The opinion of the court was delivered by: Lawrence R. Leavitt United States Magistrate Judge
Before the court is plaintiff EEOC's Motion for Partial Summary Judgment (#81), defendants' Opposition (#90), and the EEOC's Reply (#93). Also before the court is defendants' Motion to Dismiss (#85), the EEOC's Opposition (#86), and defendants' Reply (#95). The court has also considered Barbara Bowers-Hughes' Declaration in Support of Plaintiff EEOC's Motion for Partial Summary Judgment (#82), Dana Johnson's Declaration in Support of Plaintiff EEOC's Motion for Partial Summary Judgment (#83), Christine Park-Gonzalez's Declaration in Support of Plaintiff EEOC's Motion for Partial Summary Judgment (#84), the Declaration of Dana C. Johnson in Support of Plaintiff EEOC's Opposition to Defendants' Motion to Dismiss (#87), the Declaration of EEOC Chairperson M. Dominguez in Support of Plaintiff EEOC's Opposition to Defendants' Motion to Dismiss Plaintiff EEOC's Lodgment of Additional Authorities in Support of its Opposition to Defendants' Motion to Dismiss (#89), the Declaration of Lynn A. Vlahos in Support of Opposition to Motion for Partial Summary Judgment (#91), the Declaration of Linda Claxton in Support of Opposition to Motion for Partial Summary Judgment (#92), and the Declaration of Dana C. Johnson in Support of Plaintiff EEOC's Reply Brief in Connection with its Motion for Partial Summary Judgment (#94).
The EEOC asks this court to find that it met the statutory conditions precedent prior to commencing this action. It also asks the court to rule that defendants are not entitled to invoke the /Faragher affirmative defense. Defendants contend that the EEOC has not met the conditions precedent to suit and that a genuine issue of material fact exists as to the reasonableness of its investigation. In their Motion to Dismiss defendants seek an order dismissing the action on the ground that the EEOC's investigation was flawed and based on fraudulent information. In the alternative, defendants request the court to stay the proceedings and "remand" the matter back to the EEOC. The defendants also request the court to reconvene the deposition of the EEOC investigator, Park-Gonzalez, and compel her to answer questions previously objected to under the deliberative process privilege.
This case involves allegations of gender and age discrimination at the River Palms Resort and Casino. Plaintiff alleges that Ed Ortiz, the then beverage department manager, instituted a campaign to eliminate older female servers. Plaintiff alleges that in or about April, 2002, Ortiz began to implement changes that discriminated against the older waitresses with seniority. It is alleged that initially Ortiz began to talk to cocktail servers about awarding shifts based on factors other than seniority. Ortiz then allegedly instructed a subordinate to hire only cocktail servers who were under the age of twenty-five. As part of the alleged discrimination, it is asserted that Ortiz administered the schedules so that the older servers were not placed in the most lucrative stations and that the heavier servers were scheduled during the graveyard shift. As a backdrop to this stated shift to younger, thinner servers, Ortiz is accused of keeping posters of scantily clad women in his office, commenting on servers' bottoms and breasts, and in one instance slapping a server on her bottom.
Ten complaints by seven different employees were made to the Nevada Equal Rights Commission ("NERC") and the EEOC beginning August 6, 2002 and continuing through July 11, 2003. The EEOC conducted an investigation and concluded that reasonable cause exists to believe that River Palms violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., ("Title VII") and Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., ("ADEA"). The instant litigation followed.
Motion for Summary Judgment
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248--49 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and court must view all facts and draw all inferences in the light most favorable to the nonmoving party. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982), cert. denied, 460 U.S. 1085 (1983).
Once the moving party satisfies the requirements of Rule 56, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists," Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586.
Title VII allows the EEOC to commence civil suits in its own name. 42 U.S.C. § 2000e-5(f)(1). are four conditions precedent, however, which the agency must satisfy before it may bring suit. First, a charge of discrimination must be filed. The EEOC must then inform the alleged wrongdoer of the charge, conduct an investigation, and determine whether reasonable cause exists to believe that the charges are true. If reasonable cause is found, the agency must engage in conciliation efforts. EEOC v. Pierce Packing Co., 669 F.2d 605, 607 (9th Cir. 1982). Defendants contend that the EEOC's investigation was inadequate, its cause determinations flawed, and that it did not reasonably attempt to conciliate.
1. Charge and Notice of Unlawful Employment Practice
The EEOC established that it received ten charges of discrimination and provided notice to River Palms of each, in compliance with 42 U.S.C. § 2000e-5(b). (See Park-Gonzalez Dec. (#84) Exs.
2. Conduct an Investigation and Determine Whether Reasonable Cause Exists to Believe That the Charge Is True
The EEOC contends that these two conditions precedent were satisfied. It argues that the EEOC only conduct some investigation. (Mot. (#81) 19 (citing EEOC v. The Nestle Co., 1982 U.S. Dist. LEXIS 12373, 1982 WL 234, at *1 (E.D. Cal. 1982)).) After concluding the investigations, the EEOC determined that there was reasonable cause to believe that River Palms had violated Title VII and the ADEA. Thereafter, the EEOC issued Letters of Determination to the charging parties and River Palms. (Park-Gonzalez Dec. (#84) Exs. 21--27.)
Defendants argue that the EEOC's investigation was inadequate and the cause determination flawed, which is the basis for defendants' Motion to Dismiss. For the reasons that follow, the court finds that the EEOC has satisfied these two conditions precedent.
(I) Defendants' Motion to Dismiss (#85)*fn1
Plaintiffs argue that the "egregious course of misconduct" during the EEOC's investigation into defendants' alleged violations of Title VII and the ADEA mandates a dismissal of this action. The defendants also suggests a "remand" for further investigation by the EEOC, in the event the court declines to dismiss the case.
Defendants have offered several exhibits in support of their Motion to Dismiss. The court therefore will treat the motion as one for summary judgment under Fed. R. Civ. P. 12(b) and 56.
(b) The EEOC's Investigation
Defendants state that they have found no precedent that addresses the specific facts of this case. (Defs.' Mot. (#85) 2.) Defendants nevertheless believe that the court has inherent authority to fashion a remedy to redress the prejudice to which they have allegedly been subjected.
The court need not address the various allegations of EEOC misconduct made by defendants because an employer may not litigate the adequacy of the EEOC's investigation and determination, see EEOC v. KECO Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984), unless a plaintiff enters the EEOC's letter of determination as evidence, in which case the defendant is free to point out deficiencies in the investigation. See Plummer v. W. Int'l Hotels Co. Inc., 656 F.2d 502, 505 n.9 (9th Cir. 1981) (noting that defendants may introduce evidence to refute the EEOC's reasonable cause determination and such evidence would go to the weight to be given by the trier of fact to the EEOC determination). Nothing in the legislative history of ...