JOHN T. NIXON, Senior District Judge.
Pending before the Court is Defendant's Motion to Stay Proceedings and Order Adequate Conciliation Pursuant to 42 U.S.C. § 2000e-5 (b) and Memorandum in Support (Doc. Nos. 10 11), to which Plaintiff has filed a Response in Opposition and Memorandum in Support (Doc. Nos. 15 16). In support of its motion, Defendant has also submitted the Affidavit of J. Kevin Hughart, the president of Norvell Wallace, Inc. (Doc. No. 12.) In support of its Response in Opposition, Plaintiff has submitted the Affidavit of Phyllis D. Ellis (Doc. No. 17) and the Affidavit of Lu Ann Hawk (Doc. No. 18). Defendant has also filed a Reply to Plaintiff's Response. (Doc. No. 21.) For the forgoing reasons, the Court will deny Defendant's Motion.
BACKGROUND
Defendant Norvell Wallace, Inc. ("Norvell") is in the business of selling lumber in Middle Tennessee. (Doc. No. 12, Aff. of J. Kevin Hughart, p. 1.) Norvell's president is J. Kevin Hughart ("Hughart"). (Id.) In late July or early August, Norvell received a copy of a charge of discrimination that had been filed with the Plaintiff in this action, the Equal Employment Opportunity Commission ("EEOC"), by Mohammed Eskander, a former Norvell employee. (Id.) Phyllis Ellis, a Senior Investigator in Plaintiff EEOC's Nashville Area Office, was assigned toMohammed Eskander v. Norvell Wallace, Inc., Charge Number 253-AO-1081 ("the charge"). (Doc. No. 17, Aff. of Phyllis D. Ellis, p. 1.)
On August 19, 2002, a Determination was issued on the charge finding reasonable cause to believe that Norvell had subjected Mohammed Eskander, and other Iraqi employees, to harassment by their supervisor because of their national origin. (Id., Attach. Determination EEOC 40-41.) Moreover, the Determination concluded that Mr. Eskander' s national origin was a determining factor in his discharge by Norvell. (Id.) On the same day, Ms. Ellis also prepared, and subsequently sent, a letter to Hughart. (Id., Attach. EEOC 42-44.) The letter inquired whether Norvell would be amenable to engaging in conciliation efforts, and explained the necessary steps to develop a conciliation agreement acceptable to Plaintiff. (Id.) Pursuant to Ms. Ellis's letter, Norvell was required, should it decide to cooperate in the conciliation process, to: (1) provide the EEOC with the names and contact information for all of the Iraqi employees who were employed with Norvell during the relevant time period; and (2) discuss appropriate remedies for all those employees which the EEOC determined were victims of the unlawful harassment. (Id.)
On August 23, 2002, Mr. Hughart contacted Ms. Ellis by telephone and informed her that Norvell was willing to engage in conciliation and would provide a list of employees. (Doc. No. 17, Aff. of Phyllis D. Ellis, p. 2; see also Doc. No. 17, Attach. Case Log EEOC 13; Doc. No. 12, Aff. of J. Kevin Hughart, p. 2.) On August 25, 2002, Ms. Ellis was reassigned by Plaintiff EEOC to a Charge Receipt Supervisor position. (Doc. No. 17, Aff. of Phyllis D. Ellis, p. 2.) However, prior to turning in the files on the charges that she had been investigating or conciliating, Ms. Ellis called Hughart and left him a message inquiring when the list of Iraqi employees would be available. (Doc. No. 17, Attach. Case Log EEOC 13.) According to Ms. Ellis, Mr. Hughart never responded to her message, nor was the list of Iraqi employees provided to the EEOC during the period which the EEOC claims was inclusive of the conciliation effort on the charge. (Doc. No. 17, Aff. of Phyllis D. Ellis.)
On September 9, 2002, Lu Ann Hawk was assigned by the EEOC to complete the conciliation effort on the charge. (Doc. No. 18, Aff. of Lu Ann Hawk. p. 1.) On September 16, 2002, Ms. Hawk telephoned Hughart and asked him when the EEOC could expect the list of employees. (Id. at 2.) According to Ms. Hawk, Hughart never responded to the question; but instead, Hughart began discussing the merits of the charge and his disagreement with the Determination. (Id.) Ms. Hawk informed him that if he disagreed with the Determination that he could request a reconsideration. (Id.) Ms. Hawk further informed him that due to the fact that he had not submitted the requested information, she would recommend an unsuccessful conciliation due to non-cooperation. (Id.) Ms. Hawk then proceeded to make an entry in her Case Log noting her impression that Defendant "wants case [sic] reconsidered" and was "not willing to conciliate at this time." (Id., Attach. Case Log EEOC 13.) Subsequently, on September 24, 2002, a Notice of Conciliation Failure was mailed to Norvell. (Id., Attach. Notice EEOC 34.)
According to Hughart, it has always been Norvell's intention to engage in conciliation. (See Doc. No 12, Aff. of J. Kevin Hughart.) Defendant avers that Hughart' s inquiries into how to contest the Determination and, more specifically, Hughart' s September 16, 2002 conversation with Ms. Hawk were misunderstood and misconstrued as an abandonment of conciliation. (Doc. No. 11.) Defendant claims that it never intended to abandon the conciliation process. (Id.) Moreover, Defendant asserts that the conciliation process had not begun when it was foreclosed; therefore, the EEOC did not fulfill its duty to attempt to come to a conciliation agreement prior to filing suit. (Id.)
LEGAL STANDARD: CONCILIATION
42 U.S.C. § 2000e-5 (b) provides, in relevant part, that "[w]henever a charge is filed . . . [i]f the Commission determines . . . that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5 (b). In interpreting 42 U.S.C. § 2000e-5, 29 C.F.R. § 1601.24 provides,
[i]n conciliating a case in which a determination of reasonable cause has been made, the Commission shall attempt to achieve a just resolution of all violations found and to obtain agreement that the respondent will eliminate the unlawful employment practice and provide appropriate affirmative relief . . . [w]hen a suit brought by the Commission is in litigation, the General Counsel is hereby delegated the authority to negotiate and sign conciliation agreements where, pursuant to section 706(f)(1) of Title VII, a court has stayed processings in the case pending further efforts of the Commission to obtain voluntary compliance.
29 C.F.R. § 1601.24.
Analogously, 42 U.S.C. § 2000e-5 (b) (f) mandate that following a reasonable cause determination the EEOC must attempt to conciliate the discrimination claim with the employer before it can initiate litigation in the district court. EEOC v. Keco Industries, Inc., 373 F.2d 1097, 1101 (citing 42 U.S.C. § 2000e-5 (b), (f); EEOC v. Sears Roebuck and CO., 650 F.2d 14, 18-19 (2nd Cir. 1981); Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976)). Only after the EEOC is unable to obtain a conciliation agreement which is acceptable to the Commission may the agency file suit. Id. Although, prior to filing a lawsuit the EEOC must make a good faith effort to conciliate the claim, the EEOC is under no duty to attempt further conciliation after an employer rejects its offer. Keco, 373 F.2d at 1101-1102 (citing EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979); EEOC. v. Zia Co., 582 F.2d 527 (10th Cir. 1978)). As noted by the Sixth Circuit, "once the employer rejects the conciliation attempts, the EEOC is free to file suit under Title VII." Id. When the conciliation attempt by the EEOC is challenged, "[t]he district court should only determine whether the EEOC made an attempt at conciliation. The form and substance of those conciliations is within the discretion of the EEOC as the agency created to administer and enforce our employment discrimination laws and is beyond judicial review." Keco, 373 F.2d at 1102.
Conciliation is "a flexible and responsive process which necessarily differs from case to case." EEOC v. Kaiser Foundation Health Plans, Inc., 1999 WL 420116 (N.D. Ohio May 12, 1999) (citation omitted). The EEOC need only make a sincere and reasonable effort to negotiate the charge. Id. If a district court finds that the conciliation efforts by the EEOC fall short of the good faith effort required, the appropriate remedy is not a dismissal, but a stay of the proceeding so that conciliation may take place. ID. (citing EEOC v. Prudential Fed. Savings Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985); EEOC v. Rymer Foods, Inc., No. 88 C 10680, 1989 WL 88243 at *1 (N.D.Ill. July 31, 1989)).
DISCUSSION
Defendant moves the Court to find that the EEOC did not engage in a good faith effort with Norvell to conciliate, and that these proceedings should stayed so that conciliation may take place. Defendant asserts two arguments. First, Defendant claims that the actual conciliation process had not begun when Norvell received the Notice of Conciliation Failure from the EEOC; therefore, the EEOC failed to fulfill its statutory duty to attempt conciliation prior to filing suit in a district court. The Court finds this argument to be disingenuous. The following excerpts from the EEOC's letter inviting Norvell to engage in conciliation are especially probative: "The purpose of this letter is to request that Norvell Wallace join with the Commission in an attempt to eliminate the alleged unlawful practices by informal methods of conciliation"; "In order to develop a conciliation agreement acceptable to the Commission, the following steps will be necessary"; "Please let me know as soon as possible if Norvell Wallace is willing to engage in conciliation efforts in the manner described above"; "I must hear from you on this no later than August 30, 2002, or the Commission will conclude that its efforts to conciliate this matter have been unsuccessful"; and "Thank you for consideration of this conciliation proposal." (See Doc No. 18, Aff. of Lu Ann Hawk, Attach. EEOC 42-44.) It is evident from the record, particularly the letter from the EEOC inviting Norvell to engage in conciliation, that once Norvell notified the EEOC that it would be willing to engage in conciliation the "process" to secure a final conciliation agreement had begun. (See also Doc. Nos. 17 18, Aff.'s of Phyllis D. Ellis Lu Ann Hawk.) The Court, accordingly, finds Defendant's first argument to be without merit.
Norvell's next argument is that the conciliation attempt in this action was inadequate and not taken in good faith. As Congress has recognized, the courtroom is not always the best forum for settling workplace disputes and many employers would prefer a speedy, non-adversarial resolution of their claims rather than protracted litigation. See Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp.2d 1237, 1241 (M.D. Ala. 2001). Based on this premise, Congress has concluded that administrative tribunals are better suited "to handle the complicated issues involved in employment discrimination cases," Dinkins, 133 F. Supp.2d at 1241-1242 (citing Pearce v. Barry Sable Diamonds, 912 F. Supp. 149, 152 (E.D. Pa. 1996)), and that one of the EEOC's "most essential functions is to attempt conciliation" Id. (citing EEOC v. Pet, Inc., 612 F.2d 1001, 1002 (5th Cir. 1980) (per curiam)); see also Keco, 373 F.2d at 1101-1102. Resolution by the administrative tribunal is preferred because "the sorting out of the complexities surrounding employment discrimination can give rise to enormous expenditure of judicial resources in already heavily overburdened Federal district courts." Dinkins, 133 F. Supp.2d at 1241-1242 (citing Pearce, 912 F. Supp. at 152). Accordingly, when the EEOC determines "that there is reasonable cause to believe that the charge is true," then it has a statutory duty to "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Id. (citing Pet, Inc., 612 F.2d 1001, 1002); see also Keco, 373 F.2d 1097; Radiator Specialty Co., 610 F.2d 178; Zia Co., 582 F.2d 527; Kaiser Foundation, 1999 WL 420116.
However, when this process fails, the Court's only role in evaluating the EEOC's conciliation efforts is determining "the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." Id. (citing EEOC v. Klingler Elec. Corp., 636 F.2d 140, 107 (5th Cir. 1981)); Kaiser Foundation, 1999 WL 420116 (requiring the EEOC to show that it made a sincere and reasonable effort to conciliate). The form and substance of the conciliation attempt is within the discretion of the EEOC and is beyond judicial review. Keco, 373 F.2d 1102. Thus, the Court must determine whether EEOC made good faith effort in the conciliation process.
At the outset, the EEOC, in its conciliation attempt, very clearly outlined the steps necessary to reach an agreement acceptable to the Commission in its letter inviting Norvell to engage in conciliation. (See Doc No. 18, Aff. of Lu Ann Hawk, Attach. EEOC 42-44.) Thereafter, both Phyllis D. Ellis and Lu Ann Hawk made follow-up calls to Hughart to monitor the progress of the conciliation process. (See Doc. Nos. 17 18, Aff. of Phyllis D. Ellis Aff. of Lu Ann Hawk.) Specifically, Ms. Ellis telephoned Hughart to ask when the list of Iraqi employees would be provided; however, Hughart never responded to the message left by Ms. Ellis. (Doc. No. 17.) On September 16, 2002 Ms. Hawk also telephoned Hughart to inquire about the list of Iraqi employees. (Doc. No. 18, Aff. of Lu Ann Hawk.) In this conversation Hughart also dodged inquiries into when the list of Iraqi employees would be available. (Id.) Instead, Hughart admittedly used this opportunity to argue the Determination. (See Doc. Nos. 11 12, Def.'s Mem. in Supp. Aff. of J. Kevin Hughart; see also Doc. No. 18, Aff. of Lu Ann Hawk.) Ms. Hawk informed Hughart that they were in the conciliation phase and that failure to provide the requested information would indicate that Norvell was not willing to conciliate. (See Doc. No. 18, Aff. of Lu Ann Hawk.) At that point, according to Ms. Hawk, Hughart stated that the company wanted to work things out; however, Hughart also stated that the company did not have any settlement proposal in mind, nor were they willing to offer money to settle the case. (Id.) Hughart, thereafter, returned his attention to disputing the Determination. (Id.) In response, Ms. Hawk related to Hughart the channels necessary to challenge the Determination. (Id.) Further, Ms. Hawk asserts that she informed Hughart that she had no choice but to recommend unsuccessful conciliation due to non-cooperation. (Id.)
In its Reply, Defendant acknowledges that Ms. Hawk made the statement that failure to provide the requested information would result in the Commission finding a failure of conciliation, and even highlights that Hughart responded that the company wanted to work things out. (Doc. No. 21.) Defendant even acknowledges that Ms. Hawk provided him with the information on how to challenge the Determination, although he claims that it was his mistaken belief that this was how the conciliation process was to begin. (See Doc. No. 12, Aff. of J. Kevin Hughart.) Defendant, however, fails to address, or even deny, the other parts of the conversation related by Ms. Hawk. More importantly, Defendant fails to address the impact of his remarks on Ms. Hawks perception of whether Norvell was willing to engage in some sort of meaningful conciliation and the reasonableness of such an impression based on these circumstances. (See Doc. No. 21.) It is clear to this Court from a review of the record and the affidavits submitted by both parties that it was indeed reasonable for Ms. Hawk to conclude that Norvell had abandoned conciliation efforts at that time to pursue reconsideration of the Determination. Accordingly, the Court finds that the EEOC did make a good faith attempt to conciliate with Norvell, and that Ms. Hawk's conclusion that Norvell was no longer willing to engage in conciliation was reasonable in light of the surrounding circumstances.
Also notably, Defendant did not expressly assert that the EEOC's determination that the conciliation effort had failed was unreasonable under the circumstances in this case. Defendant only insists that any belief that Norvell was abandoning the conciliation process was premised on a misunderstanding and was unintended. The crux of Defendant argument is that the EEOC misunderstood Hughart's inquiries into how to challenge the Determination as an abandonment of conciliation process. Norvell contends that it never intended to abandon the conciliation process. This miscommunication, according to Defendant, somehow renders the EEOC conciliation attempt inadequate. The Court disagrees. The Court finds that Defendant's actions were at least ambiguous and contradictory. Further, the Court finds that the EEOC is not accountable for the obscured intentions of Defendant and its determination, as noted above, was reasonable under these circumstances. Moreover, the only fact that Defendant advances to support an allegation that the EEOC did not act in good faith is that the suit was filed on October 2, 2002 and that the Notice of Conciliation Failure was sent on September 24, 2002. The Court, likewise, finds this argument unpersuasive in light of the surrounding circumstances, especially Hughart' s declaration that Norvell was not willing to offer any monetary relief and his outwardly uncooperative attitude. See also Kaiser Foundation, 1999 WL 420116.
CONCLUSION
For the reasons mentioned above, the Court finds that the EEOC put forth a good faith effort to conciliate the claim with Defendant. Accordingly, Defendant's Motion to Stay Proceedings and Order Adequate Conciliation is hereby DENIED.