PAWD SEAL_sm_white_bg.jpgBy Gerald L. Maatman, Jr. and Rebecca Bjork

The opinion of Judge Mark R. Hornak of the U.S. District Court for the Western District of Pennsylvania, issued on January 22, 2013 in EEOC v. Ruby Tuesday, Inc., No. 09-CV-01330, 2013 U.S. Dist. LEXIS 8268 (W.D. Pa. Jan. 22, 2013), should be required reading for all in-house and law firm attorneys who are faced with the prospect of litigating against the EEOC. The decision is striking in its even-handedness while, at the same time, is sweeping in its indictment of what readers of this blog know to be the EEOC’s “take no prisoners” approach to litigating its cases, particularly pattern or practice cases. This is definitely one to file away and keep for future use. 

In his ruling, Judge Hornak demonstrates an impressive ability to cut through the background noise while ruling on Ruby Tuesday’s motion to dismiss for failure to state a claim under Twombly and Iqbal and for summary judgment on the ground that the EEOC failed to engage in good-faith conciliation. By keying his decision on the motion off of events that took place during only a five-week period (between August 25, 2009, when the EEOC issued a determination finding reasonable cause, and September 30, 2009, when the EEOC filed its lawsuit, proclaiming conciliation to have failed), the Court decided it was time to go back to square one, and to require the EEOC to provide the Defendant with the factual basis for its pattern or practice claims, and engage in true conciliation under the Court’s watchful eye. 

A single employee filed a charge of sex discrimination and retaliation in her employment in one Ruby Tuesday restaurant in Altoona, Pennsylvania. Id. at *4. (Later, the charge was amended to add allegations of age discrimination.) After an investigation, the EEOC found reasonable cause, and also determined that Ruby Tuesday had engaged in a pattern or practice of age discrimination in six of its restaurants in Western Pennsylvania. Id. at *5. The EEOC’s August 25, 2009 Determination Letter gave the defendant only 13 days to respond, and Ruby Tuesday sought a 30-day extension of time, in addition to denying any wrongdoing. The EEOC denied the extension and specified for the first time that it sought a payment of $6,458,375 to conciliate. It also demanded a response from the defendant either accepting that demand or setting forth a “best and final offer” no later than 2:30 pm nine days later, on September 18, 2009 without explaining why such a short response time was necessary (e.g., to avoid expiration of the statute of limitations). Id. at *6, *22. When Ruby Tuesday made a counter-offer on September 15 as to the Charging Party’s individual claim, expressed a willingness to engage in further conciliation, and asked for the factual basis for the EEOC’s pattern or practice allegations, the EEOC refused and filed suit on September 30, 2009, the last day of its fiscal year. Id. at *7, *22-23. 

More than three years of litigation and discovery (including 40 depositions) ensued before Ruby Tuesday filed its motion, in part, under Rule 12(b)(6). The Court concluded that the complaint (which contained bare-bones allegations of age discrimination and disclosed no facts to support any pattern or practice allegations) “falls so substantially short of the minimal level” of notice required by Twombly  and Iqbal that it did not pass muster. Id. at *14. Judge Hornak, however, declined to dismiss the complaint, taking note of the fact that the motion was untimely. Id. at *15. Instead, he ordered the EEOC to file a more definite statement within 30 days, and noted that the “EEOC is specifically cautioned that what it must plead is not a matter within its unilateral determination, and it acts at its peril if it elects to apply only a very narrow interpretation of the scope of the plausible factual predicate that must be pled [given the] . . . thinness of the allegations” of the complaint. Id. at *16 (emphasis in original). The EEOC had steadfastly refused to produce in discovery the statistical basis for its age-based pattern or practice claims, so now, presumably, it must disclose at least some of that information.

As for summary judgment for failure to engage in good faith conciliation, Judge Hornak explained in no uncertain terms that the EEOC had acted unreasonably. He wrote: “It is difficult for the Court to discern how the EEOC’s actions here would indicate a meaningful desire to actually engage in a process of ‘persuasion,’ ‘conference,’ or ‘conciliation.’ . . . By any measure, a demand for the payment of more than $6 million, coupled with nine (9) days to either say ‘yes’ or to make a ‘best and final’ response in these circumstances (which includes . . . a demand for more than a dozen significant affirmative remedial measures) is so devoid of reasonableness as to lead this Court to the conclusion that it was not a meaningful, good faith conciliation effort.” Id. at *21-22. 

This decision should provide a measure of relief to those employers engaging with the EEOC in attempting to not only understand the basis of charges brought against them, but also the foundation for the EEOC’s conciliation demands. Hopefully, it will result in progress and real efforts to resolve such disputes short of costly, protracted litigation.