• Case 1:05-cv-04486-NGG-CLP

Document 1-1

• Filed 09/22/2005

Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X

EQUAL EMPLOYMENT OPPORTUN.'''

COMMISSION,

·""· . Plaintiff,

"''O 5 · 4486 Civil Action No. CV

-against-

U.B. DI'IiiS"Tf'1Rl<I\blCl1>l'';~tCrlOiliJR','~~(!QMPLAINT

-H--O--M--E--D--E--P--O--T--U--.S--.A--.-,-I-N--C--.-,'--~-~~~~~~~~~SQEQKP~Y.2.~2O2F00F5I

'

j

?

f.__
J.y T

R

I

A

D~~~FlS L......~ ~

'

• v

J,

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the bases of national origin discrimination and retaliation and to provide appropriate relief to Glenford Edwards ("Charging Party") and a class of similarly situated employees affected by such unlawful practices. As alleged with greater specificity below, the Equal Employment Opportunity Commission alleges that Charging Party and a class of similarly situated employees have been subjected to a hostile work environment by Home Depot U.S.A., Inc. due to their national origin, West Indian. Additionally, Charging Party was discharged in retaliation for complaining about the unlawful discrimination.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. Sections 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(!)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section

• Case 1:05-cv-04486-NGG-CLP

Document 1-1

• Filed 09/22/2005

Page 2 of 6

2000e-5(f)(1) and (3) and 2000e-6 ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. Section 1981a.
2. The alleged unlawful employment practices were and are now being committed within the jurisdiction ofthe United States District Court for the Eastern District of New York.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission ("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 Sections 706(!)(1) and (3) and 707 ofTitle VII, 42 U.S.C. Sections 2000e-5(f)(1) and (3) and 2000e-6. 4. At all relevant times, Defendant Home Depot U.S.A., Inc. has continuously been a corporation doing business in the State of New York and the county of New York, and has continuously had at least fifteen employees. 5. At all relevant times, Defendant Home Depot U.S.A., Inc. has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 70l(b), (g) and (h) ofTitle VII, 42 U.S.C. Sections 2000e(b), (g) and (h).

STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Charging Party filed a charge with the Conunission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
2

• Case 1:05-cv-04486-NGG-CLP

Document 1-1

• Filed 09/22/2005

Page 3 of 6

7. Starting in at least 2000, Defendant has engaged in unlawful employment practices in violation of Section 703 of Title VII, 42 U.S.C. Section 2000e-2. Defendant has subjected Charging Party and a class of similarly situated employees in its store #1225 in Brooklyn, New York, to a hostile work environment on the basis of their national origin, West Indian (including Jamaican, Trinidadian and Guyanese), consisting of, but not limited to, the following:
a. Defendant's managers frequently made offensive remarks to Charging Party such as "go back to Jamaica on the banana boat" and ridiculed him about his Jamaican national origin and accent.
b. Defendant's managers also frequently subjected other West Indian employees to offensive comments, including "why do West Indian people speak so funny and different" and "your kind ofpeople never want to work", and mocked the accents of other West Indian employees.
8. Defendant has engaged in unlawful employment practices in violation of Section 704 of Title VII, 42 U.S.C. Section 2000e~3, in that it retaliated against Charging Party for complaining against the harassment by terminating his employment.
9. The effect of the practices complained of above has been to deprive Charging Party and other similarly situated West Indian employees of equal employment opportunities and otherwise adversely affect their status as employees because of their national origin.
10. The unlawful employment practices complained of above were and are intentional.
11. The unlawful employment practices complained of above were and are done with

3

• Case 1:05-cv-04486-NGG-CLP

Document 1-1

• Filed 09/22/2005

Page 4 of 6

malice or with reckless indifference to the federally protected rights of Charging Party and similarly situated West Indian employees.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in employment practices which discriminate on the bases of national origin and retaliation. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities to West Indian employees and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant to make whole Charging Party and similarly situated West Indian employees by providing appropriate backpay 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, front pay and reinstatement. D. Order Defendant to make whole Charging Party and similarly situated West Indian employees by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, in amounts to be determined at trial. E. Order Defendant to make whole Charging Party and similarly situated West Indian employees by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of above, including pain, suffering and humiliation, in amounts to be determined at trial.

4

• Case 1:05-cv-04486-NGG-CLP

Document 1-1

• Filed 09/22/2005

Page 5 of 6

F. Order Defendant to pay Charging Party and similarly situated West Indian

employees punitive damages for its malicious and reckless conduct described 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 of this action.

5

• Case 1:05-cv-04486-NGG-CLP

Document 1-1

• Filed 09/22/2005

Page 6 of 6

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.

Dated:

September1-"2., 2005 New York, New York

Respectfully submitted,
James L. Lee Deputy General Counsel
Gwendolyn Young Reams Associate General Counsel
Equal Employment Opportunity Commission 1801 L Street, N.W., 71h Floor
U:R W>'shington, DC 507
t -
Elizabe h Grossman (EG 2478) Acting Regional Attorney
~rti~~c~~ ~ 4
Acting Supervisory Trial Attorney
~~
Michael B. Ranis (MR3757) Senior Trial Attorney
New York District Office 33 Whitehall Street, 5" Floor New York, New York 10004 (212) 336-3701 (phone) (212) 336-3623 (facsimile)

6

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
- against -
THE HOME DEPOT U.S.A., INC.,

G? FILED
* 0 U.S. DINISCTRLEICRTKC'SOOUFR'FTICEE.D.~ JUl. J 2007
P.M. _ _- - TIME A.M. _ _- -
MEMORANDUM AND ORDER
1:05-CV-04486-ENV-CLP

Defendant.

---------------------------------------------------------------)(
VITALIANO, D.J. The Equal Employment Opportunity Commission ("EEOC") brings this action against
defendant The Home Depot U.S.A., Inc. ("Home Depot") alleging that it engaged in employment discrimination against Glenford Edwards ("Edwards"), and a class of similarly situated employees, on the basis of national origin in violation of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a. Home Depot now moves for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, or, in the alternative, for a 60-day stay of proceedings to permit the parties to conduct further conciliation. For the reasons set forth below, Home Depot's motion for partial summary judgment is denied, but its request for alternative relief in the form of a 60-day stay of proceedings is granted.

I. Factual Background The facts essential to a determination of this motion are undisputed. Edwards, a black male of Jamaican descent, began working for Home Depot as an hourly sales associate in 1997,

but, in January 2003, was tenninated from its Hamilton Avenue, Brooklyn location after he was
observed using a false scanning number to purchase an item for less than its stated price. See
Mirengoff Aff., Ex. A, C. On September 13,2003, Edwards filed a Charge of Discrimination with the EEOC alleging that Home Depot had subjected him to discriminatory treatment on the basis of his race and national origin and that his discharge was retaliatory. Mirengoff Aff., Ex. B. After an investigation, the EEOC issued, on February 22, 2005, a Detennination finding reasonable cause to believe I) that Home Depot had subjected Edwards and a class of similarly situated employees to a hostile work environment on the basis of their national origins, i and 2) that Home Depot had tenninated Edwards in retaliation for filing a complaint of racial discrimination with Home Depot's Human Resources Department. Mirengoff Aff., Ex. C.
As is mandated by law, see 42 U.S.C. § 2000e-5(b), the EEOC then entered into a
conciliation process with the parties. On March 7, 2005, the EEOC sent a letter to Home Depot suggesting 13 remedial steps. These proposals, in large part, revolved around securing guarantees from Home Depot that it would comply in the future with Title VII's mandates, provide further sensitivity training for all employees, and prominently post EEOC notices in all Home Depot stores in the New York City and Long Island areas. The letter also requested that Home Depot pay Edwards a total of $155, 160 to settle the charge. This demand included $32,800 in back pay, $39,360 in front pay, $75,000 in compensatory damages, and $8,000 in attorneys' fees and costs. Mirengoff Aff., Ex. D.
Home Depot responded to the EEOC's conciliation proposals in a letter, dated March IS,
iMore specifically, the EEOC charged that two assistant managers at Home Depot had, on occasion, "made fun" of employees who had foreign accents. Mirengoff Aff., Ex. C at 3. However, the Determination did not identifY any of the complaining employees, with the exception of Edwards, by name.ld.
2

2005, noting its desire to "resolve this matter through the conciliation process" and expressing its willingness to abide by most of the EEOC's requests. Nonetheless, it balked at the prospect of paying $155,160 to Edwards, arguing that this demand was "not reasonable based on the facts of the charge." Home Depot argued that, in addition to the fact that Edwards was only making $15 per hour as a lower-level sales associate, he had not submitted any documentation, inter alia, I) evidencing his efforts to mitigate his damages by finding a comparable job, 2) demonstrating that he was not collecting unemployment benefits, or 3) supporting his demand for $75,000 in compensatory damages. It then offered to settle the matter for $15,440, a figure that included $7,440 for back pay and $8,000 for attorneys' fees. Mirengoff Aff., Ex. E.
Later that month, the EEOC provided Home Depot with additional information regarding Edwards' claims via two forwarded letters from Edwards' attorney, Philip Akakwam ("Akakwam"). In the first letter, dated March 15,2005, Akakwam asserted that $75,000 would be necessary to compensate Edwards for the "mental anguish" he suffered as a result of Home Depot's conduct. He also stated that although Edwards had submitted numerous employment applications, he had been unable to secure a comparable position. Mirengoff Aff., Ex. O. In the second letter, dated March 21, 2005, Akakwam clarified that, even though Edwards had obtained employment as an "environmental worker" at an hourly rate of$14.00 shortly after being terminated by Home Depot, this position was not "comparable" because it offered fewer benefits and no overtime.' Mirengoff Aff., Ex. H.
'In contrast, Akakwam claimed that Edwards had often worked up to 80 hours a week - - thus securing him 40 hours of overtime pay - - while employed by Home Depot. Mirengoff Aff., Ex. H.
3

The EEOC did not respond in writing to Home Depot's counteroffer until May 13,2005,' when it informed Home Depot via letter that Akakwam, on behalf of his client, had rejected Home Depot's "present offer.,,4 The EEOC also asserted that it had "identified at least eight (8) individuals who were subjected to discrimination" while employed by Home Depot for whom it wanted to obtain compensation. The letter concluded by stating that "the Commission would like to continue the conciliation process and give Home Depot the opportunity to outline the monetary relief it will be offering the class and any additional monetary relief it is willing to offer Charging Party [Edwards]." Mirengoff Aff., Ex. It followed up with another letter, dated May 20,2005. In this letter, the EEOC reiterated that Akakwam's demand for Edwards stood at $155,160. The EEOC also announced that it was seeking an additional $120,000 in compensation for the eight as-yet unidentified class members also allegedly discriminated against on the basis of national origin, thus bringing the total demand to $275,160. Mirengoff Aff., Ex. K.
Home Depot replied to this communication on June I, 2005, indicating its willingness to conciliate in good faith but requesting information regarding documentation from Edwards and any response by him to Home Depot's counteroffer as well as information relating to the allegations and settlement demands of other class members. See Mirengoff Aff., Ex. L. The
3The EEOC claims that, in late March 2005, an EEOC representative had orally advised Home Depot that its March 15, 2005 counteroffer was inadequate in part because Home Depot needed to provide monetary relief for "other class members." See Mirengoff Aff., Ex. I; PI.' s Rule 56.1 Stmt. '\III. Home Depot disputes this assertion. Indeed, it contends that it did not receive any form of notice that the EEOC intended to pursue monetary relieffor anyone besides Edwards until it received the EEOC's May 13,2005 letter. See Def.'s Mem. in Supp. at 3-4.
4By this stage, Home Depot had added an additional $3,500 in compensatory damages to its original offer of $7,440 in back pay and $8,000 in attorneys' fees, for a total counteroffer of $18,940. See Mirengoff Aff., Ex. F, J; PI.'s Rule 56.1 Stmt. '\Ill.
4

EEOC responded on June 14, 2005, asserting that it "also remain[ed] interested in resolving the above referenced Charge of Discrimination with the Home Depot." Yet, dodging Home Depot's specific request, the letter contained no further documentation supporting Edwards' monetary demand or information regarding the identities or specific allegations of the other class members. Instead, the EEOC simply stated that Edwards was unwilling to reduce his demand for $155,160 and that an additional payment of $120,000 would be necessary to resolve the claims of the class. The EEOC then gave Home Depot until June 22, 2005 "to outline the additional monetary relief it is willing to offer to resolve this matter with all parties involved." Mirengoff Aff., Ex. M.
Home Depot answered the EEOC's June 14,2005 letter on June 22, 2005. It began by reaffirming that it remained "willing to conciliate in good faith with the EEOC." Home Depot argued, however, that it had not yet been provided with even "minimal, basic information" from which to formulate a reasonable counteroffer for any of the complainants' monetary demands. Specifically, with respect to Edwards, Home Depot complained that his request for $155,160 seemed "grossly excessive" in light of the facts that he 1) had not complained of any form of discrimination until his termination, 2) had secured a comparable entry-level position only a few months after this termination,' and 3) had provided only minimal supporting documentation for his claim of $75,000 in emotional damages. With respect to the class members, Home Depot complained that it had not been provided with any information whatsoever regarding their identities, "dates of employment; job titles; the nature, severity, or pervasiveness of any alleged
'In this regard, Home Depot stressed that Edwards' claim to the EEOC that he had often worked "up to 40 hours of overtime per week" while employed by Home Depot was not grounded in fact since its own records revealed that Edwards had "worked a total of approximately twenty-five hours of overtime during the entire two-year period prior to his termination." Mirengoff Aff., Ex. F (emphasis in original).
5

acts of harassment; or whether or not any of the individuals complained." Mirengoff Aff., Ex. F. This time, to Home Depot's apparent surprise, the response of the EEOC, on June 23,
2005, was to declare that the conciliation process had been "unsuccessful" and further conciliation efforts would cease. Mirengoff Aft'., Exs. N-P. Then, the EEOC, on September 22, 2005, filed the instant action on behalf of Edwards and "a class of similarly situated employees. " The complaint asserts, as forewarned, that I) Edwards and the class were subjected to a hostile work environment on the basis of their national origins, and 2) that Edwards was discharged in retaliation for complaining about this discrimination.
Home Depot now moves for partial summary judgment as to all charges brought by the EEOC that do not relate specifically to Edwards ("the class claims") on the ground that the EEOC failed to adequately fulfill its statutory duty under Title VII to conciliate these claims prior to filing the instant complaint, or, in the alternative, for a 60-day stay of proceedings pending an order by this Court to engage in further conciliation of the class claims.6 Of course, on a motion such as this seeking summary judgment by a party asserting a failure on the part of the EEOC to satisfY its statutory duty to conciliate, the Court "is to assume the truth of the matters alleged in the complaint and in the affidavits of EEOC's counsel and the exhibits attached thereto in order to ascertain whether the EEOC met its obligation to conciliate [under the relevant statute]." EEo.C. v. New Cherokee Corp., 829 F. Supp. 73, 80 (S.D.N.Y. 1993)(citing E.Eo.C. v. KDM School Bus Co., 612 F. Supp. 369, 373 (S.D.N.Y. 1985))(further noting that this standard "is nothing more than the basic legal standard [] applicable to all motions ... for summary judgment.").
6Although the EEOC did not provide the names of the individual class members in its complaint, it ultimately provided them during discovery after being ordered to do so by Magistrate Judge Cheryl Pollak. Home Depot's records reflect that, of the eight class members, seven had already left the employ of Home Depot by the date conciliation had commenced. See Bryant Decl., Ex. 1-7.
6

II. Discussion Title VII requires that the EEOC must "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion" before it initiates a lawsuit to enforce compliance. 42 U.S.C. § 2000e-5(b); see also E.E.o.c. v. Shell Oil Co., 466 U.S. 54, 63-64 (1984). This "duty to conciliate is at the heart of Title VII," E.E.O.c. v. Asplundh Tree Expert Co., 340 F.3d 1256, 1260 (11th Cir. 2003), because, as one court has explained:
[I]t is clear that Congress placed great emphasis upon private settlement and the elimination of unfair practices without litigation ... on the ground that voluntary compliance is preferable to court action. . .. Indeed, it is apparent that the primary role of the EEOC is to seek elimination of unlawful employment practices by informal means leading to voluntary compliance. Hutchings v. United States Indus., 428 F.2d 303, 309 (5th Cir. I 970)(internal citations omitted). As such, courts have stressed that "[n]othing less than a 'reasonable' effort to resolve with the employer the issues raised by the complainant[s]" will suffice to satisfy the EEOC's duty of conciliation prior to any commencement of litigation. Asplundh, 340 F.3d at 1260; see also Brennan v. Ace Hardware Corp., 495 F.2d 368, 374 (8th Cir. I974)(noting that Title VII's conciliation requirement obligates the EEOC to engage in "strong, affirmative attempts ... to effect compliance before resorting to legal action"). For a court conducting an inquiry into whether the EEOC has failed to adequately fulfill this statutory mandate, "the fundamental question is the reasonableness and responsiveness of the
[EEOC's] conduct under all the circumstances." E.E o.c. v. Klingler Elec. Corp., 636 F.2d 104,
107 (5th Cir. 1981). In the Second Circuit, the EEOC's duty to conciliate is thus held to be satisfied if, before initiating the action, the EEOC I) outlines to the employer the reasonable
7

basis for its belief that the employer is in violation of Title VII, 2) offers the employer an opportunity for voluntary compliance, and 3) responds in a reasonable and flexible manner to the reasonable attitude of the employer. EEo.C. v. Johnson & Higgins. Inc., 91 F.3d 1529, 1534 (2d Cir. 1996); E.Eo.C. v. Die Fliedermaus. L.L.c., 77 F. Supp. 2d 460, 466 (S.D.N.Y. 1999); New Cherokee Corp., 829 F. Supp. at 80.7
Here, the EEOC has clearly fulfilled its duties under the first and second steps of this analysis. The EEOC's "determination" letter of February 22, 2005 plainly satisfies the first step in that it sets out, albeit briefly, the reasonable basis for the EEOC's belief that Edwards and the other class members had been subjected to a hostile work environment based on their national origins. See Mirengoff Aff., Ex. C at 3 (stating that the EEOC had obtained "statements from independent sources ... that [two supervisors had] made fun of [Edwards and] other employees who had foreign accents"). The second step - - providing an employer with an opportunity for voluntary compliance with Title VII - - was also fulfilled by this letter, see id. at 4 (inviting the parties to join in a "collective effort towards ajust resolution of this matter" via the conciliation process), as well as by the EEOC's subsequent letter in which it suggested 13 remedial steps to be taken by Home Depot during the conciliation process. See Mirengoff Aff., Ex. D; see also Die Fliedermaus, 77 F. Supp. 2d at 467 (finding that a similar EEOC letter outlining "conciliation terms" satisfied the second step obligation).
Analysis of third step compliance by the EEOC yields a different result. From the
7At the same time, however, if the defendant categorically "refuses the invitation to conciliate or responds by [simply] denying the EEOC's allegations, the EEOC need not pursue conciliation [at all] and may proceed to litigate the question of the employer's liability for the alleged violations." Johnson & Higgins, 91 F.3d at 1535. This is clearly not such a case.
8

uncontested facts, it is clear that the EEOC did not "respond in a reasonable and flexible manner to the reasonable attitude of the employer." Johnson & Higgins, 91 F.3d at 1534.
As an initial matter, the formal response of Home Depot following the EEOC's formal announcement' of its intent to pursue compensatory damages on behalf of the unidentified class members cannot in any way be characterized as unreasonable. Notably, Home Depot did not simply deny the class's allegations or state that it would not be amenable to resolving them in conjunction with the complaint of Edwards. Instead, and significantly, it reiterated its continuing desire to resolve the entire matter "in good faith" via the conciliation process and in that connection requested that the EEOC provide it with "information concerning the allegations of the 8 potential class members." Such basic information, Home Depot indicated, would be helpful in its formulation of the reasonable counteroffer the EEOC had, in its May 20, 2005 letter, specifically requested Home Depot to provide. See Mirengoff Aff., Ex. 1.
The EEOC, however, refused to accommodate this request. Instead, it summarily demanded, on June 14,2005, that Home Depot pay $120,000 to resolve the class claims, or, in the alternative, to submit a "reasonable counteroffer." If Home Depot did not acquiesce in this demand, the EEOC warned, it would "infer that further efforts to conciliate this matter [would] be futile." Mirengoff Aff., Ex. M. Home Depot was thus faced with the unenviable choice of either acceding to the EEOC's monetary requests regarding the class, despite not being provided with any basis whatsoever for ascertaining whether these claims were reasonable, or risking costly federal litigation if it did not.
Understandably, with no substantial reply from the EEOC, Home Depot responded on
'For purposes of this motion, whether this intention was communicated in March 2005, as the EEOC contends, or in May 2005, as Home Depot contends, see footnote 3, supra, is of no consequence.
9

June 22, 2005 by again requesting information regarding the allegations of the class. It pointed out that, without "minimal, basic information" regarding these claims, such as "dates of employment," "job titles," or "the nature, severity, or pervasiveness of any alleged acts of harassment," it was "impossible for the Company to provide a meaningful response" to the EEOC's $120,000 demand to settle the class claims. Mirengoff Aff., Ex. F. It was at this stage, of course, that the EEOC inexplicably called off conciliation, stating only that its efforts to conciliate to date had been "unsuccessful" and that any future conciliation regarding any of the claims would be "futile or non-productive." Mirengoff Aff., Ex. N.
There can be no reasonable dispute that the record as set out above clearly establishes, with respect to the class claims, that the EEOC did not respond "in a reasonable and flexible manner to the reasonable attitude of the employer," Johnson & Higgins, 91 F.3d at 1534, and thus did not fulfill its statutory duty to conciliate before initiating litigation. With no admissible evidence proffered with the complaint, or by affidavit or exhibits to the contrary, it is clear that Home Depot had been cooperative throughout the conciliation process; it had promptly agreed to all of the EEOC's nonmonetary demands, and had simply requested more information regarding the claims of the class in order to formulate the reasonable counteroffer the EEOC had asked it to provide. Considering the fact that, at this stage, the EEOC had provided Home Depot with absolutely no information regarding the identities or claims of the eight class members - - with the exception of the rather vague allegation that, on unspecified dates, two Home Depot managers had "made fun" of them because of their accents - - Home Depot cannot be faulted for making this reasonable inquiry. The EEOC's response - - refusing to provide such basic information while, at the same time, threatening litigation if Home Depot did not pay up - - was unreasonable. Indeed, even recognizing the fact that "[cjonciliation is ... a flexible and
10

responsive process which necessarily differs from case to case," E.E 0. C. v. Prudential Fed. Say. & Loan Ass 'n, 763 F.2d 1166, 1169 (lOth Cir. 1985), the EEOC's conduct in the instant case with respect to the class claims "smacks more of coercion than of conciliation." EE.o.C. v. Pet. Inc.. Funsten Nut Div., 612 F.2d 1001, 1002 (5th Cir. 1980).
Die Fliedermaus is directly on point. There, the EEOC presented the employer with five "conciliation terms" during the conciliation process. The employer promptly agreed to the first three of these terms, which provided for sensitivity training, the posting of remedial notices, and the adoption of an anti-harassment policy. But, when the employer requested more information about the class members and their allegations prior to responding to the fourth and fifth terms, both of which involved monetary compensation, the EEOC refused to provide the employer with the requested information. Instead, as in the instant case, it declared conciliation a failure and filed suit. The court found that, by calling off negotiations while the other party was still expressly amenable to conciliation, the EEOC had clearly failed to fulfill its statutory duty under Title VII to conciliate the claims prior to instituting litigation. See Die Fliedermaus, 77 F. Supp. 2d at 467-68; see also EEo.C. v. Golden Lender Financial Group, 2000 WL 381426, at *5 (S.D.N.Y. Apr. 13, 2000)(the EEOC failed to meet the third requirement by refusing to provide requested information).
Because the conciliation requirement of 42 U.S.C. § 2000e-5(b) is a jurisdictional prerequisite to suit, see Prudential, 763 F.2d at 1169, "[w)here the EEOC has made absolutely no efforts [to conciliate) dismissal is appropriate." New Cherokee Corp., 829 F. Supp. at 81. On the other hand, where, as here, the EEOC has made at least a cursory effort to conciliate a claim, the "preferred remedy is not dismissal but a stay of the action to permit such conciliation." Id.; see also Die Fliedermaus, 77 F. Supp. 2d at 468 (granting a stay of proceedings to allow the parties
11

to engage in further conciliation); Golden Lender, 2000 WL 381426 at *6 (same). It is this relief that the Court will order.
III. Conclusion For the foregoing reasons, this case shall be stayed for a period of 60 days from the date of this Memorandum and Order to facilitate the required further good faith efforts by the parties to conciliate the class claims. Home Depot's motion is otherwise denied.

DATED:

SO ORDERED.
Brooklyn, New York July 19, 2007

- - [

- --

ERICN. VITALIANO

United States District Judge

12

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-----.---.-------.--------X ----------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
-against-

Civil Action No. CV-05-04486(ENV)(CLP)

HOME DEPOT U.S.A., INC.,

Defendant.
~ - - ~ - ~ ~ ~ - - ~ . - - ~ ~X - - ~ ~ ~ - . ~ . ~ . . ~ - - . ~ - ~

Plaintiff Equal Employment Opportunity Commission (hereinatter "EEOC") brought this action to enforce Title VII of the Civil Rights Act of 1964. The parties having entered into a Conciliation Agreement on March 26,2008 to settle and resolve this action in full, it is hereby stipulated and agreed by and between the undersigned attorneys for the parties to this action that:
1) The Complaint and all claims alleged therein by EEOC are dismissed with prejudice; and
2) Each party shall bear its own attorney's fees, costs and disbursements
Dated: New York, New York April 3. 2007

~ e g i o n aAl ttorney EQUAL ELMPLOYMENTOPPORTUNITY COMMISSION New York District Office 33 Whitehall Street, 5th Floor New York, New York 10004-21 12 (212) 336-3696

Paul E. Mirengoff I Counsel for Defendant HOME DEPOT U.S.A., INC. Akin Gump Strauss Hauer & Feld, LLP 1333 New Hampshire Avenue, N.W. Washington, D.C. 11201 (202) 887-4354 (202) 887-4288 (facsimile)

 
 Case: 1:05-cv-4486 As of: 06/09/2017 04:45 PM EDT 1 of 5
STAYED,CLOSED
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:05−cv−04486−ENV−CLP

U.S. Equal Employment Opportunity Commission (E.E.O.C.) v. Date Filed: 09/22/2005

Home Depot U.S.A., Inc.

Date Terminated: 04/23/2008

Assigned to: Judge Eric N. Vitaliano

Jury Demand: Plaintiff

Referred to: Magistrate Judge Cheryl L. Pollak

Nature of Suit: 442 Civil Rights: Jobs

Cause: 42:2000e Job Discrimination (Employment)

Jurisdiction: U.S. Government Plaintiff

Plaintiff

U.S. Equal Employment Opportunity Commission (E.E.O.C.)

represented by Elizabeth Grossman EEOC 33 Whitehall Street 5th Floor New York, NY 10004−2112 212 336 3698 Email: elizabeth.grossman@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael B. Ranis Equal Employment Opportunity Commission New York District Office 33 Whitehall St 5th Floor New York, NY 10004 (212) 336−3701 Email: michael.ranis@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Home Depot U.S.A., Inc.

represented by Donald R. Livingston Akin, Gump, Strauss, Hauer & Feld, L.L.P. 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 (202) 887−4000 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul E. Mirengoff Akin, Gump, Strauss, Hauer & Feld, LLP 1333 New Hampshire Ave Nw Washington, DC 20036 202−887−4354 Fax: 202−887−4288 Email: pmirengoff@akingump.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Fink Akin Gump Strauss Hauser & Feld LLP 1333 New Hampshire Avenue Washington, DC 20036 LEAD ATTORNEY

Case: 1:05-cv-4486 As of: 06/09/2017 04:45 PM EDT 2 of 5
ATTORNEY TO BE NOTICED
Jonathan L. Sulds Akin, Gump, Strauss, Hauer & Feld, L.L.P. 590 Madison Avenue New York, NY 10022 (212)872−1042 Fax: (212)872−1002 Email: jsulds@akingump.com ATTORNEY TO BE NOTICED
Michelle A. Burg Akin Gump Stauss Hauer & Feld LLP 590 Madison Avenue New York, NY 10022 212−872−1039 Fax: 212−872−1002 Email: mburg@akingump.com ATTORNEY TO BE NOTICED

Date Filed 09/22/2005 09/22/2005 11/23/2005 11/23/2005 03/23/2006 03/31/2006
04/18/2006 04/20/2006 05/12/2006 05/12/2006 05/12/2006 05/18/2006

# Docket Text
1 COMPLAINT against Home Depot U.S.A., Inc., filed by U.S. Equal Employment Opportunity Commission (E.E.O.C.). (Attachments: # 1 Civil Cover Sheet)(Bowens, Priscilla) (Entered: 09/23/2005)
Summons Issued as to Home Depot U.S.A., Inc.. (Bowens, Priscilla) (Entered: 09/23/2005)
2 ANSWER to Complaint by Home Depot U.S.A., Inc.. (Attachments: # 1 Affidavit of Service)(Burg, Michelle) (Entered: 11/23/2005)
3 Corporate Disclosure Statement by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 11/23/2005)
Judge Eric N. Vitaliano added. Judge Nicholas G. Garaufis no longer assigned to case. (Brown, Marc) (Entered: 03/23/2006)
4 SCHEDULING ORDER: An initial conference has been scheduled in the above−captioned case on APRIL 20, 2006 at 9:30 a.m., before the Honorable Cheryl L. Pollak, United States Magistrate Judge, in Room 1230 at 225 Cadman Plaza East, Brooklyn, New York. Ordered by Judge Cheryl L. Pollak on 3/31/06. (Caggiano, Diana) (Entered: 03/31/2006)
5 REPORT of Rule 26(f) Planning Meeting. (Ranis, Michael) (Entered: 04/18/2006)
6 Minute Entry: Initial Conference held before Magistrate Cheryl L. Pollak on 4/20/2006. Defendant to serve limited interrogs by 5/19; response due 6/2. Settlement conference scheduled for 6/15/06 at 9:30 a.m. (Pollak, Cheryl) . (Entered: 04/20/2006)
7 Notice of MOTION for Leave to Appear Pro Hac Vice for Donald R. Livingston, Esq. Filing fee $ 25, receipt number 1808800. by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 05/12/2006)
8 Notice of MOTION for Leave to Appear Pro Hac Vice for Paul E. Mirengoff, Esq. Filing fee $ 25, receipt number 1808830. by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 05/12/2006)
9 Notice of MOTION for Leave to Appear Pro Hac Vice for Shannon Fink, Esq. Filing fee $ 25, receipt number 1808854. by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 05/12/2006)
10 ORDER granting re 7 Notice of MOTION for Leave to Appear Pro Hac Vice for Donald R. Livingston, Esq. Filing fee $ 25, receipt number 1808800. filed by Home Depot U.S.A., Inc. Ordered by Judge Cheryl L. Pollak on 5/18/06. (Pollak, Cheryl) (Entered: 05/18/2006)

Case: 1:05-cv-4486 As of: 06/09/2017 04:45 PM EDT 3 of 5

05/18/2006 05/18/2006 06/16/2006 06/23/2006 06/30/2006 07/19/2006 07/24/2006 07/25/2006 08/02/2006 08/18/2006 08/18/2006 08/31/2006
09/15/2006 09/22/2006 09/28/2006

11 ORDER GRANTING re 8 Notice of MOTION for Leave to Appear Pro Hac Vice for Paul E. Mirengoff, Esq. Filing fee $ 25, receipt number 1808830. filed by Home Depot U.S.A., Inc. Ordered by Judge Cheryl L. Pollak on 5/18/06. (Pollak, Cheryl) (Entered: 05/18/2006)
12 ORDER GRANTING re 9 Notice of MOTION for Leave to Appear Pro Hac Vicefor Shannon Fink, Esq. Filing fee $ 25, receipt number 1808854. filed by Home Depot U.S.A., Inc. Ordered by Judge Cheryl L. Pollak on 5/18/06. (Pollak, Cheryl) (Entered: 05/18/2006)
13 MINUTE ENTRY for Status Conference proceeding held before MJ Cheryl L. Pollak on 6/15/2006. Pursuant to court's request, EEOC produced information to defendant in effort to conciliate/settle. Defendant to send letter requesting pre−motion conference by June 23; response in any June 30. (Caggiano, Diana) (Entered: 06/16/2006)
14 Letter to Judge Eric N. Vitaliano from Paul E. Mirengoff dated 6/23/06 requesting a pre−motion conference in order to seek leave to move for partial summary judgment, or in the alternative a stay of proceedings by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 06/23/2006)
15 Letter in Response to Def. Request to Move for Summary Judgment by U.S. Equal Employment Opportunity Commission (E.E.O.C.). (Ranis, Michael) (Entered: 06/30/2006)
SCHEDULING ORDER:Pre Motion Hearing for Summary Judgement Motion set for 8/3/2006 10:00 AM in Courtroom 1 before Judge Eric N. Vitaliano. Ordered by Judge Eric N. Vitaliano on 7/19/2006. (Villanueva, William) (Entered: 07/19/2006)
16 Letter to Judge Vitaliano dated July 24th 2006 from Michelle A. Burg requesting a pre−motion conference in order to seek leave to move for partial summary judgment, or in the alternative to stay proceedings by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 07/24/2006)
17 Letter to Judge Vitaliano from Michelle Burg dated 7/25/06 requesting that the Pre−Motion Hearing scheduled for August 3rd, 2006 be rescheduled by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 07/25/2006)
NOTICE of Hearing:Pre Motion Hearing set for 8/31/2006 10:30 AM in Courtroom 6 before Judge Eric N. Vitaliano. (Villanueva, William) (Entered: 08/02/2006)
NOTICE of Hearing: The conference for 8/24/2006 has been rescheduled.Pre Motion Hearing set for 8/25/2006 11:30 AM in Courtroom 6 before Judge Eric N. Vitaliano. (Villanueva, William) (Entered: 08/18/2006)
NOTICE of Hearing: Pre Motion Hearing set for 8/31/2006 10:30 AM in Courtroom 6 before Judge Eric N. Vitaliano. Due to a clerical error, two pre−motion conferences were scheduled. Please do not appear for the 8/25/2006 conference.(Villanueva, William) (Entered: 08/18/2006)
Pre−Motion Conference held on August 31, 2006 at 10:30a.m. before Judge Eric N. Vitaliano. Michael B. Ranis appeared for the EEOC; Paul E. Mirengoff appeared for Home Depot U.S.A., Inc. The parties discussed their efforts to date at conciliation as well as the proposed motion for partial summary judgment. The parties were instructed to continue attempts at settlement of damages. The parties were also ordered to file a joint letter via ECF by September 15, 2006 advising of their settlement course and proposing a briefing schedule for whatever remains of the legal issues in conflict. (Villanueva, William) (Entered: 09/12/2006)
18 Letter to The Honorable Eric N. Vitaliano from Paul E. Mirengoff dated September 15, 2006 by Home Depot U.S.A., Inc.. (Burg, Michelle) (Entered: 09/15/2006)
19 Docket Text: SCHEDULING ORDER:for summary judgment motion, Motion 10/12/06; Opposition 11/7/06; Reply 11/17/06. On ltr. dtd. 9/15/06 from Paul E. Mirengoff.. Ordered by Judge Eric N. Vitaliano on 9/20/06. (Jackson, Ramona) (Entered: 09/22/2006)
ORDER granting 7 Motion for Leave to Appear, granting 8 Motion for Leave to Appear, granting 9 Motion for Leave to Appear By Mag. Pollak (see documents # 10,11,12) Terminate motions. (Jackson, Ramona) (Entered: 09/28/2006)

Case: 1:05-cv-4486 As of: 06/09/2017 04:45 PM EDT 4 of 5

09/28/2006
10/04/2006 11/07/2006 11/13/2006 11/14/2006
11/14/2006
11/14/2006 11/29/2006 11/29/2006 11/29/2006 11/29/2006 12/08/2006 12/08/2006 07/20/2007

ECF registration forms have been mailed so that all filings may be made electronically. ALL ACTIONS BEFORE THIS COURT are ECF matters. It is MANDATORY that you file all original documents electronically. From this point forward, original documents are REQUIRED to be filed electronically and forward a hard copy, labeled courtesy copy, to chambers. To avoid having your documents returned or chambers being notified of your non−compliance, please adhere to The Judges' Individual Rules of Chambers and Administrative Order 2004−08. Further information on ECF requirements and online ECF registration may be found at the website for the Eastern District of New York at www.nyed.uscourts.gov.. (Jackson, Ramona) (Entered: 09/28/2006)
20 NOTICE of Appearance by Michael B. Ranis on behalf of U.S. Equal Employment Opportunity Commission (E.E.O.C.) (Ranis, Michael) (Entered: 10/04/2006)
21 STIPULATION and Order on Schedule by U.S. Equal Employment Opportunity Commission (E.E.O.C.). (Attachments: # 1 Text of Proposed Order and Stipulation)(Ranis, Michael) (Entered: 11/07/2006)
22 ORDER STIP>.Opposition to motion for summary judgment to 11/14/06; Reply Nov. 29,2006.. Ordered by Judge Eric N. Vitaliano on 11/7/06. (Jackson, Ramona) (Entered: 11/13/2006)
23 RESPONSE in Opposition re 9 Notice of MOTION for Leave to Appear Pro Hac Vice for Shannon Fink, Esq. Filing fee $ 25, receipt number 1808854. Opposition to Undocketed Def. Motion for Sum.Judgm, not Pro Hac Vice filed by U.S. Equal Employment Opportunity Commission (E.E.O.C.). (Ranis, Michael) (Entered: 11/14/2006)
24 REPLY to Response to Motion re 7 Notice of MOTION for Leave to Appear Pro Hac Vice for Donald R. Livingston, Esq. Filing fee $ 25, receipt number 1808800. Att. Cover Letter and Disputed Facts to Def. Summ. Judgment Motion filed by U.S. Equal Employment Opportunity Commission (E.E.O.C.). (Attachments: # 1)(Ranis, Michael) (Entered: 11/14/2006)
25 CERTIFICATE OF SERVICE by U.S. Equal Employment Opportunity Commission (E.E.O.C.) re 24 Reply to Response to Motion,, 23 Response in Opposition to Motion, and Disputed Facts and Decl. (Ranis, Michael) (Entered: 11/14/2006)
26 Notice of MOTION for Partial Summary Judgment by Home Depot U.S.A., Inc.. (Attachments: # 1 Exhibits A−S# 2 Certificate of Service)(Burg, Michelle) (Entered: 11/29/2006)
27 RESPONSE in Support re 26 Notice of MOTION for Partial Summary Judgment Memorandum in Support of Defendant's Motion for Partial Summary Judgment or, in the Alternative, a Stay of Proceedings filed by Home Depot U.S.A., Inc.. (Attachments: # 1 Certificate of Service)(Burg, Michelle) (Entered: 11/29/2006)
28 REPLY to Response to Motion re 26 Notice of MOTION for Partial Summary Judgment Reply Memorandum in Support of Defendant's Motion for Partial Summary Judgment or, in the Alternative, a Stay of Proceedings filed by Home Depot U.S.A., Inc.. (Attachments: # 1 Certificate of Service)(Burg, Michelle) (Entered: 11/29/2006)
29 AFFIDAVIT in Support re 26 Notice of MOTION for Partial Summary Judgment Declaration of Terrence Bryant filed by Home Depot U.S.A., Inc.. (Attachments: # 1 Certificate of Service)(Burg, Michelle) (Entered: 11/29/2006)
30 Letter Regarding Notice of Appearance of Jonathan L. Sulds by Home Depot U.S.A., Inc.. (Sulds, Jonathan) (Entered: 12/08/2006)
31 NOTICE of Appearance by Jonathan L. Sulds on behalf of Home Depot U.S.A., Inc. (Sulds, Jonathan) (Entered: 12/08/2006)
32 MEMORANDUM AND ORDER denying the 26 Motion for Partial Summary Judgment. The case shall be stayed for a period of 60 days from the date of this Memorandum and Order to facilitate the required further good faith efforts by the parties to conciliate the class claims. Home Depot's motion is otherwise denied. Ordered by Judge Eric N. Vitaliano, on 7/19/2007. Copies mailed. (Barrett, C) (Entered: 07/20/2007)

Case: 1:05-cv-4486 As of: 06/09/2017 04:45 PM EDT 5 of 5

07/20/2007 10/30/2007 10/31/2007 11/14/2007 12/03/2007 02/04/2008 02/19/2008 03/03/2008 04/03/2008 04/23/2008

Case Stayed as per document 32 . (Barrett, C) (Entered: 07/20/2007)
STATUS REPORT ORDER: The parties shall advise the Court by joint letter of the status of the conciliation. Ordered by Judge Eric N. Vitaliano on 10/30/2007. (Fink, Julie) (Entered: 10/30/2007)
33 STATUS REPORT OF CONCILIATION by U.S. Equal Employment Opportunity Commission (E.E.O.C.), Home Depot U.S.A., Inc. (Mirengoff, Paul) (Entered: 10/31/2007)
34 STATUS REPORT On Conciliation by U.S. Equal Employment Opportunity Commission (E.E.O.C.), Home Depot U.S.A., Inc. (Mirengoff, Paul) (Entered: 11/14/2007)
35 STATUS REPORT ON CONCILIATION by U.S. Equal Employment Opportunity Commission (E.E.O.C.), Home Depot U.S.A., Inc. (Mirengoff, Paul) (Entered: 12/03/2007)
36 STATUS REPORT On Conciliation by U.S. Equal Employment Opportunity Commission (E.E.O.C.), Home Depot U.S.A., Inc. (Mirengoff, Paul) (Entered: 02/04/2008)
37 STATUS REPORT on Conciliation by U.S. Equal Employment Opportunity Commission (E.E.O.C.), Home Depot U.S.A., Inc. (Mirengoff, Paul) (Entered: 02/19/2008)
38 STATUS REPORT on Conciliation by Home Depot U.S.A., Inc. (Mirengoff, Paul) (Entered: 03/03/2008)
39 STIPULATION of Dismissal With Prejudice by U.S. Equal Employment Opportunity Commission (E.E.O.C.) (Ranis, Michael) (Entered: 04/03/2008)
40 ORDER DISMISSING CASE: The Court having been advised that this action has been settled, Therefore, this action is discontinued without cost and with prejudice, except as to the right to reopen action if the settlement is not consummated. Ordered by Judge Eric N. Vitaliano on 4/22/2008. (Lagana, Michael) (Entered: 04/23/2008)