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U.S. Equal Employment Opportunity Commission v. MVM, Inc.

United States District Court, D. Maryland

April 19, 2018

MVM, INC., Defendant.



         Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against Defendant MVM, Inc. ("MVM") alleging that MVM subjected a class of female employees to a hostile work environment based on sex and unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 99 2000e-2(a)(1), 2000e-3(a) (2012). Pending before the Court is MVM's Motion to Dismiss and the EEOC's Motion to Strike portions of MVM's Motion and its accompanying affidavit. Having reviewed the Complaint and the briefs, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For the reasons set forth below, MVM's Motion to Dismiss is DENIED, and the EEOC's Motion to Strike is GRANTED.


         The EEOC is a federal agency tasked with administering, interpreting, and enforcing Title VII. MVM is a security services firm, incorporated in California, that employs security guards in the State of Maryland.

         In August 2014, the United States Social Security Administration ("SSA") awarded a contract to MVM to provide security services for its campus in Woodlawn, Maryland. MVM inherited certain personnel from the SSA's previous contract, including Monique Wilson and Alexander Gough. Gough was the Acting Site Manager and in that capacity supervised Wilson, an armed security guard. According to the Complaint, Gough consistently subjected Wilson to inappropriate, sexually explicit comments and unwanted physical touching, despite her repeated requests that he stop. Gough also regularly subjected other female employees to similar comments and physical contact, including in the presence of SSA supervisors and managers.

         On February 18, 2016, Gough cornered Wilson on an elevator and kissed her without her consent. Wilson complained to management and identified several witnesses who would be able to corroborate certain facts leading up to the assault. On February 29, 2016, MVM's General Counsel, Christopher McHale, questioned Wilson about her complaint. Although Wilson informed him that Gough may have harassed other women, McHale did not interview any of the witnesses she had identified. On March 1, 2016, MVM terminated Wilson.

         Wilson then filed a charge of discrimination with the EEOC in which she alleged that MVM had violated Title VII. On July 20, 2017, the EEOC issued a Letter of Determination to MVM in which it stated that it had found reasonable cause to believe that MVM had violated Title VII as to Wilson and other female employees and invited MVM to participate in conciliation with the EEOC. The EEOC then engaged in communications with MVM to provide an opportunity for MVM to remedy the discriminatory practices described in the Letter of Determination. On September 13, 2017, after concluding that it could not secure an acceptable conciliation agreement from MVM, the EEOC issued to MVM a Notice of Failure of Conciliation. On September 28, 2017, the EEOC filed the present case on behalf of Wilson and a class of aggrieved female employees, alleging that MVM violated Title VII by subjecting them to sexual harassment and a sexually hostile work environment and by firing Wilson in retaliation for reporting that harassment..


         In its Motion to Dismiss, MVM argues that the Complaint must be dismissed because the EEOC has not satisfied Title VII's conciliation requirement,, a condition precedent to filing suit. In its Motion to Strike, the EEOC requests that the Court strike portions of MVM's memorandum in support of its Motion and an accompanying affidavit because they convey information from conciliation discussions, in violation of 42 U.S.C. S 2000e-5(b).

         I. Motion to Dismiss

         Although MVM characterizes its Motion as a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), its motion is properly classified as a motion to dismiss for failure to state a claim under Rule 12(b)(6). In Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015), the United States Supreme Court held that the appropriate remedy for a failure to satisfy Title VII's conciliation requirement is to order the EEOC to engage in conciliation and to stay the case, if necessary, to allow for such discussions. Id. at 1656. In so ruling, the Court did not describe the conciliation requirement as jurisdictional and effectively concluded that a court could exercise jurisdiction over the case even before conciliation had been satisfactorily completed. See Id. Under these circumstance,, and in the absence of a clear statement in the statute that the conciliation requirement is jurisdictional, this Court construes the Motion as seeking dismissal for failure to state a claim under Rule 12(b)(6). See Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006); EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 (5th Cir. 2009).

         To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

         MVM argues that the EEOC's complaint must be dismissed because the EEOC has not satisfied the requirement in Title VII that the EEOC must "endeavor to eliminate any . . . alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion" before filing suit in federal court. 42 U.S.C. ¶ 2000e-5(b). The Supreme Court has recently provided guidance on the parameters of this requirement.. In Mach Mining, the Court held that the EEOC's compliance with the conciliation requirement is subject to judicial review, but described such an inquiry as a "relatively barebones" review to ensure that the EEOC has "communicate[d] in some way (through conference, conciliation, and persuasion) about an alleged unlawful employment practice in an endeavor to achieve an employer's voluntary compliance." Mach Mining, 135 S.Ct. at 1656 (internal citations omitted).

         Specifically, such a review is conducted to ensure that the EEOC has satisfied two requirements. First, the EEOC must have "inform[ed] the employer about the specific allegation, as [it] typically does in a letter announcing its determination of 'reasonable cause.' Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result." Id. at 1655-56 (internal citation omitted). Second, the EEOC must "try to engage the employer in some form of discussion (whether ...

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