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Equal Employment Opportunity Commission v. Western Distributing Co.

United States District Court, D. Colorado

November 21, 2016

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
WESTERN DISTRIBUTING COMPANY, a Colorado corporation d/b/a WESTERN DISTRIBUTING TRANSPORTATION CORP., Defendant.

          MEMORANDUM OPINION AND ORDER

          LEWIS T. BABCOCK, JUDGE.

         This is an action under Titles I and V of the Americans with Disabilities Act (“ADA”) of 1990, as amended by the ADA Amendments Act of 2008 and Title I of the Civil Rights Act of 1991. The EEOC alleges that Defendant Western Distributing Company (“Western Distributing”) has unlawfully discriminated on the basis of disability.

         Western Distributing moved this Court to dismiss this case under Rule 12(b)(1), arguing the Court lacks subject matter jurisdiction. (Mot. Dismiss, ECF No. 23). According to Western Distributing, the EEOC failed to reasonably investigate the discrimination charges in its complaint and failed to adequately conciliate before bringing this suit, as required under 42 U.S.C. § 2000e-5(b). The EEOC responds that investigation and conciliation are not jurisdictional requirements and that, in any event, it met those requirements. (Resp. Mot. Dismiss, ECF No. 42.) The EEOC also moved to strike several of Western Distributing's exhibits and some portions of its motion to dismiss, arguing that Western Distributing included materials that are confidential under § 2000e-5(b), which prohibits disclosure of anything “said or done during and as part of” the conciliation process. (Mot. Strike, ECF No. 31).

         I assume, without deciding, that investigation and conciliation are jurisdictional requirements. I conclude that the EEOC met these requirements by (1) investigating the allegations to assess whether there was reasonable cause to believe Western Distributing engaged in discriminatory practices; (2) providing Western Distributing adequate notice of the allegations; and (3) providing Western Distributing opportunity to discuss the allegations. I therefore DENY Western's motion to dismiss. (ECF No. 23.)

         I also GRANT IN PART the EEOC's motion to strike (ECF No. 31) because the filings in question contain materials that are statutorily required to remain confidential under § 2000e-5(b). I do not consider these confidential materials in deciding this motion.

         I. Background

         Western Distributing is a trucking company based in Denver, Colorado, with additional locations throughout Colorado. In August 2009, a former Western Distributing employee, Clinton Kallenbach, filed a charge of discrimination with the EEOC, alleging that Western Distributing discriminated against him based on his disability by terminating him when his leave under the Family Medical Leave Act (FMLA) expired. (Echeveste Aff. ¶ 3, ECF No. 42-1; Ex. A to Echeveste Aff.) After Mr. Kallenbach filed his charge, four other former Western Distributing employees filed similar charges. (Id. ¶¶ 4-8.)

         In August 2011, the EEOC notified Western Distributing that it was expanding its investigation to a “nation-wide class investigation of all facilities owned and or operated by Western Distributing Transportation Corp.” (Ex. F to Echeveste Aff., ECF No. 42-1 at 20.) During the course of its investigation, the EEOC solicited and reviewed position statements for each of the five charging parties, made at least five requests for information from Western Distributing, reviewed the materials it received as a result of those requests, interviewed numerous potential aggrieved individuals, interviewed Western Distributing employees, visited Western Distributing's offices, and gave Western Distributing the opportunity to provide any information it believed was relevant. (Echeveste Aff. ¶ 12, ECF No. 42-1.) Among other information, Western Distributing eventually provided data from April 2009 to July 2014, including employee lists with hire and termination/separation dates and the reason for the termination/separation. (Id. ¶ 14.)

         In December 2014, the EEOC issued amended letters of determination for the five charges, which included the following language:

The Commission . . . finds the Respondent in violation of the ADA because it failed to accommodate Charging Party and other aggrieved employees throughout its facilities. Respondent failed to accommodate individuals with disabilities by, for example, failing to modify job duties or allow transfer to existing positions. The Commission further finds [Western Distributing] in violation of the ADA because it maintains a twelve (12) week policy without allowing for an accommodation under the ADA. This policy affected both Charging Party and other aggrieved employees. Finally, Respondent violated the ADA when it discriminated against individuals with disabilities. In particular, Respondent terminated aggrieved individuals due to their disabilities and discriminated and/or retaliated against individuals who reapplied or attempted to return after having taken leave for injuries or disabilities.

(Exs. G-K to Echeveste Aff., ECF No. 42-1.)

         In the letters of determination, the EEOC invited Western Distributing to participate in the conciliation process. Id. Western Distributing agreed to participate, and the EEOC sent Western Distributing a proposed conciliation agreement. (Echeveste Aff. ¶ 19, ECF No. 42-1.) The parties met at the EEOC's office and exchanged letters. (Id.) In May 2016, the EEOC sent Western Distributing letters informing it that conciliation was “unsuccessful.” (Ex. K to Echeveste Aff., ECF No. 42-1 at 38.)

         The EEOC then filed suit in this Court, raising claims that Western Distributing violated the ADA by (1) failing to accommodate employees with disabilities; (2) taking adverse actions against disabled employees because of their disability, and (3) using discriminatory standards, criteria, or methods of administration. (ECF No. 1.) Western Distributing moved to dismissed the case under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that the EEOC had failed to adequately investigate the case or engage in conciliation, as required under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(b), incorporated into the ADA by 42 U.S.C. § 12117(a). (ECF No. 23.) Western Distributing attached extensive materials related to the conciliation process to its motion.

         II. Analysis

         A. The Rule 12(b)(1) Motion to Dismiss Standard

         “Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). Federal district courts have original jurisdiction over all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. §§ 1331, 1332. “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Since federal courts are courts of limited jurisdiction, there is a presumption against jurisdiction, and the party invoking federal jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         Generally, a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). “First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.” Id. (citation omitted).

         “Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003 (citation omitted). “A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)” without converting the motion to dismiss to a motion for summary judgment. Id.

         Here, Western Distributing's challenge to jurisdiction is a factual attack. I therefore consider materials outside ...


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