In Barrett v. Suffolk Transportation Services, 600 F. Supp. 81 (E.D.N.Y. 1984), the court held that where the EEOC sent letters to defendants alerting them to the charges and notifying them that it was interested in resolving the conflict and followed these letters with telephone conversations, § 626(b) is satisfied if the defendants' response is that it did not see its practice of terminating school bus drivers at the age of 65 as a violation of the ADEA. Barrett, 600 F. Supp. at 83. See also E.E.O.C. v. KDM School Bus Co., 612 F. Supp. at 373.
What is required is that the EEOC "inform the defendant of the nature and extent of the violations, explain the relief sought, and give the defendant an opportunity to respond." Marshall v. American Motors Corp., 475 F. Supp. 875, 878 (E.D.Mich. 1979). Most importantly, when the EEOC notifies the defendant of the violations it seeks to rectify, it must express an interest in conciliation. E.E.O.C. V. American Express Publishing Corp., 681 F. Supp. at 218.
The EEOC need not go further and continue its efforts to conciliate if the defendant expresses recalcitrance. "Courts have held that the Secretary is not required to continue efforts after the defendant has stated that it believes it has not been guilty of wrongdoing but may proceed to litigation to determine the issue." Marshall v. American Motors, 475 F. Supp. at 879. If the defendant expresses an unwillingness to discuss the charges as formulated by the EEOC, then conciliation efforts need go no further. "If an employer refuses to conciliate or generally denies the allegations and is unwilling to discuss the charges, no further conciliation efforts need be made." E.E.O.C. v. American Express, 681 F. Supp. at 221 n.11.
Even if the EEOC is found not to have fulfilled its statutory duty to conciliate, the preferred remedy is not dismissal but instead a stay of the action to permit such conciliation. Where the EEOC has made absolutely no efforts dismissal is appropriate, but where conciliation efforts have been abbreviated, the case should be stayed to allow sufficient time for the parties to engage in more serious conciliation discussions. E.E.O.C. v. American Express, 681 F. Supp. at 22.
A brief review of the history of this case reveals that the EEOC satisfied its statutory duty to attempt conciliation before filing suit. The EEOC first expressed a desire to conciliate Millington's claim in the cover letter addressed to New Cherokee's counsel accompanying its Request for Further Information dated March 9, 1992. "Our discussions having included the possibility of negotiating a settlement between Respondent and Ms. Millington, I am awaiting your reply as to Respondent's receptiveness to such action." (Ex. I to Memorandum in Opposition). There is no response in the record to this expression of interest in conciliation.
By letter dated November 24, 1992, EEOC investigator Gary Arbuckle requested that New Cherokee conciliate the claims of Millington, Davis, and Deszcz. (Ex. Q to Memorandum in Opposition). New Cherokee responded by letter dated December 2, 1992, that it would conciliate the claim only of Ms. Millington. (Ex. T to Memorandum in Opposition). In its letter New Cherokee explained that it would not conciliate the claims of Davis and Deszcz, explaining that "neither Ms. Davis nor Ms. Deszcz has filed discrimination charges, nor has the EEOC solicited New Cherokee's reasons for ending their employment. New Cherokee cannot fairly be expected to enter negotiations regarding non-existent claims." (Id.). New Cherokee informed the EEOC that it would not conciliate the claim of Millington if the claims of Davis and Deszcz were on the agenda. However, the EEOC in its request for information specifically asked for information regarding all recently terminated employees, including the reasons for such terminations. As noted above, Davis and Deszcz were included in the responses of New Cherokee. (Ex. K to Memorandum in Opposition, 6-7).
On December 8, 1992, the instant lawsuit was filed. On December 17, 1992, New Cherokee received a letter from the EEOC stating that since the "EEOC has determined that efforts to eliminate the alleged discriminatory practices and to obtain voluntary compliance through conciliation as required by § 7(b) of the Age Discrimination in Employment Act, as amended, have been unsuccessful" a lawsuit will be instituted. (Ex. J to Defendant's Motion to Dismiss or for Summary judgment).
New Cherokee's claim that it did not have to conciliate the claims of Davis and Deszcz is unpersuasive. "If an employer refuses to conciliate or generally denies the allegations and is unwilling to discuss the charges, no further conciliation efforts need be made." EEOC v. American Express Pub. Corp., 681 F. Supp. 216, 221 n.11 (S.D.N.Y. 1988) (collecting cases). Clearly, here is an instance of employer recalcitrance permitting the EEOC to proceed with filing suit, since New Cherokee stated that it was unwilling to conciliate if the claims of Davis and Deszcz were on the agenda. (Ex. I to Motion to Dismiss or for summary Judgment).
The record thus indicates that the EEOC notified New Cherokee of the reasonable cause for its determination that the termination of Millington, Davis and Deszcz violated the ADEA. The EEOC offered defendant several opportunities for voluntary compliance and responded reasonably to the attitude and posture of New Cherokee. New Cherokee cannot complain that these efforts were less than New Cherokee might have preferred, when defendant's recalcitrance in accepting the charges as formulated by the EEOC was a major reason for their abbreviation. The EEOC has satisfied any duty under § 626(b) to effect voluntary compliance via informal methods of conciliation.
The EEOC has breached no duty to investigate and has, in accordance with 29 U.S.C. § 626(B), made sufficient efforts to conciliate the claims of Millington, Davis, and Deszcz before instituting this lawsuit. Therefore, New Cherokee's motion to dismiss the action is denied. The case is to proceed.
July 28, 1993
New York, New York
Constance Baker Motley