cir. 1999) (citing Williams v. Runyon,
130 F.3d 568, 573 (3d Cir. 1997)). If the sufficiency of conciliation is
not challenged as an affirmative defense, the Court still has
jurisdiction to hear the cause. See id. Alternatively, a
successful attack on the conciliation requirement will dispose of
the case before a trial on the merits. Thus, despite the
unavailability of a jurisdictional attack, the sufficiency of
conciliation can still be attacked by other methods furthering
the policy of conciliation.
Finally, as in Zipes, case law guides this Court as well. In
EEOC v. Zia Co., the court held that a lack of good faith
conciliation does not bar the court from having jurisdiction over the cause of action. 582 F.2d at 533. In so holding, the court stated
that the inquiry into the good faith conciliation attempt is
relevant when deciding whether the court should continue
entertaining the claim or whether the court should stay the
proceedings and allow the parties to attempt good faith
conciliation. Id. However, good faith conciliation is not
relevant to determining the court's power over the action. Id.
Further, Zia has been cited with approval by the Seventh
Circuit Court of Appeals for other rules of law contained in the
opinion, and it has been cited by several of the cases in the
parties' briefs. See e.g. EEOC v. Elgin Teachers Ass'n,
27 F.3d 292, 294 (7th Cir. 1994); EEOC v. Liberty Trucking Co.,
695 F.2d 1038, 1042 (7th Cir. 1982); EEOC v. Keco Indus., Inc.,
748 F.2d 1097, 1101-1102 (6th Cir. 1984).
Before Zia was decided, the Seventh Circuit Court of Appeals
had already stated, "[C]onciliation efforts by the EEOC are not
jurisdictional prerequisites to a judicial action." Flowers v.
Local No. 6, Laborers Int'l Union, 431 F.2d 205, 207 (1970).
Although the issue in Flowers was whether the individual
complainant could file suit in federal court when the EEOC has
not attempted conciliation, the Seventh Circuit did not qualify
nor limit its holding to individual private causes of action.
Further, a recent opinion from the Northern District of Illinois
has held conciliation is not a jurisdictional prerequisite for
the EEOC to file in court. EEOC v. Heart of America, 2003 WL
22764662, 1 (N.D. Ill. 2003). In Heart of America, the court
held Rule 12(b)(1) was not the proper method to challenge the
EEOC's conciliation efforts. Id.; See also EEOC v. Sears
Roebuck & Co., 504 F. Supp. 241, 262 (N.D. Ill. 1980) ("The
sufficiency of the conciliation effort presents a question of
whether the court should stay the proceeding for further
conciliation, not whether it has jurisdiction over the cause").
The Court now turns to the Northern District of Illinois and
other circuit court opinions which are cited in the parties' briefs. Most of the opinions
state conciliation is a statutory duty, but they do not convince
this Court that conciliation is a jurisdictional prerequisite.
Crownline cites EEOC v. First Midwest Bank, 14 F. Supp.2d 1028,
1031 (N.D. Ill. 1998), for the propositions that the EEOC is
statutorily obligated to attempt conciliation and that the EEOC
can file in court only after it is unable to successfully
conciliate (Crownline characterizes it as a "condition
precedent"). Id. Crownline is correct that the EEOC is
statutorily obligated to attempt conciliation, but that
precondition to suit is not akin to a jurisdictional
prerequisite. First Midwest never used the term jurisdiction in
Likewise, in EEOC v. Keco Indus., Inc., the court stated the
EEOC can file in court only after it is unable to successfully
conciliate, but does not say it is a jurisdictional failure if
the EEOC does not conciliate. 748 F.2d at 1101. Further, the
court in Keco considered the conciliation of the parties when
considering the district court's grant of a motion for summary
judgment. Id. at 1099. The court's subject matter jurisdiction
never was challenged. Crownline and several appellate court cases
state conciliation is a statutory duty, prerequisite to suit, or
condition precedent to suit; however, as noted above, the cases
do not state conciliation is a jurisdictional prerequisite.
Jurisdictional prerequisites are not the same as preconditions to suit.
Finally, Crownline cites EEOC v. Magnolia Elec. Power Ass'n,
635 F.2d 375, 378 (5th Cir. 1981), which concluded the EEOC's
failure to conciliate in good faith deprives the court of subject
matter jurisdiction. The court wrote the opinion in Magnolia
before Zipes was decided. Consequently, Magnolia did not have
the opportunity to consider the United States Supreme Court's
ruling on jurisdictional prerequisites in Zipes. Magnolia
precisely states, "[T]he EEOC's failure to follow
[administrative] procedures concerning a respondent deprives a
federal district court of subject matter jurisdiction in a suit by the
EEOC against that respondent." Id. The Seventh Circuit, in
cases following the Supreme Court's holding in Zipes, has
specifically ruled exhaustion of administrative remedies is a
precondition to a Title VII suit, not a jurisdictional
prerequisite. Ameritech Ben. Plan Comm., 220 F.3d at 819;
Gibson, 201 F.3d at 994. Magnolia conflicts with the Seventh
Circuit's broad interpretation of Zipes.
Thus, based on the United States Supreme Court decision in
Zipes, the statutory structure of Title VII, policy
considerations, and Seventh Circuit precedent, this Court holds
that neither good faith conciliation, nor conciliation generally,
are jurisdictional prerequisites to the EEOC filing suit in
district court. Even though conciliation is not a jurisdictional
prerequisite, the defendant may still attack the sufficiency of
the EEOC's conciliation as an affirmative defense to the EEOC's
claim. Crownline remains free to file a motion for summary
judgment on the issue.
For the foregoing reasons, the Court DENIES Crownline's
motion to dismiss and alternative motion for stay (Doc. 3).
IT IS SO ORDERED.