Equal Employment Opportunity Comm'n v. Bloomberg L.P.

751 F.Supp.2d 628

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.BLOOMBERG L.P., Defendant.Jill Patricot, Tanys Lancaster, Janet Loures, Monica Prestia, Marina Kushnir and Maria Mandalakis, Plaintiffs–Intervenors,

v.Bloomberg L.P., Defendant.

No. 07 Civ. 8383 (LAP).

United States District Court, S.D. New York.

Oct. 25, 2010.Opinion Clarifying Prior Opinion on Reconsideration Dec. 2, 2010.

Elizabeth Anne Grossman, Raechel Lee Adams, Robert David Rose, Christine Jiyeun Back, Kam Sau Wong, Konrad Batog, Michelle Anne Caiola, U.S. Equal Employment Opportunity Commission, New York, NY, Justin Mulaire, U.S. Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff.Milo Silberstein, William J. Dealy, Dealy & Silberstein LLP, Richard Alan Roth, The Roth Law Firm, PLLC, New York, NY, for Plaintiffs-Intervenors.Eric S. Dreiband, Hannah M. Breshin, Sherron Thomas McClain, M. Carter Delorme, Stephanie Holmes, Tonya M. Osborne, Jones Day, Washington, DC, Thomas H. Golden, Willkie Farr & Gallagher LLP, Vicki Renee Walcott-Edim, Jones Day, New York, NY, for Defendant.

OPINION & ORDER

LORETTA A. PRESKA, Chief Judge:

Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), filed this action against Defendant Bloomberg L.P. (“Bloomberg”) after several current and former employees had filed charges with the EEOC alleging sex/pregnancy discrimination and retaliation ¹ in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e(k), 2000e–2. (Second Amended Compl. ¶¶ 1, 6.) Generally, the complaint alleged that Bloomberg had discriminated and/or retaliated against the claimants and other similarly situated employees after they had announced their pregnancies and had returned to work following maternity leave. ( Id. ¶¶ 7, 9.)

Before the Court are two motions for summary judgment brought by Bloomberg. One motion seeks summary judgment on all of the EEOC's claims due to the EEOC's alleged failure to conciliate prior to bringing suit. The other seeks summary judgment on claims Bloomberg argues are time-barred. For the reasons set forth below. Defendant's Motion for Summary Judgment for Failure to Conciliate [dkt. no. 103] is DENIED in part and GRANTED in part. Defendant's Motion for Summary Judgment as to Time–Barred Claims [dkt. no. 99] is GRANTED.

I. SUMMARY JUDGMENT STANDARD

Bloomberg will not prevail on its motions for summary judgment unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). Summary judgment is improper “if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party” on a material issue of fact. Vivenzio, 611 F.3d at 106.

II. FAILURE TO CONCILIATE

Although the EEOC is authorized to bring suit to enforce the requirements of Title VII, 42 U.S.C. § 2000e–5(f), Congress requires it to attempt to “eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion,” id. § 2000e–5(b), before filing suit. EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534–35 (2d Cir.1996).

Bloomberg argues that the EEOC's discrimination action should be dismissed because the EEOC failed to meet its statutory obligation to conciliate both the discrimination claims and the retaliation claims before bringing suit. Bloomberg asseverates that the EEOC (1) did not adequately investigate the charges eventually filed in the lawsuit or provide Bloomberg with adequate notice of the charges to allow for sufficient conciliation and (2) failed to make a good faith effort to conciliate the charges. (Bloomberg Br. at 7–9.) ² The Court divides its analysis along these lines.

A. Notice and Investigation

Bloomberg makes its notice and investigation arguments first as to the sex discrimination claims and then as to the retaliation claims. It then argues, in the alternative, that the EEOC's investigation was geographically limited, so the litigation should be so limited as well. The Court addresses these arguments in that order.

1. Discrimination Claims

Bloomberg argues that the EEOC's investigation did not cover all of the claims it eventually filed. ( Id. at 6.) It also argues that because the EEOC provided Bloomberg with insufficient notice that the sex discrimination charges included class-type claims, Bloomberg did not have an opportunity to conciliate such claims. ( Id. at 7.) The Court rejects these arguments.

The EEOC began its investigation after three women, the Charging Parties, filed sex/pregnancy discrimination charges with the EEOC against Bloomberg. (EEOC R.56.1 Statement on Conciliation Claims ¶¶ 1–4 (“EEOC Concil. 56.1”).) The Charging Parties alleged in their EEOC charges of discrimination that Bloomberg discriminated against other women who had returned from maternity leave or had small children at home.³ (Declaration of Kam S. Wong (“Wong Decl.”) Ex. 1–3.) The charges alleged a “pervasive bias” at Bloomberg against pregnant employees or those with newborns. ( Id. Exs. 2–3.)

Following these leads, the EEOC expanded its investigation into Bloomberg's related employment practices more generally. For example, the EEOC asked for and received from Bloomberg information with respect to hundreds of women who had taken maternity leave companywide. ( Id. Ex. 19; EEOC Concil. 56.1 ¶ 182.) It investigated the diminished number of employees who reported to females following their pregnancies. (EEOC Concil. 56.1 ¶ 188.) It interviewed other potential claimants, requested information from Bloomberg about twenty-four other employees who had been on parental leave, received information about fourteen other similar claimants who were demoted, and interviewed those and other potential claimants. ( Id. ¶¶ 10, 188–190, 192–196.)

On June 27, 2007, the EEOC sent Bloomberg a Letter of Determination (“LOD”) regarding the sex/pregnancy discrimination claims, a proposed conciliation agreement, and additional monetary demands from the Charging Parties. ( Id. ¶ 198.) The LOD laid out the Charging Parties' basic allegation:

They were all employees [of Bloomberg] and were well regarded for their work performance ... until they became pregnant and then took maternity leave. Thereafter, job functions and responsibilities were taken away from them, the number of their direct reports was reduced, they were demoted ..., they experienced declines in compensation, and they were otherwise discriminated against ....

(Wong Decl. ¶ 26, at EE00013.) The LOD then set forth examples from the Charging Parties' specific allegations. ( Id. at EE00014.)

The LOD did not stop with the Charging Parties' claims, however. It stated that the “Charging Parties' claims of discrimination on account of sex/pregnancy were echoed by a number of other female current and former employees who have taken maternity leave. EEOC's investigation shows that their careers lost momentum and that they were transferred, displaced, and/or demoted.” ( Id.) Its conclusion was succinct: “The [EEOC] finds cause to believe that [Bloomberg] discriminated against the three Charging Parties and a class of similarly-situated women based on their sex/pregnancy by demoting them, decreasing their compensation, and otherwise discriminating against them in the terms, conditions or privileges of their employment.” ( Id. at EE0G014–15.)

Along with the LOD, the EEOC sent Bloomberg a proposed conciliation agreement. ( Id. Ex. 27; EEOC Concil. 56.1 ¶ 16.) The agreement provided for monetary relief to the Charging Parties,⁴ the creation of a $7.5 million claim fund for class members, and injunctive relief.⁵ (EEOC Concil. 56.1 ¶¶ 17, 20; Wong Decl. Ex. 27.) The proposed agreement defined the class as

female employees who took maternity leave between January 1, 2003 and the present and who lost their job responsibilities, suffered a decline in job level or status, received less compensation, lost a scheduled increase, or otherwise experienced any reduction in the terms and conditions of their employment following notice to Bloomberg of their pregnancy or following their return from maternity leave.( See EEOC Concil. 56.1 ¶ 20.)

Before moving into Bloomberg's primary arguments, the Court dismisses a potential red herring. Bloomberg correctly points out that it was not given notice of the particulars and scope of the EEOC's discrimination investigation. (Bloomberg's Reply 56.1 Statement on Conciliation Claims (“B'berg Concil. Reply”) ¶¶ 187–190, 192–196; Bloomberg Br. at 6–7.) It suggests that the scope of the EEOC's suit here is therefore overbroad. (Bloomberg Br. at 7.)

This argument misapprehends the role notice plays in the conciliation process. Notice of the particulars of the investigation is not required, and the scope of the EEOC's initial investigation does not limit the scope of the lawsuit alleging Title VII violations it may later bring. “Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable.” EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir.2005) (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)). Following such an investigation, the EEOC must give notice of the charges it...