Equal Emp't Opportunity Comm'n v. Mexico, Civ. No. 15-879 KG/KK

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF NEW MEXICO,DEPARTMENT OF CORRECTIONS, Defendant.

Civ. No. 15-879 KG/KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 27, 2018

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon the parties' Cross Motions for Partial Summary Judgment (Cross Motions), filed on May 30, 2017, and August 31, 2017. (Docs. 220, 270). Each party filed responses and replies, and the matters are now fully briefed. (Docs. 271, 318, 319, and 345). The Cross Motions address whether EEOC satisfied its prerequisites to suit. Having considered the relevant law, briefs, and uncontested evidence, the Court will grant partial summary judgment in favor of EEOC.

A. Background and Uncontested Facts¹

This is an Equal Employment Opportunity Commission (EEOC) enforcement action. It arises from the New Mexico Department of Corrections' (NMDC) alleged failure to promote correctional officers over the age of 40. The pre-litigation proceedings began on August 25, 2010, when Richard Henderson filed an EEOC Charge of Discrimination (Charge) against NMDC. (Doc. 144-1) at 1-2. Henderson alleged Warden Anthony Romero overlooked him for apromotion in favor of a 31-year-old candidate based on "longevity." Id. (Doc. 270) at 5; (Doc. 319) at 2. At the time, Romero was the Warden of Central New Mexico Correctional Facility (CNMCF). Id. Between 2010 and 2013, Robert Tenorio and Paul Martinez also filed age discrimination Charges against NMDC.² Id.

II. The EEOC Investigation

As part of its investigation, EEOC requested:

• Position statements and personnel files relating to Henderson and Tenorio; (Doc. 220-2) at 2; (Doc. 144-5) at 4.

• Information regarding correctional officers who sought promotions to the rank of Lieutenant or above at CNMCF; (Doc. 270) at 6; (Doc. 270-2) at 13.

• A list of all past and current CNMCF employees and supervisors, including the date of hire, current position, and (for former employees) the reason for leaving; (Doc. 270-2) at 23, 26.

• A list of all formal and informal discrimination complaints made by all NMDC employees. (Doc. 270-2) at 4-5.³

EEOC also visited CNMCF on May 11, 2011, and May 8, 2012. (Doc. 220-2) at 2; (Doc. 270-2) at 24, 29. Investigator Jeff Stuhlmann interviewed at least 25 employees about the alleged discrimination and retaliation. (Doc. 220-2) at 2.

In mid 2011, Romero was appointed Deputy Warden of Penitentiary of New Mexico (PNM). (Doc. 270) at 4; (Doc. 319) at 2. Romero subsequently⁴ was promoted to the DeputyDivision Director of NMDC's Adult Prisons Division at the Central Office in Santa Fe. (Doc. 270) at 4; (Doc. 319) at 2; (Doc. 220-2) at 2. As Director, Romero oversaw wardens at all NMDC facilities. (Doc. 220-2) at 3. By a letter dated May 24, 2012, EEOC informed NMDC that it was expanding its investigation to encompass potential age discrimination "against a class of individuals" in "the entire State of New Mexico" (Expansion Letter). (Doc. 270-2) at 40.

Thereafter, EEOC requested a "complete and accurate employee list ... of all [NMDC] employees since January 1, 2010," including the employees' name, contact information, date of hire, position, supervisor, and, if applicable, reason for leaving. (Doc. 220-2) at 2; (Doc. 144-5) at 13. On August 1, 2013, EEOC contacted each individual "to find out whether [they] ... experienced or witnessed any potential age discrimination while ... employed by" NMDC (hereinafter, Solicitation Letter). (Doc. 270-2) at 44. The letter encouraged employees to contact EEOC's investigator if they would like to discuss their work experiences at NMDC. Id. Following the investigation, EEOC concluded that age discrimination occurred in at least five NMDC facilities, including CNMCF and PNM. (Doc. 220-2) at 3.

III. Determination Letters and Conciliation Efforts

On September 13, 2013, EEOC issued reasonable cause determination letters (RCDs) to NMDC regarding the Henderson and Tenorio Charges. (Doc. 270-2) at 46-49. EEOC "determined that there is reasonable cause to believe that [NMDC] violated the ADEA by discriminating against the Charging Part[ies] and other aggrieved individuals" by:

[1] refusing to hire and/or promote individuals because of their age ... [;]

[2] discriminating ... with respect to their terms, conditions, or privileges of employment, including ... creating and/or fostering a hostile work environment, subjecting individualsto discipline because of their age, terminating older individuals' employment, and/or by forcing older individuals to resign and/or retire[;] [and]

[3] discriminating ... for opposing employment practices made unlawful by the ADEA, including ... subjecting the individuals to discipline, refusing to hire and/or promote the individuals, subjecting the individuals to less favorable working conditions, and creating and/or fostering a hostile work environment for individuals who opposed unlawful employment practices.

(Doc. 270-2) at 46-49. The RCDs included an invitation to participate in informal conciliation discussions. (Doc. 270-2) at 47, 49.

EEOC sent NMDC an initial conciliation proposal on April 16, 2014. (Doc. 270-2) at 50. EEOC requested certain policy changes and damages, stating:

There are a total of 16 class members currently identified (including ... Henderson and ... Tenorio) and the following damages are for all identified class members and unidentified class members.

Compensatory Damages:

$1,150,000

Backpay:

$493,368

Attorney Fees:

$16,250

Unidentified Class:

$500,000

(Doc. 270-2) at 50.

NMDC requested clarification on eight issues, including perfected charges of discrimination for each class member and a detailed explanation about damages. (Doc. 270-2) at 51-52. EEOC declined to require individual Charges but provided a break-down of the amount of claimed backpay for each of the 16 identified individuals.⁵ (Doc. 270-2) at 53-54. EEOC also defined the "unidentified class" as "other putative class members who may have been subjected to similar actions of discrimination and retaliation from July 16, 2010 to September 26, 2013 in the correctional facilities statewide." (Doc. 270-2) at 55. EEOC estimated it would be able to identify at least 11 additional aggrieved individuals, "since the discriminatory official ... oversaw all of the correctional facilities statewide." Id.

On July 14, 2014, NMDC declined EEOC's offer to conciliate. (Doc. 270-2) at 70. EEOC sent a revised proposal on September 26, 2014, which contained different estimations regarding damages. (Doc. 270-2) at 72-73. By a letter dated October 7, 2014, NMDC again declined the conciliation offer. (Doc. 270-2) at 132.

IV. Litigation

EEOC filed this lawsuit on September 30, 2015, alleging violations Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Following discovery, EEOC identified 99 additional aggrieved individuals who allegedly experienced discrimination at NMDC between 2009 and 2017. (Doc. 270-1). In some cases, the discrimination occurred after the RCDs were issued on September 26, 2013. (Doc. 270) at 13; (Doc. 319) at 7.

The instant Cross Motions address whether EEOC fulfilled the statutory prerequisites to suit under the ADEA. NMDC argues that EEOC may only bring claims for wrongdoing that was discovered and disclosed during the prelitigation investigation and conciliation period. (Doc. 270). EEOC disagrees and argues it satisfied any duty to investigate or conciliate. (Docs. 220, 319). Resolution of these arguments is determinative of affirmative defenses 1-4 and 8-11. (Doc. 42) at 14-16.

B. Summary Judgment Standard

Summary judgment is appropriate if the moving party shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue is 'genuine' if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003). The party moving for summary judgment bears the initial burden of demonstrating—by reference to pleadings, depositions, answers to interrogatories, admissions, oraffidavits—the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

When considering cross-motions for summary judgment, the Court is "entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts." A. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (internal quotations omitted). In addition, the Court "must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor." United States v. S. Ct. of New Mexico, 839 F.3d 888, 907 (10th Cir. 2016) (internal quotations omitted).

C. Discussion

I. EEOC's Pre-Litigation Requirements.

The ADEA prohibits employers from discriminating or retaliating against employees over 40 on the basis of age. 29 U.S.C. §§ 623(a), (d). Section 626 of the ADEA addresses the prerequisites to an EEOC enforcement action. Specifically, "[b]efore instituting any action under this section, the [EEOC] shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion." 29 U.S.C. §§ 626(b). EEOC must also promptly notify the employer of a Charge of discrimination, if one is filed. See 29 U.S.C. § 626(d)(2); 29 C.F.R. § 1626.11.

The question becomes whether to adopt the requirements set forth in EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 675 (8th Cir. 2012), and EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., 918 F.Supp.22 1171, 1180 (D. Colo. 2013). The court in CRST held that the EEOC may only seek relief on behalf of...