ORDER ON DEFENDANT'S AND PLAINTIFF'S RESPECTIVE MOTIONS FOR SUMMARY JUDGMENT
This is a suit brought under 29 U.S.C. § 621 et seq., the Age Discrimination in Employment Act ("ADEA"), by the Equal Employment Opportunity Commission ("EEOC") against Defendant Timeless Investments, Inc. ("Timeless"). The EEOC brings this suit on behalf of two charging parties, James Rex ("Rex") and Larry Carlberg ("Carlberg"), who unsuccessfully applied for employment with Timeless. The EEOC seeks injunctive relief for the public interest and seeks compensatory and liquidated damages for Rex and Carlberg. Both parties move for summary judgment -- Timeless on the claims against it and the EEOC on various affirmative defenses. For the reasons that follow, the motions will be granted in part and denied in part.
Timeless operates Klein's Truck and Auto Plaza, which is located in Fresno, California, and consists of a convenience store and gas station ("EZ Trip"), a fuel desk or plaza ("the Plaza"), a truck repair shop, and a restaurant. See PUF 1.1. In July 2004, Timeless had an opening for cashier positions because at least four cashiers had ended their employment. See PUF 1.2,*fn2 11.6, 11.7. Specifically, four cashiers separated from Timeless on June 21, 2004, and a fifth separated on July 19, 2004. See PUF 11.6. Sometime in the summer of 2004, Timeless placed an advertisement in the Fresno Bee confirming that they were looking for a cashier. PUF 1.8. The advertisement read: "CASHIER STOCKING: Up to $10/hr., apply in person, see manager at - - - - N. Golden State Blvd., near Herndon." Plaintiff's Ex. 169; see also PUF 7.1. Timeless received over 160 applications in response to this add. See DUF 37; see also PUF 11.2. Insurance benefits were not provided for the cashier positions. See Shiralian Dec. ¶ 11. In July 2004, Timeless's president Shawn Shiralian ("Shiralian") was responsible for hiring management level employees, and former general manager, Harry Rafayelyan ("Rafayelyan") was responsible for hiring non-management employees, including cashiers. See PUF 1.3, 3.14, 13.7; DRPUF 1.3; Plaintiff's Ex. 230.
Rex saw the add in the Fresno Bee. See Defense Ex. B. On July 5, 2004, Rex filled out an application with Timeless. PUF 3.1. Rex was told by "Alicia" to write his age on the application because the manager wanted to know the applicant's age.*fn3 Id.;*fn4 see also DUF 11.
Rex wrote his age on the application. See Defense Ex. B. Rex was 60 years old in July 2004. See PUF 3.9. Rex's application indicates that he was currently employed at a Mobil gas station as a cashier, he had been employed as a cashier since March 15, 2004, he was also currently employed as a caterer, he was a high school and trade school graduate, he requested a salary of $9.00/hour, and he could start work on July 20, 2004, i.e. in roughly two weeks. See Defense Ex. B; see also PUF 5.2; DUF 3. Rex was neither interviewed nor hired by Timeless. PUF 6.1.
Carlberg saw Timeless's advertisement in the Fresno Bee and went to the identified location to apply on July 6, 2004. See PUF 2.2; Defense Ex. C. When Carlberg submitted his application, he was asked by a female clerk to write his age on the upper right hand corner of the application. PUF 2.3; see also DUF 11. Carlberg questioned the clerk's request. See id. Carlberg told the clerk, "I thought you were not supposed to ask me my age." PUF 2.4. The clerk told him that it might be to his advantage to write down his age because the younger men who had been hired did not show up for work. See Carlberg Depo. 27:1-3. Carlberg wrote his age in the upper right hand corner of his application. See Defense Ex. C. Carlberg was 62 years old in July 2004. PUMF 2.1. Carlberg's application indicated that he was employed part time, he was employed as a "driver" making $8.00/hour, he was a high school graduate, he desired a wage of $10.00/hour, he could start the next day (July 7, 2004), and that his previous jobs were as a tree trimmer/greens keeper. See Defense Ex. C. Carlberg's application does not indicate that he had any cashier experience. See id. At some point while speaking with the clerk, the manager was referenced, the clerk pointed out the manager, and the manager looked at Carlberg and told Carlberg that he would call him. See Carlberg Depo. 32:23-33:9.*fn5 Carlberg was neither interviewed nor hired by Timeless. PUF 6.1.
On July 14, 2004, Timeless hired Paul H., who was 30 years old, as a cashier. See PUF 6.2, 11.7, 12.20; Plaintiff's Ex. 168; Court's Docket Doc. No. 32 at p. 6 & No. 39 at 5. On July 15, 2004, Timeless hired Marisela G., who was 18 years old, as a cashier. See id. On July 22, 2004, Timeless hired Jessica G., who was 21 years old, as a cashier. See id.; PUF 10.10. On July 29, 2004, Timeless hired Dominque C., who was 27 years old, as a cashier. See id. On October 20, 2004, Timeless hired Steve F., who was 21 years old, as a cashier. See id. Marisela G's application and Steve F.'s application do not indicate any prior cashier experience. See PUF 6.3, 6.4, 9.1; Plaintiff's Exs. 131, 133.
Rafayelyan declared that he does not recall receiving Rex and Carlberg's applications, does not recall interviewing anyone within a week of July 4 because he would have been too busy to do so, and generally reviews the most recent applications unless there are no qualified individuals among the most recent applications. See Rafayelyan Dec. ¶ 9. With respect to the reasons for not hiring Rex and Carlberg, Rafayelyan declares:
Assuming I did review their applications, I would not have interviewed them in any event. That is because Mr. Rex was working two other jobs and not immediately available, and Mr. Carlberg  had no experience as a cashier. With 160 applications for a single position, I had the luxury of being very 'picky' and would skip over the application of any candidate who was less than perfect who had immediate availability. Neither claimant fit the need I had at the time.
If a candidate was not available to work immediately I did not consider them, as I did not want to wait for the candidate to give the customary two weeks notice to the other employer. When hiring, I usually needed to fill a position quickly and did not have two weeks to spare for any candidate, no matter how qualified. Mr. Rex was not immediately available.
Id. at ¶¶ 10, 11; see also DUF's 24- 27, 32.
On or about July 29, 2004, Rex filed a charge of age discrimination against Timeless. PUF 8.1. Under the "particulars" section of the charge, Rex indicated, "On July 5, 2004, I filled out an application for employment with [Timeless]. When I submitted the application, [Timeless] told me to write my age on the upper right-hand corner of the application. I was not selected for the position. [Timeless]'s employee Alicia (LNU) told me that her manager liked to know the age of each applicant. I believe I was discriminated against because of my age." Defense Ex. H.
On or about November 23, 2004, Carlberg filed a charge of discrimination against Timeless. PUF 8.2. The "particulars" section of the charge generally follows, and is consistent with, Carlberg's deposition testimony -- a female clerk asked for his age, Carlberg stated that he did not think that this could be asked, and the clerk responded that it might be to his advantage because the younger hires had caused trouble. See Defense Ex. J.*fn6
On October 4, 2004, and December 3, 2004, Timeless sent the EEOC various documents and information. See Defense Exs. E, F. On September 28, 2006, the EEOC sent Timeless a letter of determination. See PUMF 8.9. On January 24, 2008, the EEOC a letter to Timeless and offered to conciliate. See Plaintiff's Exs. 179, 180. On February 29, 2008, the parties had a conciliation meeting. See Plaintiff's Ex. 206. On September 29, 2008, the EEOC filed this lawsuit. PUMF 8.15. Sometime in December 2008, Rex died. See Nostrant Depo. 51:23-25.
SUMMARY JUDGMENT FRAMEWORK
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
A. First Affirmative Defense -- Failure to State a Claim Plaintiff's Argument
The EEOC argues that Timeless already filed an unsuccessful Rule 12(b)(6) motion. Because the issue has previously been briefed and litigated, and because there are no new arguments that would justify dismissal, it is inappropriate for Timeless to raise the argument again as an affirmative defense.
Timeless argues that there is a dispute as to whether the complaint states sufficient facts to state a claim under the ADEA. The only fact alleged is that Rex and Carlberg were requested to give their ages. Such a request is not improper. Further, Rex was working two jobs and worked up until the last two months of his life when illness prevented him from working. The complaint gives rise to a dispute whether the ADEA claim is supported by sufficient facts.
The Court previously denied a Rule 12(b)(6) motion from Timeless and determined that the complaint adequately states a claim under Rule 8 for violation of the ADEA. See Court's Docket Doc. No. 15. Nothing has changed from the time of that ruling. As such, the complaint continues to state a claim. See id. The Court will grant summary judgment on this affirmative defense.*fn7 See id.
B. Second & Eighth Affirmative Defenses -- Statute of Limitations Plaintiff's Argument
The EEOC argues that 29 U.S.C. § 626, as amended by § 115 of the Civil Rights Act of 1991, incorporates the Supreme Court's holding that Title VII imposes no statute of limitations period upon the EEOC. This applies to ADEA claims brought by the EEOC. Thus, these affirmative defenses fail as a matter of law.
Timeless argues that 29 U.S.C. § 626(e) applies to the EEOC and thus, imposes a 90-day statute of limitations on the agency to file suit once it has terminated proceedings. Here, the EEOC told Timeless in February 2008 that a lawsuit was forthcoming, yet no lawsuit was filed until September, well later than 90 days.
In pertinent part, 29 U.S.C. § 626(e) reads: If a charge filed with the [EEOC] under this Act is dismissed or the proceedings of the [EEOC] are otherwise terminated by the [EEOC], the [EEOC] shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 11(a) [29 USC § 630(a)] against the respondent named in the charge within 90 days after the date of the receipt of such notice.
This Court is unaware of a Ninth Circuit opinion that directly addresses the issue of whether § 626(e)'s 90-day limitations period applies to the EEOC. One district court has found that § 626(e)'s 90 day period applies to the EEOC. McConnell v. Thomson Newspapers, 802 F.Supp. 1484, 1499-1500 (E.D. Tex. 1992). However, McConnell appears to be a distinct minority. Most courts find that the § 626(e) limitations period does not apply to lawsuits filed by the EEOC. See EEOC v. Inc. Vill. of Valley Stream, 535 F. Supp.2d 323, 325 (E.D. N.Y. 2008); EEOC v. Lennar Homes of Ariz., Inc., 2005 U.S. Dist. LEXIS 22305, *10-*11 (D. Ariz. Sept. 30, 2005); EEOC v. Venator Group, Specialty, Inc., 2002 U.S. Dist. LEXIS 1727, *5-*6 (S.D. N.Y. Feb. 5, 2002); EEOC v. AT&T Co., 36 F. Supp. 2d 994, 995-97 (S.D. Ohio 1998); EEOC v. Sara Lee Corp., 923 F.Supp. 994, 999 (W.D. Mich. 1995); Wilkerson v. Martin Marietta Corp., 875 F.Supp. 1456, 1459-60 (D. Colo. 1995). These courts generally rely on the legislative history of § 626(e) specifically, and the ADEA in general, in reaching their conclusion. See, e.g., AT&T Co., 36 F.Supp.2d at 995-97. Timeless does not sufficiently explain why the Court should follow McConnell . In the absence of controlling authority, the Court finds the majority approach persuasive. Because the 90-day limitations period of § 626(e) does not apply to suits by the EEOC, summary judgment on this affirmative defense is appropriate.
C. Third Affirmative Defense -- Failure to Mitigate Plaintiff's Argument
The EEOC argues that, because it is a government agency, the defense of mitigation has no application to it. As to mitigation regarding Rex and Carlberg, no facts substantiate this defense. It is undisputed that both Rex and Carlberg continued to seek active employment after Timeless did not hire them. Because they sought employment, they did not fail to mitigate.
Timeless argues that victims of employment discrimination are under a duty to mitigate their losses. Where an employee has failed to mitigate, back pay may be reduced or forfeited. As to Carlberg, the evidence shows that he stopped looking for work about a month after he filed his application. He was on social security disability before he applied, and remains on social security disability to date. Carlberg is not entitled to back pay from 2004 through the present. As to Rex, the evidence adduced is that he worked until illness prevented him from working. There is no proof that he suffered damages and no evidence regarding mitigation efforts. Rex failed to attend the conciliation meeting, and his failure may be viewed as a form of failure to mitigate. As to the EEOC, if they had been more prompt in their efforts, the claims for back pay would have been significantly smaller, such that the case could have resolved.
As the EEOC's reply memorandum makes clear, the EEOC's argument is that because Rex and Carlberg continued to look for employment, they did not fail to mitigate. See Court's Docket Doc. No. 50 at 4:23-24. The EEOC supports its argument through its proposed undisputed fact that, "Both Rex and Carlberg continued to actively seek employment after 2004." PUF 18. That proposed fact is based on deposition testimony from Carlberg and Adam Nostrant ("Nostrant"), who is Rex's stepson. See id. There are problems with the EEOC's position.
First, an ADEA claimant "must attempt to mitigate damages by exercising reasonable care and diligence in seeking reemployment after termination." Cassino v. Reichhold Chem., 817 F.2d 1338, 1345 (9th Cir. 1987); Jackson v. Shell Oil Co., 702 F.2d 197, 201 (9th Cir. 1983). The reasonableness of mitigation efforts depends upon the particular circumstances of the plaintiff/claimant. See EEOC v. Pape Lift, Inc., 115 F.3d 676, 684-85 (9th Cir. 1997). Simply asserting that Rex and Carlberg continued to look for work, without more, does not sufficiently indicate "reasonable care and diligence." See Cassino, 817 F.2d at 1345.
Second, the evidence cited by the EEOC does not show that Rex and Carlberg continued to actively seek employment after 2004. With respect to Carlberg, although he testified that he sought employment with two nurseries and a bus company after his application with Timeless,*fn8 see Carlberg Dep. 46:4-23, he also testified that the last time he "looked for jobs" was "probably 2005." See Carlberg Dep. 13:10-16; see also PUF 7.4. In other words, from 2005 to his deposition in 2009, Carlberg did not attempt to find work. The Court cannot find that this testimony shows reasonable care and diligence as a matter of law.*fn9 Summary judgment is inappropriate.
As for Rex, the EEOC cites two excerpts from Nostrant's deposition. See PUF 18. Page 24 lines 12 through 25 is a discussion regarding papers in Nostrant's possession that may show Rex's damages, and a statement that Nostrant has W2's from 2004 through 2007.*fn10 However, there is no discussion as to what exactly those W2's reflect. See Nostrant Dep. 24:24-25. More importantly, the fact that W2's may exist for most of the relevant time period alone says nothing about the reasonableness of mitigation efforts, it merely shows that some income was earned.
Cf. Pape Lift, 115 F.3d at 684-85; Cassino, 817 F.2d at 1345. The second excerpt runs from page 30 line 8, to page 32 line 24. That section deals with whether Rex was working in the years 2006, 2007, and 2008. See id. at 30:8-32:24. Those sections establish that Nostrant thought that Rex was working in those years, but he does not know where Rex worked, he does not know if Rex was working full or part time, he does not know if Rex was working throughout those years, he would see Rex around 3 or 4 times a month from 2005 through 2007, and he testified with respect to 2005, "I wasn't the keeper of his hours. I don't know." Id. at 30:14-33:12. Nostrant's testimony is far from certain. The testimony states a general belief as to whether Rex worked and includes a significant number of "I don't know" answers. There is a distinct lack of particulars and specific information. A generalized belief that Rex worked, without more, does not show reasonable care and diligence as a matter of law. The deposition excerpts are not a sufficient basis for the Court to grant summary judgment in the EEOC's favor. Cf. Cassino, 817 F.2d at 1345.
Finally, Timeless's opposition argues that the EEOC's failure to promptly prosecute this case increased the amount of backpay that is potentially at issue. It is true that the failure of an employee/applicant to mitigate his damages will limit the EEOC's ability to recover damages for that employee/applicant under the ADEA. See Waffle House, 534 U.S. at 296-97. However, the Court is aware of no authority that supports Timeless's argument that the EEOC itself must mitigate. Timeless cites no authority that supports its argument, and it is the defendant's burden to establish mitigation. See Cassino, 817 F.2d at 1345. Timeless has not adequately developed this theory. In the absence of authority, the Court will grant summary judgment in favor of the EEOC, to the extent that Timeless attempts to argue that the EEOC's failure to prosecute this case in a prompter fashion constitutes a failure to mitigate.
D. Fourth Affirmative Defense -- Conditions Precedent Plaintiff's Argument*fn11
The EEOC argues that it issued letters of determination that stated that relief was sought for Rex and Carlberg. The EEOC offered to conciliate. The parties held a conciliation conference on February 29, 2008. Timeless rejected the EEOC's offer. The evidence is undisputed that a conciliation effort was attempted, and suit was filed after the conciliation efforts failed. Further, as supplemental briefing shows, additional conciliation/settlement efforts were made after February 29, 2008. Finally, in response to supplemental briefing, the EEOC states that, given the position of the parties and the efforts that have been made, staying the action for further conciliation would be futile.
Timeless argues that the EEOC's conciliation efforts were to wait almost four years, hand Timeless and its new attorney a "draconian agreement," fail to work with Timeless, and then to file suit. Specifically, Timeless was shown a typed agreement with blank spaces for dollar amounts. Timeless was told that there was no room to negotiate liability, the only reason for conciliation was to determine how much money the EEOC was willing to accept, and no negotiation regarding other aspects of settlement would occur. Other aspects of the settlement included requiring Timeless to hire a consultant to oversee its operation, frequent reports to the EEOC, and opening all of its books to the EEOC. Further, Timeless was not allowed to take the conciliation agreement out of the EEOC office unless it was signed, and was told that if the agreement was not signed, the EEOC would ensure that the cost of litigation would exceed the cost of settlement. Additionally, in supplemental briefing, Timeless states that it is not amenable to the Court staying the matter for further conciliation.
On January 24, 2008, the EEOC sent letters to Timeless offering the opportunity to conciliate the claims of Rex and Carlberg. See PUF 8.10; Plaintiff's Exs. 179, 180.
On February 29, 2008, an unsuccessful conciliation conference occurred. See Plaintiff's Ex. 206; see also Shiralian Dec. ¶ 12. On the same day, the EEOC sent a letter to Timeless offering to conciliate one more time. See Plaintiff's Ex. 206. In pertinent part, the letter: (1) made note of all parties' obligation to conciliate in good faith; (2) gave Timeless until March 14, 2008, in which to agree to further conciliation; and (3) recounted that, at conciliation the EEOC had explained that it was seeking back pay and non-monetary relief for Rex and Carlberg under the ADEA because they had not been hired due to their ages, the EEOC had shown several applications that referenced age, and the EEOC indicated that a number of other applications included dates of birth or comments regarding age. Id.
On March 3, 2008, Timeless's counsel sent a letter in response. See Garcia-Bautista Dec. Ex. 6. The letter indicates that: (1) the EEOC refused to share findings and essentially wanted Timeless to take its word that discrimination occurred; (2) no evidence was presented that indicated age discrimination, and the EEOC refused to identify the name of Timeless's employee who allegedly mentioned age; (3) conclusory allegations of discrimination are insufficient; and (4) because of the "incredulous atmosphere" at the conciliation, another conciliation meeting would not be fruitful. See id. The letter concludes by stating that unless more information is provided, there is nothing further to discuss. See id.
Between March 4, 2008, and August 17, 2008, it appears that some negotiations between the parties occurred.*fn12 However, it is unknown what amount of contact occurred or what form the contact took.
On August 18, 2008, the EEOC sent a letter to Timeless's counsel. See Garcia-Bautista Dec. Ex. 7. The letter states that it would provide copies, without the customary charge, of documents that Timeless had initially produced. See id. The letter also stated that Timeless's counsel would be communicating with Timeless about a settlement, but counsel had agreed in principal to settle with a consent decree. See id. Included in the decree would be efforts to recruit employees who are over 40, record keeping, age discrimination training, posting, and reporting to the EEOC regarding progress. See id. The letter states that there is an agreement to continue discussions once the attorneys had contacted the charging parties and corporate officers regarding a monetary settlement. See id.
On September 3, 2008, the EEOC sent a letter to Timeless's counsel that purports to be a follow up to an August 25, 2008, telephone conversation. See Garcia-Bautista Dec. Ex. 8. The letter states that: (1) Timeless's counsel had agreed to injunctive relief and had offered to pay $5,000; (2) the sum of $5,000 was too small and that, excluding benefits and liquidated damages, lost wages totaled about $63,000;*fn13 (3) Timeless was willing to settle up to $7,500; (4) Timeless invited EEOC to seek headquarter approval for filing a suit; (5) before filing suit, the EEOC wanted to ensure that Timeless understood the EEOC's offer and explanation of settlement; and (6) "the EEOC's sole purpose at this point is to resolve this matter before proceeding to litigation." Id. The letter explains the injunctive relief sought as recruitment of 40-plus-year-old employees, training on age discrimination, reviewing and ensuring that Timeless has policies against age discrimination, a notice posting, and standardized hiring procedures. Id. The letter explains that damages totaling $150,000 may occur, other persons who have been discriminated against may be sought, and this would exceed a purported $20,000 in defense expenses. Id. The letter further explains that if bankruptcy concerns are at issue, the EEOC is willing to look at financial records in order to "reach a different income sensitive amount." Id. Finally, the letter provides a counter-offer of $48,000. Id.
On September 9, 2008, Timeless's counsel sent a reply letter. See Garcia-Bautista Dec. Ex. 9. The letter stated that the EEOC's proposal was not acceptable, but did agree that the mutual purpose was to avoid litigation. See id. The letter described confusion since Timeless employs many employees over the age of 40, but concluded by saying, "none of the injunctive requests burden my client, as you are essentially requiring him to continue the status quo." ...