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U.S. Equal Opportunity Commission v. Dillard's Inc.

July 14, 2011

U.S. EQUAL OPPORTUNITY COMMISSION,
PLAINTIFF,
v.
DILLARD'S INC., DILLARD STORE SERVICES, AND DOES 1-11, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief JudgeUnited States District Court

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO PRECLUDE CLAIMS

[Doc. No. 31]

Presently before the Court is a motion to preclude claims by the United States Equal Opportunity Commission ("EEOC") on behalf of persons other than Corina Scott, filed by Defendants Dillard's Inc. and Dillard Store Services, Inc. (collectively "Dillard's"). [Doc. No. 31.] For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.

BACKGROUND

On June 12, 2006, Corina Scott, a former employee at Dillard's El Centro store, filed a charge with the EEOC alleging disability discrimination. Scott claimed that a store manager violated her rights under the Americans with Disabilities Act ("ADA") by terminating her employment because, after missing work due to an illness, she provided physician's notes stating she missed work for medical reasons, but she refused to provide a note stating the nature of her illness. The EEOC notified Dillard's of Scott's claim and initiated an investigation.

The "Notice of Charge of Discrimination" issued by the EEOC sought a position statement from Dillard's, but did not request specific information or documents. A checked box on the top right corner of the Notice indicated that Scott "claim[ed] to be aggrieved," but not that she was filing on behalf of others. After receiving the charge, Dillard's submitted the following to the EEOC: a position statement; excerpts from Scott's personnel file; a list of other El Centro associates who, like Scott, had been discharged for excessive absenteeism between January 1, 2006, and July 1, 2006; and the attendance policy of Dillard's El Centro store, which stated that for a health-related absence to be excused, the employee was required to present a physician's note identifying the nature of the employee's illness.

The EEOC then issued a Request for Information, seeking termination documents and other information for the thirty-two El Centro store associates previously identified by Dillard's, additional information regarding Scott, and information regarding Brittany Rios Kim, a former employee of the El Centro store whom Dillard's had not previously identified. The EEOC also asked whether the policy regarding doctor's notes was a companywide policy; Dillard's confirmed it was. Over the course of an approximately two-year investigation, the EEOC sought no additional information from Dillard's.

On August 10, 2007, the EEOC issued a Determination letter, stating: Based upon the analysis of the evidence the Commission has determined that reasonable cause exists to believe that Charging Party [Scott] and at least one similarly-situated individual was subjected to disability-related/medical inquiries in violation of the ADA. Furthermore, reasonable cause exists to believe that [Scott] was subjected to discharge in retaliation for having opposed and/or complained about [Dillard's] policy requiring disclosure of disability-related medical information in violation of the ADA.

[Decl. of Nanette Savage ISO Def.'s Mot. [hereinafter "Savage Decl."], Ex. 6 (the Determination letter).] Therefore, the EEOC's determination on disability inquiries was limited to Scott and "at least one similarly situated employee," and its determination on retaliatory discharge was limited to Scott. The Determination further indicated the EEOC had completed its investigation and it would begin conciliation efforts "to resolve all matters where there is reason to believe that violations have occurred."

On August 17, 2007, the EEOC began conciliation efforts, proposing to settle "all monetary damages for [Scott] and identified class member Brittany Rios Kim" for a "global figure of $325,137.50," which purported to "constitute[] pecuniary, compensatory (lost wages, benefits, etc.), non-pecuniary compensatory (emotional distress, pain and suffering), and punitive damages." [Id. Ex. 7.] Rios Kim was not one of the associates about whom Dillard's initially disclosed information to the EEOC, but she was the only associate, other than Scott, about whom the EEOC specifically sought information during its investigation. The Offer of Conciliation did not seek or suggest a process for indentifying "other aggrieved individuals," "similarly-situated individuals," or "class members," and it did not seek damages for a putative class.

The Offer of Conciliation also sought to revise Dillard's companywide disability discrimination policy, which was neither requested nor produced during the investigation. The offer did not reference Dillard's attendance policy specifying the required content for a doctor's note to excuse an absence- the policy at the center of Scott's claim. Nor did the offer define the geographic scope of the requested changes to Dillard's policy. The Offer of Conciliation concluded:

Please note that the Commission reserves the right to seek any and all appropriate relief under the applicable statute in the event that conciliation is not successful and litigation is commenced. That is, additional remedies provided by law may be sought for additional class members and time periods over and above the remedies described herein. . . . The above proposals are lower than the remedies the Commission may seek if litigation is commenced in order to allow your organization to resolve the matter in good faith without court action.

] Dillard's declined the Offer of Conciliation on August 21, 2007. On August 27, 2007, the EEOC issued a notice that further conciliation efforts would be futile, pursuant to 42 U.S.C. § 2000e-5(b).

On September 29, 2008, the EEOC initiated this action. The EEOC's complaint makes specific allegations pertaining only to Scott and Rios Kim. It also refers to "other similarly-situated individuals," and Dillard's "practices," but it does not identify other individuals or define the substantive or geographic scope of the alleged "practices." It describes Dillard's as corporation doing business in El Centro, California, but makes no reference to Dillard's national presence.

After Dillard's answered the EEOC's complaint, the EEOC issued a request for written discovery, nationwide in scope. Dillard's now moves to preclude all claims by the EEOC on behalf of individuals other than Corina Scott. In the alternative, Dillard's seeks to limit the EEOC's claims on behalf of current and former employees of its El Centro store. ...


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