Case 4:04-cv-04244-JPG-PMF Document 1-1 Filed 11/24/2004 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

CROWNLINE BOATS, INC.

)

)

)

_______________D_e_fe_n_d_an_t_s.___________))

CIVIL ACTION NO. (J/-CV .. 'fjtflj j~

COMPLAINT

F1
NOV 2 4 2004

NATURE OF THE ACTION The United States Equal Employment Opportunity Commission (the "Commission") brings this action against Crownline Boats, Inc. ("Crownline" or the "Employer") pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 in order to correct Crownline's unlawful employment practices on the basis of sex and to provide appropriate relief to Leslie Kearney ("Kearney") and a class of similarly situated female employees who were adversely affected by such practices. As alleged in paragraph seven below, the Commission alleges that Crownline discriminated against Kearney and a class of similarly situated females employees because of their sex, female, and pregnancy.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(l) and (3) of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(l) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 198la.

Case 4:04-cv-04244-JPG-PMF Document 1-1 Filed 11/24/2004 Page 2 of 5

2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Southern District of Illinois, Benton Division.

PARTIES

3.

Plaintiff, the Commission, is the agency of the United States of America charged

with the administration, interpretation and enforcement of Title VII, and is expressly authorized

to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(l) and (3).

4. At all relevant times, Defendant Employer has continuously been an Illinois

corporation, doing business in the State of Illinois and the City of West Frankfort, and has

continuously had at least 15 employees.

5. At all relevant times, Crownline has been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

STATEMENT OF CLAIMS

6.

More than thirty days prior to the institution of this lawsuit, Kearney filed a charge

with the Commission alleging violations of Title VII by Crownline. All conditions precedent to

the institution of this lawsuit have been fulfilled.

7.

Since at least February 14, 2003, Crownline engaged in unlawful employment

practices within its facilities in West Frankfort, Illinois, in violation of Section 703(a)(l) of Title

VII, 42 U.S.C. § 2000e-2(a)(l). The unlawful practices include subjecting Kearney and the class

to discrimination based on sex and pregnancy and discharging Kearney because of her pregnancy.

2

Case 4:04-cv-04244-JPG-PMF Document 1-1 Filed 11/24/2004 Page 3 of 5

8.

The effect of the practices complained of in paragraph seven above has been to

deprive Kearney and the class of equal employment opportunities and to otherwise adversely

affect their employee status because of their sex and pregnancy.

9. The unlawful employment practices complained of in paragraph seven above were

intentional and done with malice or reckless indifference to their federally protected rights.

PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Crownline, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in discrimination based on sex and pregnancy. B. Order Crownline to institute and carry out policies, practices, and programs which provide equal employment opportunities for females and which eradicate the effects of its past and present unlawful employment practices based on sex and pregnancy. C. Order Crownline to make whole Kearney and the class by providing appropriate back pay with prejudgment interest in amounts to be determined at trial and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place reinstatement or, in the alternative, an award of front pay. D. Order Crownline to make whole Kearney and the class by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph seven above in amounts to be determined at trial.

3

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E. Order Crownline to make whole Kearney and the class by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph seven above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, embarrassment and humiliation, in amounts to be determined at trial.
F. Order Crownline to pay Kearney and the class punitive damages for its malicious and reckless conduct described in paragraph seven above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs ofthis action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted, ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington D.C. 20507
4

Case 4:04-cv-04244-JPG-PMF Document 1-1 Filed 11/24/2004 Page 5 of 5
Regional Attorney
Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office 101 W. Ohio St., Suite 1900 Indianapolis, IN 46204-4203
Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Louisville Area Office 600 Martin Luther King, Jr. Place Suite 268 Louisville, Kentucky 40202-2285 (502) 582.5440 (Direct Dial) (502) 582.5895 (Facsimile)
5

 
 Case 4:04-cv-04244-JPG-PMF Document 24 Filed 11/03/2005 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS BENTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

1

Plaintiff, V.

)
CNIL ACTION NO.
04-CV-4244-JPG

CROWNLINE BOATS, MC.

)

1

Defendant.

1

CONSENT DECREE The United States Equal Employment Opportunity Commission (the "Commission") commenced this action against Crownlime Boats, Inc. ("Crownlime"), pursuant to Title VII of the Civil Rights Act of 1964 and Title 1 of the Civil Rights Act of 1991 in order to correct Crownline's alleged unlawful employment practices on the basis of sex and pregnancy and to provide appropriate relief to Ms. Lesley Kearney and a class of similarly situated pregnant
female employees. This action was instituted and authorized by Section 706(f)(l) and (3) of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 5 2000e-5(f)(1) and (3) ("Title VII") and Section 102of the Civil Rights Act of 1991,42U.S.C. 5 1981a
The Commission and Crownline stipulate to the Court's jurisdiction over the parties. Further, the Commission and Crownline desire to resolve Civil Action No. 04-CV34244-JPG without the burden and expense of further litigation. As a result, and based on the pleadings and the record as a whole, the Court finds that: [i]the Court hasjurisdiction over the parties and the subject matter of this action; and [ii] the purpose and provisions of Title VII of

EXHIBIT A

Case 4:04-cv-04244-JPG-PMF Document 24 Filed 11/03/2005 Page 2 of 7
the Civil Rights Act of 1964 and Title 1 of the Civil Rights Act of 1991 will be promoted and effectuated by the entry of this Decree.
IT IS THEREFORE ADJUDGED, ORDERED AND DECREED as follows: 1. Crownline expressly denies any wrongdoing whatsoever on the basis of any of the allegations set forth in the underlying charge of discrimination filed with the Commission or on the basis of any of the allegations set forth in the Commission's Complaint. This Consent Decree, being entered with the consent of the Commission, Ms. Lesley Keamey, Ms. Mindy VanFossen and Crownline, shall not constitute an adjudication or fmding on the merits of this case against Crownline. 2. Crownline agrees that it and all of its officers, directors, employees, agents, shareholders, members, representatives and any afliliated entity will not discriminate against nor harass any Crownlime employee on the basis of their sex or pregnancy status. 3. Crownline agrees that there will be no discrimination or retaliation of any k i d against any person because of opposition to any practice made unlawful under Title VII of the Civil Rights Act of 1964 and Title 1 of the Civil Rights Act of 1991, or because of the filing of a charge, the giving of testimony, assistance, or participation in any manner in an investigation, proceeding or hearing under Title VII of the Civil Rights Act of 1964 and Title 1 of the Civil Rights Act of 1991. 4. Crownline shall pay the total sum of Thirty Five Thousand Dollars ($35,000.00) to Lesley Keamey and Mindy VanFossen apportioned and allocated in the following amounts: (a) Lesley Keamey: Crownline shall pay to Lesley Kearney the sum of $22,500.00,
of which the sum of $7,480.00 shall be allocated to reimbursement for lost wages for the period of February 17,2003 through June 14,2003, and from which Crownline shall make all apvlicable payroll deductions and withholdings. The remainder ($15,020.00) shki be allocated to claims for non-wage related damages, for which Crownline shall issue an IRS Form 1099. Leslie Keamey

Case 4:04-cv-04244-JPG-PMF Document 24 Filed 11/03/2005 Page 3 of 7
shall remain responsible for payment of all applicable federal and state taxes with respect to the payment made herein. Within ten (10) days of the entry of this Consent Decress, Cmwnline shall effect payment by issuing check(s) by certified mail in the amounts specified made payable to Leslie Keamey and addressed to Leslie Keamey at the following address: 9781 Bessie Road, Benton, Illinois 62812.
@) Mindy VanFossen: Crownline shall pay to Mindy VanFossen the sum of $12,500.00, of which the sum of $3,475.50 shall be allocated to reimbursement for lost wages for the period of May 1,2003 through June 28,2003, and from which Cmwnline shall make all applicable payroll deductions and withholdings. The remainder ($9,024.50) shall be allocated to claims for non-wage related damages, for which Crownlime shall issue an IRS Form 1099. Mindy VanFossen shall remain responsible for payment of all applicable federal and state taxes with respect to the payment made herein. Within ten (10) days of the entry of this Consent Decress, Crownline shall effect payment by issuing check(s) by certified mail in the amounts specified made payable to Mindy VanFossen and addressed to Mindy VanFossen at the following address: 807 E. Main Street, Christopher, Illinois 62822.
5. Crownliine shall mail a copy of the checks and proof of its delivery (bv certified
mail receipt) to Laurie A. Young (or her successor), Regional Attorney, Equal Employment
Opportunity Commission, Indianapolis District Office, 101 West Ohio St., Suite 1900,
Indianapolis, Indiana 46204-4203, within thirty (30) days of mailing.
6. The term of this Decree shall be for twenty four months (24) months from the
date of the execution of this Consent Decree.
7. Crownline agrees to submit periodic reports to the Commission detailing its
compliance with this Decree. Crownline agrees to submit four (4) semi-annual reports during
the term of this Decree. The fust report shall be due seven (7) months after the execution of this
decree, and the subsequent reports shall be mailed to the Commission no later than the final day
of the month of each sixth month after the preceding report and continuingthroughout the term
of years covered by the Decree.
a. Each semi-annual report shall include the following information for the six

Case 4:04-cv-04244-JPG-PMF Document 24 Filed 11/03/2005 Page 4 of 7
(6) month period preceding the report: [i] the name, home address, and home telephone number of any Crownline employee filing an internal or external complaint or grievance alleging pregnancy discrimination; and [ii] the nature of the complaint and the corrective action taken.
b. All reports shall be directed to Laurie A. Young (or her successor), Regional Attorney, at the address specified in paragraph 5.
8. Within ninety (90) days of the date of execution of this Decree, Crownline shall provide a training program to all of its supervisors and managers regarding the provisions of Title VII of the Civil Rights Act as it pertainsto sex and pregnancy discrimination in the work place. This training program shall include an explanation of the prohibition against retaliation for those employees reporting sex or pregnancy discrimination. Thirty (30) days before the training, Crownline shall provide: [i] notice to the Commission of the date, time, and place of the training; [ii] s h d send to the Commission a copy of the training program and all written materials, if any, to be used; and [iii] shall provide the Commission with a roster of all employees who will receive the training. The Commission may provide reasonable input on the content of the training but shall do so no later than ten (10) days prior to the training.
Upon completion of the training, Crownline shall certify to the Commissionthe specific training that was undertaken and shall provide the Commission with a roster of all employees who received the training. All reports shall be sent to the attention of Laurie A. Young, Regional Attorney, at the address specified in paragraph 5.
9. Crownline agrees that the EEOC may review compliance with this Decree. As part of such review and after making reasonable arrangements, the EEOC may: inspect Crownline's premises; interview its employees with management employee interviews

Case 4:04-cv-04244-JPG-PMF Document 24 Filed 11/03/2005 Page 5 of 7
conducted in the presence of an authorized company representative or Crownline's counsel; and examine and copy pertinent documents.
10. In the event that the EEOC determines that a violation of this Decree has occurred, it will, prior to exercising any remedy provided by law, provide written notice to Crownline and its attorney specifically identifying the alleged violation(s). Crownline will have thirty (30) days or any additional period which may be agreed to by the parties in which to investigate and respond to the allegation. Thereafter, the parties will have a period of thirty (30) days, or any such additional period as may be agreed upon by them, in which to negotiate and confer regarding such allegation before the Commission exercises any remedy provided by law.
11. Crownline shall post the Notice attached hereto as Appendix A. The Notice shall be placed within a conspicuousarea where it shall be visible to all employees for the duration of the term of the Consent Decree.
12. The Commission and Crownline shall each bear its own costs and attorney fees. 13. The EEOC, Ms. Lesley Kearney and Ms. Mindy VanFossen shall l l l y and forever release and discharge Crownline, its successors and assigns, including present and former directors, officers, employees, and agents &om any alleged claim or obligation based on the allegations of pregnancy discrimination in violation of Title VII of the Civil Rights Act 1964, which was or could have been raised in Civil Action No. 04-CV-4244-JPG, provided that Crownline complies with all provisions of this Decree during the pendency of this Decree. Ms. Lesley Kearney and Ms. Mindy VanFossen, having been given an opportunity to consult with their own legal counsel, further agree to be bound by the terms and conditions of the settlement agreements separately executed by each of them.

Case 4:04-cv-04244-JPG-PMF Document 24 Filed 11/03/2005 Page 6 of 7

14. RETENTION OF JURISDICTION BY COURT: The Court will retain jurisdiction of this cause throughout the duration of this Decree for purposes of monitoring compliance with this Decree and entry of such further orders as may be necessary or appropriate.

Date

u

This Consent Decree is approved and consented to by the following authorized

representatives of the parties:

Kenneth W. Brown Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Louisville Area 0 Dr. Martin Luther

If3 -//-a5
Date

COPIES TO: Kenneth W. Brown Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Louisville Area Office, Suite 268 Dr. Martin Luther King Jr. Place Louisville, Kentucky 40202-2285 Tel. (502) 582-5440 Fax (502) 582-5437

lo- 3 - o r
Date
Mark S. Schuver Deanna L. Litzenburg Mathis, Marifian, Richter & Grandy, LTD 23 Public Square, Suite 300 P.O. Box 307 Belleville, Illinois 62222-0307 Tel. (618) 234-9800 Fax (618) 234-9786 Attorneys for Crownline Boats, Inc.

Case 4:04-cv-04244-JPG-PMF Document 24 Filed 11/03/2005 Page 7 of 7
EMPLOYEE NOTICE
Posted Pursuant to an Agreement with the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Louisville Area Ofice
NOTICE OF NON-DISCRIMINATION POLICY
This Notice is being distributed and posted by agreement between Crownline Boats, Inc. and the United States Equal Employment Opportunity Commission (EEOC).
Federal law requires that there be no discrimination nor harassment against any employee or applicant for employment because of the employee's race, color, religion, sex, national origin, age (over 40), disability or pregnancy status.
Federal law also prohibits employers from discriminating against employees on the basis of gender in all aspects of employment, including, but not limited to, hiring, promotion, discharge, pay, job training and fringe benefits.
Crownlime Boats Inc. supports and will comply with such Federal law in all respects and will not take any actions against employees because they have exercised their rights, reported an alleged violation under the law, or have given testimony, assisted or participated in any investigation, proceeding or hearing conducted by the U. S. Equal Employment Opportunity Commission.
An employee has the right, and is encouraged to exercise that right, to report allegations of employment discrimination in the workplace. In accordance with Crownline's Employer Policy Manual, any employee who feels that helshe has been discriminated against should report any such incident to their department Director or the Manager or Director of the Human Resources Department, who can be reached at (618) 937-6426. An employee may contact the U. S. Equal Employment Opportunity Commission for the purpose of filing a charge of employment discrimination.
Questions concerning this notice may be addressed to: Equal Employment Opportunity Commission 101 W. Ohio St., Suite 1900 Indianapolis, Indiana 46204-4203 Telephone: (317) 226-7212 EEOC 800 # 1-800-669-4000 TDD (317) 226-4162

 
 E.E.O.C. v. Crownline Boats, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 1618809 Only the Westlaw citation is currently available.
United States District Court, S.D. Illinois.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
CROWNLINE BOATS, INC., Defendant.
No. 04-CV-4244-JPG. | July 5, 2005.
Attorneys and Law Firms
Kenneth W. Brown, U.S. Equal Employment Opportunity Commission, Louisville, KY, Laurie A. Young, Michelle Eisele, Indianapolis District Office, Indianapolis, IN, for Plaintiff.
Mark S. Schuver, Deanna Leigh Litzenburg, Mathis, Marifian et al., Belleville, IL, for Defendant.
Opinion
AMENDED MEMORANDUM AND ORDER
GILBERT, J.
*1 This matter comes before the Court on defendant Crownline Boats Inc.’s (“Crownline”) motion to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(1) and alternative motion for stay (Doc. 3). Plaintiff Equal Employment Opportunity Commission (EEOC) has responded to the motion (Doc. 6), and Crownline has replied to the EEOC’s response (Doc. 10).
I. Alleged Facts In order to decide this motion, the Court only needs to consider basic facts alleged by the parties. Leslie Kearney, a former employee of Crownline, was discharged on February 14, 2003. Crownline’s letter of termination stated Kearney could no longer perform the essential functions of her job due to the “undue risk of working in chemical exposure with [Kearney’s] pregnancy-related condition.” Kearney alleges Crownline had a policy of not allowing pregnant women to work in the Lamination Department, the department in which Kearney was working when she was discharged. On April 21, 2003, Kearney filed a charge with the EEOC alleging that Crownline discharged her based on sex, specifically pregnancy, in violation of Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a)(1).
Around June 19, 2003, Crownline tendered to Kearney an offer to return to work with full reinstatement and seniority, but Kearney chose to wait until the birth of her child before returning to work on September 15, 2003. On August 11, 2003, Crownline informed the EEOC that Crownline voluntarily instituted new policies and procedures concerning its pregnant employees in order to address the EEOC’s concerns.
On December 16, 2003, the EEOC issued its Letter of Determination stating it had reasonable cause to believe Crownline discriminated against Kearney and a class of Crownline employees because of sex, pregnancy specifically. The Letter of Determination also asked Crownline to take part in conciliation efforts by proposing terms for a conciliation agreement. Crownline shortly responded by setting forth an initial offer of an agreement not to terminate any employee because of her pregnancy and an agreement to refrain from engaging in future unlawful employment acts. The EEOC responded with an oral conciliation demand of $250,000 in back pay and other make whole relief for other class members, as well as a demand that Crownline institute training, posting and a policy change.
1

E.E.O.C. v. Crownline Boats, Inc., Not Reported in F.Supp.2d (2005)
Crownline made an oral counteroffer on February 6, 2004, which included back pay for Kearney. On February 18, 2004, Crownline offered a written counteroffer of $4,338.57 as full back pay for Kearney, less any amount she received in the interim. Further, Crownline refused to make a settlement offer regarding any other class members nor did it comment on the EEOC’s training and policy change requests. After Crownline’s written counteroffer, the EEOC issued a letter stating the conciliation efforts had been unsuccessful.
II. Procedural History On November 24, 2004, the EEOC then filed a complaint with this Court pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. The EEOC alleges Crownline has violated Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), specifically, because Crownline discharged Kearney and others because of sex, in particular, pregnancy. The EEOC has requested a permanent injunction enjoining Crownline from engaging in discrimination based on sex and pregnancy, an order for Crownline to remedy past and present violations of Title VII by instituting policies and programs to provide equal employment opportunities for females, an order for Crownline to make whole Kearney and the class, and other appropriate relief. Crownline subsequently filed this motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and alternative motion for stay.
*2 Crownline argues this motion to dismiss for lack of subject matter jurisdiction should be granted because the EEOC has not attempted good faith conciliation efforts with Crownline and that Crownline was ready, willing, and able to conciliate at all times. By bringing this motion under Federal Rule of Civil Procedure 12(b)(1), Crownline assumes that good faith conciliation is a jurisdictional prerequisite, which must be attempted before this Court has authority to hear this action. The EEOC has responded to Crownline’s motion to dismiss asserting that it has attempted good faith conciliation. The EEOC points out in a footnote that conciliation is not a jurisdictional prerequisite, but nevertheless alternatively argues that it has attempted good faith conciliation and Crownline’s motion should be denied, regardless.
Crownline replied to the EEOC’s response. Crownline further argues the EEOC has admitted it made no effort to conciliate the class claim, and the EEOC has conceded that it failed to satisfy its statutory obligation of conciliation with Kearney.
III. Analysis Although Crownline asks the Court to dismiss the EEOC’s complaint for lack of subject matter jurisdiction because the EEOC has failed to attempt good faith conciliation efforts, the Court finds it unnecessary to determine the sufficiency of the conciliation at this time. Neither good faith conciliation, nor conciliation in general, are jurisdictional prerequisites to this Court’s authority over the matter. The Seventh Circuit Court of Appeals has not stated directly whether conciliation is a jurisdictional prerequisite to the EEOC filing a complaint. However, principles of statutory construction, policy analysis, and opinions by the United States Supreme Court and the Seventh Circuit Court of Appeals addressing similar issues guide this Court to the determination that conciliation is not a jurisdictional prerequisite.
Statutory duties and conditions precedent, such as the administrative duty to conciliate, are preconditions to suit. Although the parties and other courts, on occasion, have carelessly referred to preconditions to suit as being jurisdictional in nature, preconditions are altogether different than jurisdictional prerequisites. Preconditions to suit are a duty that must be performed before a suit can be filed, but when the duty is not performed, the court still has jurisdiction to entertain the claim.
In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the United States Supreme Court distinguished preconditions to suit from jurisdictional prerequisites when deciding whether the statutory time limit for filing charges under Title VII is a jurisdictional prerequisite to suit. Based on the construction of Title VII, the congressional policy underlying Title VII, and prior United States Supreme Court opinions, the Court held it was not a jurisdictional prerequisite. Id. at 393. Zipes has been expanded by the Seventh Circuit Court of Appeals. The Seventh Circuit has held exhaustion of administrative remedies in general, like the statutory time limit in Zipes, is a precondition to suit. See Ameritech Ben. Plan Comm. v. Communication Workers of Am., 220 F.3d 814, 819 (7th Cir.2000); Gibson v. West, 201 F.3d 990, 994 (7th Cir.2000).
*3 For the same reasons used by the United States Supreme Court in Zipes, this Court finds that good faith conciliation also is not a jurisdictional prerequisite to suit, but is merely a precondition to suit. The structure of Title VII, the policy of the conciliation requirement, and Seventh Circuit Court of Appeals opinions indicate conciliation is not a jurisdictional prerequisite. First, the section conferring jurisdiction under Title VII, 42 U.S.C. § 2000e-5(f)(3),1 contains no reference to the
2

E.E.O.C. v. Crownline Boats, Inc., Not Reported in F.Supp.2d (2005)
statutory conciliation requirement. The provision referencing the duty to conciliate, 42 U.S.C. § 2000e-5(b),2 is contained in an entirely separate provision, which makes no mention of the jurisdiction of the district courts. Thus, Title VII’s structure indicates the conciliation requirement was not intended to be a jurisdictional prerequisite as it is not included with the other jurisdictional prerequisites of § 2000e-5(f)(3).
Second, the policy of the conciliation requirement is not undermined by holding that conciliation is not a jurisdictional prerequisite to suit. The conciliation requirement is present to promote swift resolution of Title VII violations rather than a resort to lengthy litigation. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). When the need to challenge the sufficiency of the EEOC’s conciliation attempt arises, a Title VII defendant can still plead and prove the EEOC’s failure to conciliate as an affirmative defense. See e.g. EEOC v. Zia Co., 582 F.2d 527 (10th Cir.1978); See Belgrave v. Pena 254 F.3d 384, 386 (2d Cir.2001); See Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999) (citing Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997)). If the sufficiency of conciliation is not challenged as an affirmative defense, the Court still has jurisdiction to hear the cause. See id. Alternatively, a successful attack on the conciliation requirement will dispose of the case before a trial on the merits. Thus, despite the unavailability of a jurisdictional attack, the sufficiency of conciliation can still be attacked by other methods furthering the policy of conciliation.
Finally, as in Zipes, case law guides this Court as well. In EEOC v. Zia Co., the court held that a lack of good faith conciliation does not bar the court from having jurisdiction over the cause of action. 582 F.2d at 533. In so holding, the court stated that the inquiry into the good faith conciliation attempt is relevant when deciding whether the court should continue entertaining the claim or whether the court should stay the proceedings and allow the parties to attempt good faith conciliation. Id. However, good faith conciliation is not relevant to determining the court’s power over the action. Id. Further, Zia has been cited with approval by the Seventh Circuit Court of Appeals for other rules of law contained in the opinion, and it has been cited by several of the cases in the parties’ briefs. See e.g. EEOC v. Elgin Teachers Ass’n, 27 F.3d 292, 294 (7th Cir.1994); EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1042 (7th Cir.1982); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101-1102 (6th Cir.1984).
*4 Before Zia was decided, the Seventh Circuit Court of Appeals had already stated, “[C]onciliation efforts by the EEOC are not jurisdictional prerequisites to a judicial action.” Flowers v. Local No. 6, Laborers Int’l Union, 431 F.2d 205, 207 (1970). Although the issue in Flowers was whether the individual complainant could file suit in federal court when the EEOC has not attempted conciliation, the Seventh Circuit did not qualify nor limit its holding to individual private causes of action. Further, a recent opinion from the Northern District of Illinois has held conciliation is not a jurisdictional prerequisite for the EEOC to file in court. EEOC v. Heart of America, 2003 WL 22764662, 1 (N.D.Ill.2003). In Heart of America, the court held Rule 12(b)(1) was not the proper method to challenge the EEOC’s conciliation efforts. Id.; See also EEOC v. Sears Roebuck & Co., 504 F.Supp. 241, 262 (N.D.Ill.1980) (“The sufficiency of the conciliation effort presents a question of whether the court should stay the proceeding for further conciliation, not whether it has jurisdiction over the cause”).
The Court now turns to the Northern District of Illinois and other circuit court opinions which are cited in the parties’ briefs. Most of the opinions state conciliation is a statutory duty, but they do not convince this Court that conciliation is a jurisdictional prerequisite. Crownline cites EEOC v. First Midwest Bank, 14 F.Supp.2d 1028, 1031 (N.D.Ill.1998), for the propositions that the EEOC is statutorily obligated to attempt conciliation and that the EEOC can file in court only after it is unable to successfully conciliate (Crownline characterizes it as a “condition precedent”). Id. Crownline is correct that the EEOC is statutorily obligated to attempt conciliation, but that precondition to suit is not akin to a jurisdictional prerequisite. First Midwest never used the term jurisdiction in its analysis.
Likewise, in EEOC v. Keco Indus., Inc., the court stated the EEOC can file in court only after it is unable to successfully conciliate, but does not say it is a jurisdictional failure if the EEOC does not conciliate. 748 F.2d at 1101. Further, the court in Keco considered the conciliation of the parties when considering the district court’s grant of a motion for summary judgment. Id. at 1099. The court’s subject matter jurisdiction never was challenged. Crownline and several appellate court cases state conciliation is a statutory duty, prerequisite to suit, or condition precedent to suit; however, as noted above, the cases do not state conciliation is a jurisdictional prerequisite. Jurisdictional prerequisites are not the same as preconditions to suit.
Finally, Crownline cites EEOC v. Magnolia Elec. Power Ass’n, 635 F.2d 375, 378 (5th Cir.1981), which concluded the EEOC’s failure to conciliate in good faith deprives the court of subject matter jurisdiction. The court wrote the opinion in Magnolia before Zipes was decided. Consequently, Magnolia did not have the opportunity to consider the United States Supreme Court’s ruling on jurisdictional prerequisites in Zipes. Magnolia precisely states, “[T]he EEOC’s failure to follow [administrative] procedures concerning a respondent deprives a federal district court of subject matter jurisdiction in a suit by the EEOC against that respondent.” Id. The Seventh Circuit, in cases following the Supreme Court’s holding in Zipes, has
3

E.E.O.C. v. Crownline Boats, Inc., Not Reported in F.Supp.2d (2005)
specifically ruled exhaustion of administrative remedies is a precondition to a Title VII suit, not a jurisdictional prerequisite. Ameritech Ben. Plan Comm., 220 F.3d at 819; Gibson, 201 F.3d at 994. Magnolia conflicts with the Seventh Circuit’s broad interpretation of Zipes.
*5 Thus, based on the United States Supreme Court decision in Zipes, the statutory structure of Title VII, policy considerations, and Seventh Circuit precedent, this Court holds that neither good faith conciliation, nor conciliation generally, are jurisdictional prerequisites to the EEOC filing suit in district court. Even though conciliation is not a jurisdictional prerequisite, the defendant may still attack the sufficiency of the EEOC’s conciliation as an affirmative defense to the EEOC’s claim. Crownline remains free to file a motion for summary judgment on the issue.

IV. Conclusion For the foregoing reasons, the Court DENIES Crownline’s motion to dismiss and alternative motion for stay (Doc. 3).
IT IS SO ORDERED.

Footnotes

1

Specifically, 42 U.S.C. § 2000e-5(f)(3) states in pertinent part:

Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have

jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which

the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records

relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have

worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action

may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406

of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which

the action might have been brought.

2

In pertinent part, 42 U.S.C. § 2000e-5(b) states:

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that

an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other

training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission

shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on

such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the

“respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and

shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the

Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is

true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In

determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by

State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and

(d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is

true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of

conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public

by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the

persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or

imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as

possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable

under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the

charge.

4

 
 E.E.O.C. v. Crownline Boats, Inc., Not Reported in F.Supp.2d (2005) 2005 WL 1420750
Only the Westlaw citation is currently available. United States District Court, S.D. Illinois.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
CROWNLINE BOATS, INC., Defendant. No. 04-CV-4244-JPG. | June 14, 2005.
See 2005 WL 1618809.
1

 
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CJRA_D, CLOSED
U.S. District Court Southern District of Illinois (Benton) CIVIL DOCKET FOR CASE #: 4:04-cv-04244-JPG-PMF

Equal Employment Opportunity Commission v. Crownline Boats Inc Assigned to: Judge J. Phil Gilbert Referred to: Mag Judge Philip M. Frazier Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 11/24/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Kenneth W. Brown U.S. Equal Employment Opportunity Commission 600 Martin Luther King, Jr. Place, Suite 268 Louisville, KY 40202-2285 5025825440 Email: kenneth.brown@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie A. Young Indianapolis District Office 101 W. Ohio Street, Suite 1900 Indianapolis, IN 46204-4203 ATTORNEY TO BE NOTICED

Michelle Eisele Indianapolis District Office 101 W. Ohio Street, Suite 1900 Indianapolis, IN 46204-4203 ATTORNEY TO BE NOTICED

V. Defendant Crownline Boats Inc

represented by Mark S. Schuver Mathis, Marifian et al. 23 Public Square Suite 300, P.O. Box 307 Belleville, IL 62222 618-234-9800 Fax: 618-234-9786 Email: mschuver@mmrg.com

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deanna Leigh Litzenburg Mathis, Marifian et al. 23 Public Square Suite 300, P.O. Box 307 Belleville, IL 62222 618-234-9800 Fax: 618-234-9786 Email: dlitzenburg@mmrg.com ATTORNEY TO BE NOTICED

Date Filed 11/24/2004 11/24/2004 01/10/2005 01/10/2005 01/13/2005 02/14/2005
02/15/2005

#

Docket Text

1 COMPLAINT against Crownline Boats Inc , filed by Equal Employment Opportunity Commission. (Attachments: # 1 civil cover sheet)(dka, ) (Entered: 11/29/2004)
2 Summons Issued as to Crownline Boats Inc. (dka, ) (Entered: 11/29/2004)
3 MOTION to Dismiss and Alternative Motion for Stay by Crownline Boats Inc. Responses due by 2/9/2005 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Errata F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Schuver, Mark) (Entered: 01/10/2005)
4 MEMORANDUM in Support re 3 MOTION to Dismiss and Alternative Motion for Stay filed by Crownline Boats Inc. (Schuver, Mark) (Entered: 01/10/2005)
5 CJRA TRACK B assigned: Final Pretrial Conference set for 12/8/2005 09:30 AM in Benton Court House before Judge J. Phil Gilbert. Jury Trial set for 12/19/2005 09:00 AM in Benton Court House before Judge J. Phil Gilbert.(dka, ) (Entered: 01/13/2005)
6 RESPONSE to Motion re 3 MOTION to Dismiss and Alternative Motion for Stay filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Employment Application# 2 Exhibit Feb 21, 03 Ltr# 3 Exhibit Charge of Discrimination# 4 Exhibit Akbar Affidavit# 5 Exhibit Jun 2, 03 Ltr# 6 Exhibit Jun 17, 03 Ltr# 7 Exhibit Jun 19, 03 Ltr# 8 Exhibit Aug 11, 03 Ltr# 9 Errata Sep 29, 03 Ltr# 10 Exhibit Oct 30, 03 Ltr# 11 Exhibit Oct 31, 03 Ltr# 12 Exhibit Ltr of Determination# 13 Exhibit Dec 24, 03 Ltr# 14 Errata Feb 18, 04 Ltr# 15 Exhibit Notice of Conciliation Failure# 16 Exhibit Mar 31, 04 Ltr# (17) (18) Exhibit 2; Attachment 18 added on 2/22/2005 and Notice of Manual Filing (17) deleted (dka, ). Modified on 2/22/2005 (dka, ). (Entered: 02/14/2005)
7 NOTICE OF ERRORS AND/OR DEFICIENCIES re 6 Response to Motion,, filed by Equal Employment Opportunity Commission,. See attached document for specifics (dka, ) (Entered: 02/15/2005)

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02/24/2005
02/24/2005 02/28/2005 03/02/2005
03/18/2005
04/20/2005
06/14/2005 06/15/2005 06/28/2005 06/28/2005 07/05/2005 07/05/2005

8 MINUTE ORDER by Judge Philip M. Frazier entered 2/24/2005 setting a Status and Scheduling Conference for 3/2/2005 09:30 AM via telephone conference call before Mag Judge Philip M. Frazier. Counsel for plaintiff is responsible for placing the call to the Court (618-439-7750) and opposing counsel. Lead counsel must participate in the conference. (non-document entry) (krm) (Entered: 02/24/2005)
9 ORDER REGARDING DISCOVERY. Signed by Judge Philip M. Frazier on 2/24/2005. (krm) (Entered: 02/24/2005)
10 REPLY to Response to Motion re 3 MOTION to Dismiss and Alternative Motion for Stay filed by Crownline Boats Inc. (Schuver, Mark) (Entered: 02/28/2005)
11 Minute Entry for proceedings held before Judge Philip M. Frazier: Status Conference held on 3/2/2005. Case is elevated to a Track D with presumptive trial month of July, 2006. Counsel to submit Joint Report. Settlement Conference set for 7/19/2005, 9:15 AM before Judge Frazier in Benton. Separate order to enter. (Court Reporter N/A.) (krm) (Entered: 03/02/2005)
13 ORDER FOR AND NOTICE OF SETTLEMENT CONFERENCE: Settlement Conference set for 7/19/2005 at 9:15 AM in Benton Courthouse, Courtroom No. 2, 301 West Main St., Benton, Illinois, before Mag. Judge Philip M. Frazier. Settlement statements of the parties are to be SUBMITTED ex parte, under seal, in an envelope marked "Confidential" and mailed to Judge Frazier on or before 7/12/05, and are NOT to be electronically or manually filed with the U.S. Clerk's Office as they are not part of the official court record. Signed by Judge Philip M. Frazier on 3/18/05. (mta) (Entered: 03/18/2005)
14 SCHEDULING AND DISCOVERY ORDER: Approving Joint Report of Parties. Discovery cutoff set for 3/7/2006. Dispositive Motions to be filed by 3/21/2006. Final Pretrial Conference set for 6/29/2006 09:30 AM in Benton Court House before Judge J. Phil Gilbert. Jury Trial set for 7/10/2006 09:00 AM in Benton Court House before Judge J. Phil Gilbert. Signed by Judge Philip M. Frazier on 4/20/2005. (Attachments: # 1 Joint Report of Parties)(krm) (Entered: 04/20/2005)
15 VACATED PER ORDER AT DOC 19 - MEMORANDUM AND OPINION/ORDER denying 3 MOTION to Dismiss and Alternative Motion for Stay filed by Crownline Boats Inc. Signed by Judge J. Phil Gilbert on 6/14/05. (dka, ) Modified on 7/6/2005 (dka, ). (Entered: 06/14/2005)
16 NOTICE of Appearance by Deanna Leigh Litzenburg on behalf of Crownline Boats Inc (Litzenburg, Deanna) (Entered: 06/15/2005)
17 MOTION for Reconsideration re 15 Memorandum & Opinion, Terminate Motions by Crownline Boats Inc. (Schuver, Mark) (Entered: 06/28/2005)
18 MEMORANDUM in Support re 17 MOTION for Reconsideration re 15 Memorandum & Opinion, Terminate Motions filed by Crownline Boats Inc. (Schuver, Mark) (Entered: 06/28/2005)
19 ORDER granting 17 Motion for Reconsideration; vacating 15 Memorandum & Opinion . Signed by Judge J. Phil Gilbert on 7/5/05. (dka, ) (Entered: 07/06/2005)
20 AMENDED MEMORANDUM AND OPINION/ORDER denying 3 motion to dismiss and alternative motion for stay. Signed by Judge J. Phil Gilbert on 7/5/05.

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07/26/2005 10/31/2005 11/01/2005 11/03/2005

(dka, ) (Entered: 07/06/2005)
21 ORDER STRIKING and CONTINUING GENERALLY the Settlement Conference set for 7/19/05 @ 9:15 a.m. before Judge Frazier and STRIKING the date for submitting settlement statements of 7/12/05. Signed by Judge Philip M. Frazier on 7/19/05. (mta) (Entered: 07/26/2005)
22 MOTION for Settlement Entry of Consent Decree & Dismissal of Suit by Crownline Boats Inc. (Attachments: # 1 Exhibit A)(Schuver, Mark) (Entered: 10/31/2005)
23 NOTICE OF ERRORS AND/OR DEFICIENCIES re 22 Motion for Settlement filed by Crownline Boats Inc,. See attached document for specifics (dka, ) (Entered: 11/01/2005)
24 CONSENT DECREE. Signed by Judge J. Phil Gilbert on 11/3/05. (dka, ) (Entered: 11/03/2005)

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