WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court this morning granted a petition for writ of certiorari in an appeal of a Seventh Circuit U.S. Court of Appeals decision finding that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit (Mach Mining, LLC v. Equal Employment Opportunity Commission, No. 13-1019, U.S. Sup.; See January 2014, Page 23) [lexis.com subscribers may access Supreme Court briefs for this case].
The Equal Employment Opportunity Commission received a charge of discrimination in early 2008 from a woman who claimed that Mach Mining LLC had denied her a job because of her gender. After investigating the charge, the EEOC determined that there was reasonable cause to believe that Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Ill.
In late 2010, the EEOC notified the company of its intention to begin informal conciliation. In September 2011, the EEOC told Mach Mining that it had determined that the conciliation process had been unsuccessful and that further efforts would be futile. The EEOC then filed its complaint in the U.S. District Court for the Southern District of Illinois.
Mach Mining, in its answer, denied unlawful discrimination and asserted several affirmative defenses, including that the suit should be dismissed because the EEOC failed to conciliate in good faith.
Summary Judgment Denied
The EEOC moved for summary judgment solely on the issue of whether, as a matter of law, an alleged failure to conciliate is an affirmative defense to its suit for unlawful discrimination. In denying the EEOC’s motion, the District Court held that the court should evaluate conciliation to the extent needed to “determine whether the EEOC made a sincere and reasonable effort to negotiate.” Because the EEOC had not argued that its efforts were either sincere or reasonable, only that they were not reviewable as a defense to unlawful discrimination, the District Court did not demonstrate what its proposed standard would mean in practice. The District Court followed decisions of other circuits holding that judicial review of conciliation is appropriate in the form of an affirmative defense.
The District Court recognized at the same time that the EEOC’s position had merit and raised arguments not considered by other circuits. As a result, it certified for interlocutory appeal under 28 U.S. Code Section 1292(b) whether and to what extent conciliation is judicially reviewable through an implied affirmative defense. The Seventh Circuit panel accepted the appeal.
The Seventh Circuit panel on Dec. 20, 2013, reversed the District Court’s ruling. It opined that the EEOC is entitled to summary judgment on Mach Mining’s affirmative defense.
“The essence of an affirmative defense is that it assumes the plaintiff can prove its factual allegations. An affirmative defense raises additional facts or legal arguments that defeat liability nonetheless. . . . The wrong claimed by defendant here is purely one of insufficient process. A procedural remedy, such as a short stay to allow the parties to pursue conciliation further, would be tailored to the alleged wrong. Dismissal on the merits, however, would excuse the employer’s (assumed) unlawful discrimination. That would be too final and drastic a remedy for any procedural deficiency in conciliation,” Judge David F. Hamilton wrote for the panel.
Chief Judge Diane P. Wood and Judge Michael S. Kanne joined in the opinion.
High Court Appeal
Mach Mining petitioned the U.S. Supreme Court on Feb. 25. Its question presented is: “Whether and to what extent may a court enforce the EEOC’s mandatory duty to conciliate discrimination claims before filing suit?”
Thomas C. Goldstein of Goldstein & Russell in Washington represents Mach Mining. Solicitor General Donald B. Verrilli Jr. in Washington represents the EEOC.
Eric S. Dreiband of Jones Day in Washington filed an amicus brief on behalf of Retail Litigation Center Inc., Chamber of Commerce of the United States of America and National Federation of Independent Business Small Business Legal Center.
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