The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
The Equal Employment Opportunity Commission ("EEOC" or "the Commission") filed suit against Supervalu and Jewel-Osco (together, "the defendants"), alleging that they failed to provide Patricia Schied ("Schied") with a reasonable accommodation in violation of Title I of the Americans with Disabilities Act of 1990("ADA"), 42 U.S.C. §12101 et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The defendants have moved to dismiss the complaint on the ground that the EEOC failed to make a sufficient effort to resolve the dispute through informal conciliatory means prior to initiating the instant suit. The defendants also contend that the complaint must be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure because the Commission has failed to adequately allege a cause of action under the ADA.
For the reasons explained below, I deny the defendants' motion insofar as it is based on the EEOC's alleged failure to engage in good-faith conciliation efforts; however, I grant the defendants' motion to dismiss insofar as it is predicated on Rule 12(b)(6). The Commission is given twenty days from the date of this order to file an amended complaint.
The defendants' first argument for dismissal is based on the claim that the EEOC failed to make a proper attempt to resolve the dispute informally through conciliation before filing this suit. I disagree.
The EEOC is statutorily required to attempt conciliation with employers when it finds reasonable cause to believe that they have engaged in discrimination. See 42 U.S.C. § 2000e-5(b) ("If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."); see also E.E.O.C. v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir. 1985); E.E.O.C. v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984); EEOC v. First Midwest Bank, N.A., 14 F. Supp. 2d 1028, 1031 (N.D. Ill. 1998).*fn1
The defendants complain that instead of approaching them with a set of terms and conditions, the Commission simply invited them to submit a settlement proposal. The defendants further claim that the Commission rejected their offer for no good reason. Moreover, they contend that "[i]nstead of making a good faith effort to conciliate Schied's charge . . . the EEOC simply lumped it in with a number of other charges for which reasonable cause determinations had been issued and insisted that the [defendants] enter into a global settlement in the millions of dollars." Defs' Mot. to Dismiss at 2. According to the defendants, the EEOC took this tack "despite the fact that the other charges are unrelated to Schied's charge, do not share any common nucleus of facts, and involve different locations, managers, employees and adverse employment actions." Id.
For several reasons, I find the defendants' argument unpersuasive. As an initial matter, the parties have attached exhibits to their briefs to support their factual claims regarding the nature and extent of the EEOC's conciliation efforts. The Commission argues that I may not take these materials into consideration without converting the defendants' 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment. The Commission further claims that I may not consider the motion as one for summary judgment "because it has not been properly filed as such." Defs' Resp. at 4-5. Consequently, the Commission contends that the defendants' motion fails.
In response, the defendants suggest that I am permitted to examine documents outside the pleadings since the conciliation requirement is a jurisdictional prerequisite. By challenging the EEOC's compliance with the requirement, the defendants claim that they have presented a challenge to the court's jurisdiction over the matter. Under Rule 12(b)(1), they point out, the court may look beyond the pleadings without converting the proceeding to a motion for summary judgment. Alternatively, the defendants maintain that I may examine facts beyond the pleadings by deeming their motion as a request that proceedings be stayed until the EEOC has undertaken a proper attempt at conciliation.
It is unnecessary to address these issues here, however, because my ruling would be the same regardless of whether I were permitted to take account of the additional materials submitted by the parties. For one thing, the record before me is too indefinite and uncertain to allow me to meaningfully review the adequacy of the Commission's conciliation efforts. The parties do not clearly indicate whether there are any issues of factual dispute between them. Nor am I confident that the parties have provided me with enough information to accurately assess the adequacy of the Commission's attempts at conciliation. For example, while the defendants have submitted various letters that they exchanged with the Commission pertaining to the resolution of Schied's case, it is unclear whether these documents represent the complete correspondence between the parties. It is also unclear whether other documents besides the parties' correspondence might be relevant to assessing the Commission's conciliation efforts. For its part, the EEOC attaches only a single one-page affidavit, which states that the "Defendants offered to settle the Schied Charge on March 17,2009 for $10,000," EEOC Resp. Br., Ex. A (Aff. of Luis Rodriguez, ¶ 2), and that the "EEOC did not demand millions of dollars to settle that Charge or other Charges or groups of Charges against Defendants." Id. ¶ 3. In short, I am not in a position to adjudge the Commission's efforts on such an indeterminate and spare record.
Yet even if, as the defendants request, I were to decide the motion based on the materials that the parties have submitted, I still would deny the defendants' motion. While the defendants contend that the EEOC peremptorily rebuffed their offer, the evidence, such as it is, suggests otherwise. In its correspondence with the defendants, the EEOC clearly informed the defendants that if they wished to engage in the conciliation process, they should submit a proposal to EEOC within fourteen days. See Defs.' Mot. to Dismiss, Ex. 2 (Letter from John P. Rowe, 12/13/07) ("If Respondent wishes to accept this invitation to participate in conciliation efforts, it may do so at this time by proposing terms for a conciliation agreement; that proposal should be provided to the Commission representative within 14 days of the time of the date of this determination."). The letter repeats the same information just a few lines later, and adds the specific admonition that if the defendants fail to comply, the Commission "may conclude that further conciliation efforts would be futile or nonproductive." Id. ("Should Respondent have further questions regarding the conciliation process or the conciliation terms it would like to propose, we encourage it to contact the assigned Commission representative. Should there be no response from Respondent in 14 days, we may conclude that further conciliation efforts would be futile or nonproductive."). Despite this clear warning, the defendants did not submit their proposal until nearly two years later, on March 17, 2009.
Nor was untimeliness the Commission's only reason for rejecting the defendants' proposal. For example, the EEOC contends that the defendants' offer of $10,000 was unreasonably low in comparison with the amount that might have been recovered if it were to succeed at trial (which the Commission estimated at $300,000 plus pecuniary and compensatory damages). The Commission additionally states that it also rejected the defendants' offer because they included no promise to try to accommodate workers with Schied's disability in the future.
Under these circumstances, I cannot say that the EEOC failed to carry out its obligation to engage in good-faith conciliation efforts. The EEOC invited the defendants to engage in the conciliation process. However, the defendants responded long after the deadline indicated by the Commission. And when the defendants finally did respond, their offer was underwhelming.
For these reasons, I deny the defendants' motion to dismiss to the extent that it is based on the alleged inadequacy of ...