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Equal Employment Opportunity Commission v. United Parcel Service

United States District Court, E.D. New York

June 29, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
UNITED PARCEL SERVICE, Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE United States District Judge.

         Plaintiff Equal Employment Opportunity Commission (the “EEOC”) commenced this action on July 15, 2015 against Defendant United Parcel Service, Inc. (“UPS”), alleging that UPS had violated Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 by discriminating against two UPS employees, Muhammad Farhan and Bilal Abdullah, as well as a nationwide class of similarly situated individuals. (Compl., Docket Entry No. 1.) After engaging in motion practice, [1] UPS filed an Answer to the Complaint on August 2, 2016, asserting thirty affirmative defenses. (Ans., Docket Entry No. 32.) On August 23, 2016, the EEOC requested a pre-motion conference in anticipation of a motion to strike several of UPS' affirmative defenses. (Pl. Pre-Mot. Conference Request, Docket Entry No. 35.) The Court referred the motion to Magistrate Judge Cheryl L. Pollak for a report and recommendation. (Order dated Aug. 31, 2016.) By report and recommendation dated March 9, 2017 (the “R&R”), Judge Pollak recommended that the Court grant the EEOC's motion to strike UPS' fourth, fifteenth and twenty-second affirmative defenses and deny the EEOC's motion to strike UPS' fifth, sixth, twelfth and twenty-third affirmative defenses. (R&R 44, Docket Entry No. 56.) The parties timely filed objections to the R&R. (Pl. Obj. to R&R (“Pl. Obj.”), Docket Entry No. 58; Def. Obj. to R&R (“Def. Obj.”), Docket Entry No. 59; Pl. Opp'n to Def. Obj. (“Pl. Reply”), Docket Entry No. 60.) For the reasons set forth below, the Court adopts the R&R as to the fourth, fifth, twelfth, fifteenth and twenty-second affirmative defenses, except as to the unnamed claimants in the twenty-second affirmative defense, and declines to adopt the R&R as to the sixth and twenty-third affirmative defenses.

         I. Background

         a. Factual background

         The Court assumes the parties' familiarity with the facts as set forth in the R&R and the parties' briefing and exhibits from the prior motion to dismiss, and includes only those facts necessary to decide the instant motion. (See Def. Mem. of Law in Supp. of Def. Mot. to Dismiss (“Def. Mot. to Dismiss Mem.”), Docket Entry No. 26-1; Cert. of Wendy Johnson Lario in Supp. of Def. Mot. to Dismiss (“Lario Cert.”), Docket Entry No. 26-2; Pl. Mem. of Law in Opp'n to Def. Mot. to Dismiss (“Pl. Mot. to Dismiss Mem.”), Docket Entry No. 27; Decl. of Elizabeth Fox-Solomon (“Fox-Solomon Decl.”) ¶ 15, Docket Entry No. 28.) UPS maintains an appearance policy that applies to all employees in customer contact, supervisory and managerial positions. (Compl. ¶ 13.) Pursuant to the policy, male employees in those positions, but not back-of-the-facility positions that avoid customer contact, are prohibited from wearing beards or growing their hair longer than collar length. (Id.) According to the EEOC, UPS has used the appearance policy to deny equal employment opportunities to individuals whose religious beliefs require them to maintain a beard or refrain from cutting their hair - including Muslims, Rastafarians, Native Americans, Fundamentalist Christians, Sikhs, and Orthodox Jews. (Id. ¶ 15.) The EEOC alleges that UPS violated Title VII by (1) refusing to provide religious accommodations to individuals in the class or unreasonably delaying their requests; (2) failing to hire, promote, or transfer them into positions covered by the appearance policy; and (3) segregating them into non-supervisory positions and positions without customer contact. (Id. ¶¶ 16-18.)

         On January 19, 2006, Abdullah filed a charge of discrimination with the local Buffalo office of the EEOC, alleging that Defendant had failed to hire him because of his religion and failed to accommodate his sincerely-held religious beliefs by requiring him to conform to UPS' appearance policy. In January of 2006, the EEOC provided UPS with notice and a copy of the charge. (Pl. Mot. to Dismiss Mem. 4.) In March of 2006, an EEOC investigator held a preliminary fact-finding conference with UPS supervisors about Abdullah's allegations. (Id.) The same month, the EEOC issued to UPS its first Request for Information (“RFI”), which included requests for nationwide information. (Id.) UPS requested an extension of time to respond to the RFI and, in May of 2006, objected to several requests as overly broad and as requesting private and confidential information about its employees. (Id. at 5.) Thereafter, the EEOC investigator interviewed supervisory personnel at the UPS facility to which Abdullah had applied. (Id.; see Def. Letter dated Aug. 30, 2006 (“Def. Aug. 30, 2006 Letter”), annexed to Lario Cert. as Ex. 7.)

         In August of 2006, the EEOC investigator informed UPS that its responses were incomplete because they did not provide information pertaining to any facilities beyond the Rochester, New York facility to which Abdullah had applied. (Pl. Mot. to Dismiss Mem. 6.) The parties continued to exchange requests and responses through March of 2007, with UPS refusing to produce information on a nationwide basis. (Id. at 6.)

         On April 26, 2007, Farhan filed a charge of discrimination against UPS with the EEOC's local office in Buffalo. (Farhan Charge, annexed to Lario Cert. as Ex. 2.) Farhan alleged that UPS had demoted him because of his religion and that UPS had “a pattern or practice of refusing to accommodate the religious observances, practices, and beliefs of its employees.” (Id.) The EEOC provided UPS with notice and a copy of the charge on May 2, 2007 and asked UPS to provide a statement of position with supporting documentation by the end of the month. (Pl. Mot. to Dismiss Mem. 7.) When UPS did not respond, the EEOC sent a follow-up request in June of 2007. (Fox-Solomon Decl. ¶¶ 16-17.) The EEOC then issued an administrative subpoena seeking nationwide discovery in connection with the Abdullah and Farhan charges on July 25, 2007. (EEOC Subpoena, annexed to Lario Cert. as Ex. 10.) On August 6, 2007, UPS petitioned the EEOC to revoke or modify the subpoena, which the EEOC denied. (Pl. Mot. to Dismiss Mem. 8; Def. Petition dated Aug. 6, 2007, annexed to Lario Cert. as Ex. 11; EEOC Denial of Petition, annexed to Lario Cert. as Ex. 12.) UPS did not respond to the subpoena, and in November of 2007, the EEOC filed an application to enforce its subpoena in the U.S. District Court for the Western District of New York. (Lario Cert. ¶ 15.) In January of 2008, UPS opposed the EEOC's enforcement motion. (Id. ¶ 16.) In September of 2008, Judge William Skretny of the Western District of New York issued a decision denying the EEOC's enforcement motion. (Id. ¶ 17; Judge Skretny Mem. & Opinion, annexed to Lario Cert. as Ex. 13.) The EEOC appealed Judge Skretny's decision to the Second Circuit. (Lario Cert. ¶ 18.)

         While Judge Skretny's decision was on appeal, the EEOC issued a Commissioner's Charge in December of 2008 that, according to the EEOC, permitted it to continue investigating UPS' alleged practices of nationwide discrimination before making a final determination. (Pl. Mot. to Dismiss Mem. 9; EEOC Comm'r Charge, annexed to Lario Cert. as Ex. 3.) In January of 2009, the EEOC issued an RFI in connection with the Commissioner's Charge. (Pl. Mot. to Dismiss Mem. 9.) UPS objected to the RFI in February of 2009.[2] (Id.) The EEOC replied to UPS' objections in March of 2009 and requested the information from the January of 2009 RFI. (Id.) According to the EEOC, UPS did not respond. (Fox-Solomon Decl. ¶ 30.) In September of 2009, the EEOC renewed its request for responses to its January of 2009 RFI, and counsel for UPS replied by requesting that the EEOC permit UPS to continue its process of negotiating with the EEOC's New York District Office over the scope of discovery in the Abdullah charge. (Def. Letter dated Sept. 21, 2009, annexed to Lario Cert. as Ex. 19.)

         According to UPS, the parties conferred in November of 2009 and reached an agreement as to the scope of the information UPS would produce. (Lario Cert. ¶ 25.) However, in November of 2009, the Second Circuit reversed Judge Skretny's order and upheld the relevance of the EEOC's nationwide inquiries. (Pl. Mot. to Dismiss Mem. 9.) In February of 2010, UPS again objected to portions of the EEOC's January of 2009 RFI.[3] (Def. Letter dated Feb. 1, 2010, annexed to Lario Cert. as Ex. 20.) In March of 2010, Judge Skretny issued an order granting the EEOC's enforcement application and directing UPS to provide the required information within forty-five days. (Suppl. Cert. of Wendy Johnson Lario in Supp. of Def. Mot. to Dismiss (“Lario Suppl. Cert.”) 3, ¶ 6, Docket Entry No. 29-1.) UPS completed its production by November of 2010. (Lario Cert. ¶¶ 27-30.)

         According to the EEOC, the Buffalo Office took eighteen months to complete its investigation of the three charges and issue a letter of determination. (Fox-Solomon Decl. ¶ 40.) During that time, an EEOC investigator mailed approximately 200 letters to applicants identified in UPS' production as having been denied employment because of a conflict with the Appearance Guidelines, and sent an additional fifty letters to UPS employees who had sought religious accommodations. (Id. ¶ 41.) After two rounds of following up on undeliverable letters and identifying individuals by other means, the EEOC investigator collected and analyzed responses, made dozens of telephone calls, and conducted approximately thirty interviews.[4] (Id. ¶¶ 42-43.) On March 14, 2012, UPS wrote to the EEOC requesting a final determination. (Def. Letter dated Mar. 14, 2012, annexed to Lario Cert. as Ex. 25.) In that letter, UPS noted that “[t]his is a case where the EEOC has conducted a thorough and extensive investigation, ” and “[t]he time has come for the charge process to end.” (Id.)

         On June 29, 2012, the EEOC issued a letter of determination on the three charges of discrimination (the “Letter of Determination”). (EEOC Determination Letter, annexed to Lario Cert. as Ex. 26.) The EEOC determined that UPS had violated Title VII “by engaging in a nationwide pattern of discriminatory actions and fail[ing] to grant accommodations of religious practice.” (Id. at 3.) In addition, the EEOC determined that UPS had discriminated against both Abdullah and Farhan. (Id.) The EEOC's Letter of Determination invited UPS to conciliate the matter. (Id.) As evidenced in the redacted materials annexed to UPS' motion to dismiss, the parties attempted to conciliate from June of 2012 until August of 2014, at which point the EEOC declared conciliation a failure. (Pl. Letter dated Aug. 13, 2014, annexed to Lario Cert. as Ex. 44.) The longest delay during the conciliation process was between July of 2012 and January of 2013, during which time the parties did not correspond and a UPS offer stood without response from the EEOC. (Def. Mot. to Dismiss Mem. 11.) After conciliation failed in August of 2014, the file was transferred to the EEOC's legal unit to determine whether to recommend litigation. (Fox-Solomon Decl. ¶ 46.) According to the EEOC, lawsuits involving nationwide class allegations must be reviewed and approved by the Office of General Counsel and submitted for a vote by the full Commission. (Pl. Mem. 13 (citing EEOC Regional Attorneys' Manual, Part 2, Section IV(F)).) The EEOC commenced this action on July 15, 2015, within a year of declaring that conciliation had failed.

         b. Procedural background

         On October 2, 2015, UPS moved to dismiss the Complaint, arguing that (1) the EEOC failed to make a prompt determination of the three charges of discrimination; (2) the EEOC failed to conciliate in good faith; and (3) the EEOC's action was barred by laches. (Def. Mot. to Dismiss Mem. 1.) UPS also requested that the Court dismiss any claims based on acts that occurred prior to February 8, 2008 - 300 days before the EEOC issued the Commissioner's Charge. (Id.) At a pre-motion conference, UPS agreed not to pursue its failure-to-conciliate argument.

         On July 19, 2016, the Court heard oral argument on the motion to dismiss. (See Min. Order dated July 19, 2016.) The Court denied the motion as to UPS' claims of unreasonable delay and laches but granted the motion to limit the claims based on the 300-day filing requirement. (Id.) The Court reserved decision as to when the 300-day period would commence for class claims. (Id.)

         On September 16, 2016, the EEOC moved to strike UPS' fourth, fifth, sixth, twelfth, fifteenth, twenty-second and twenty-third affirmative defenses pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. (See R&R 44.)

         c. Judge Pollak's recommendations

         Judge Pollak recommended that the Court grant in part and deny in part Plaintiff's motion to strike. (Id. at 1.) Specifically, Judge Pollak recommended that the Court grant Plaintiff's motion as to Defendant's fourth, fifteenth and twenty-second affirmative defenses and deny Plaintiff's motion as to Defendant's fifth, sixth, twelfth and twenty-third affirmative defenses. (Id.)

         i. Recommendations to strike defenses

         Judge Pollak recommended that the Court strike Defendant's fourth defense of failure to conciliate the class members' claims with Defendant before bringing suit because, assuming Plaintiff was required to conciliate in good faith, the Court would have to engage in an impermissible review of the substance of the conciliation proceedings to determine whether Plaintiff conciliated in good faith. (Id. at 21-22.) Judge Pollak determined that this review of conciliation would require the Court to “engag[e] in the very type of substantive review of agency action that [Supreme Court precedent] clearly prohibits.” (Id. at 22 (citing Mach Mining LLC v. EEOC, 575 U.S. ___, ___ 135 S.Ct. 1645, 1655 (Apr. 29, 2015)).)

         As to Defendant's fifteenth affirmative defense, which asserts that Plaintiff failed to exhaust the administrative prerequisites to bringing suit, Judge Pollak found that judicial review of the EEOC's pre-suit obligations is limited and that Defendant had failed to plead the defense with requisite particularity. (Id. at 39.) Judge Pollak accordingly recommended that the Court strike Defendant's fifteenth affirmative defense. (Id.)

         Judge Pollak similarly recommended that the Court strike Defendant's twenty-second affirmative defense, which asserts that Plaintiff may not recover any damages or pursue any claim on behalf of a claimant based on conduct outside the scope of the underlying charge. (Id. at 39.) Judge Pollak found that Defendant's argument was legally unsupported because “the EEOC is permitted to add both claimants and charges to a complaint after suit has been filed based on an investigation conducted during the process of litigation.” (Id. at 41.)

         ii. Recommendations to deny motion to strike defenses

         As to Defendant's fifth affirmative defense of waiver and estoppel, Judge Pollak recommended that the Court deny Plaintiff's motion to strike the defenses. Judge Pollak found that because the applicability of those equitable defenses to an administrative agency was an unresolved question of law and because there had been no discovery yet in the case, it was “impossible to state definitively at this time that there are no set of facts that could be proven that would provide a viable defense under either theory of waiver or estoppel.” (Id. at 28.)

         Judge Pollak similarly recommended that the Court decline to strike Defendant's sixth affirmative defense of laches and unclean hands “because there is no per se rule against assertions of the defense of laches and unclean hands against the EEOC, no discovery has been conducted since the September hearing, and disputed issues remain as to UPS's claims of prejudice due to the delay engendered by the EEOC's investigation and the alleged bad faith associated with the delay.” (Id. at 32.)

         Judge Pollak also recommended that the Court decline to strike Defendant's twelfth affirmative defense, based on the 300-day limitations period applicable to Title VII actions. (Id. at 35.) Because Judge Pollak could not definitively conclude that the limitations period does not apply to the EEOC when it acts in the public interest and because “factual issues remain as to when UPS received sufficient notice of the EEOC investigation for the purposes of triggering the 300-day filing limit, ” Judge Pollak recommended that the Court deny the EEOC's motion to strike Defendant's twelfth affirmative defense. (Id.)

         Finally, Judge Pollak recommended that the Court decline to strike Defendant's twenty-third affirmative defense, which asserts that Plaintiff failed to make a prompt determination as required under Title VII, because of “pending factual issues surrounding whether EEOC failed to make a prompt determination as to reasonable cause to believe that UPS violated Title VII.” (Id. at 42.)

         II. Discussion

         a. Standards of review i. Report and recommendation

         A district court reviewing a magistrate judge's recommended ruling “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1 (E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only conclusory or general objections, or simply reiterates its original arguments. Chime v. Peak Sec. Plus, Inc., 137 F.Supp.3d 183, 187 (E.D.N.Y. 2015) (“General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error.” (citation omitted)); see also DePrima v. N.Y.C. Dep't of Educ., No. 12-CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).

         ii. Motion to strike

         Rule 12(f) of the Federal Rules of Civil Procedure provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored and will not be granted “unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense.” Coach, Inc. v. Kmart Corps., 756 F.Supp.2d 421, 425 (S.D.N.Y. 2010) (quoting Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated and remanded on other grounds, 478 U.S. 1015 (1986)); see also State of New York v. United Parcel Serv., Inc., 160 F.Supp.3d 629, 637 (S.D.N.Y. 2016) (“Motions to strike are generally disfavored.” (quoting Mayfield v. Asta Funding, Inc., 95 F.Supp.3d 685, 696 (S.D.N.Y. 2015))); Walters v. Performant Recovery, Inc., 124 F.Supp.3d 75, 78 (D. Conn. 2015) (“Motions to strike are generally disfavored, but are within the district court's sound discretion.” (quoting Lamoureux v. AnazaoHealth Corp., 250 F.R.D. 100, 102 (D. Conn. 2008))).

         A court may strike a defense as insufficient where “(1) there is no question of fact which might allow the defense to succeed; (2) there is no question of law which might allow the defense to succeed; and (3) the plaintiff would be prejudiced by the inclusion of the defense.” Sibley v. Choice Hotels Int'l, 304 F.R.D. 124, 132 (E.D.N.Y. 2015) (citation omitted); see also United Parcel Serv., Inc., 160 F.Supp.3d at 637; Coach, Inc., 756 F.Supp.2d at 425. The first two prongs of this test “examine the legal sufficiency of the asserted defense.” Walters, 124 F.Supp.3d at 78 (citing Coach, ...


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