United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
Kathy Karmid (“Ms. Karmid”) initiated this action
on May 25, 2017, alleging that her employer, Defendant
Midwest Regional Medical Center (“MRMC”),
violated the Age Discrimination in Employment Act
(“ADEA”) by paying her less than it pays its
younger employees. See Compl. (Doc. No. 1-2). In an
order dated November 17, 2017, the Court determined that the
Equal Employment Opportunity Commission (“EEOC”)
had “failed to fulfill its statutory obligation to
[MRMC], ” Order (Doc. No. 9) at 3, namely that the EEOC
must “seek to eliminate [the] alleged unlawful practice
by informal methods of conciliation, conference, and
persuasion, ” 29 U.S.C. § 626(d)(2). The Court
stayed the action so that the EEOC could discharge its
statutory obligation after resubmission of Ms. Karmid's
discrimination charge. See Order at 5.
Karmid now moves the Court to reconsider its November 17,
2017 ruling. See Pl.'s Mot. to Reconsider (Doc.
No. 10). MMRC has responded in opposition (Doc. No.
14). The EEOC, as amicus curiae, has appeared in the action
and has filed a brief in support of Ms. Karmid's Motion
to Reconsider (Doc. No. 17). For the reasons set forth below,
Ms. Karmid's Motion is granted.
to reconsider, though “not formally recognized by the
Federal Rules of Civil Procedure . . . are routinely
entertained, in one form or another, by federal
courts.” Christ Ctr. of Divine Philosophy, Inc. v.
Elam, No. CIV-16-65-D, 2018 WL 1770491, at *1 (W.D.
Okla. Apr. 12, 2018), aff'd, No. 18-6089, 2019
WL 644215 (10th Cir. Feb. 15, 2019). Reconsideration may be
predicated on one or more of three grounds: “(1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, [or] (3) the need to correct clear
error or prevent manifest injustice.” Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Thus, a motion to reconsider “is appropriate where the
court has misapprehended the facts, a party's position,
or the controlling law.” Id. “It is not
appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior
ADEA creates a private right of action for “any person
aggrieved” by an unlawful practice as defined by 29
U.S.C. § 623. 29 U.S.C. § 626(c)(1). Before
exercising this private right of action, an aggrieved person
must submit a charge of discrimination to the EEOC and wait a
minimum of 60 days. See Id. § 626(d)(1). Upon
receiving the charge, the EEOC must “notify all persons
named” therein and “seek to eliminate any alleged
unlawful practice by informal methods of conciliation,
conference, and persuasion.” Id. §
the 60-day period elapses, the aggrieved person may file suit
in court unless and until the EEOC files suit on his or her
behalf. Id. § 626(c)(1) (stating
that “the right of any person to bring [a civil] action
shall terminate upon the commencement of an action by the
[EEOC] to enforce the right of such employee”). If the
EEOC pursues litigation on behalf of an aggrieved person, it
must first “attempt to eliminate the discriminatory
practice or practices alleged, and to effect voluntary
compliance . . . through informal methods of conciliation,
conference, and persuasion.” Id. §
VII contains parallel provisions, the interpretation of which
is instructive, if not determinative, with respect to the
question under review. See Shikles v. Sprint/United Mgmt.
Co., 426 F.3d 1304, 1309 (10th Cir. 2005) (“To the
extent that the charge filing requirements of the ADEA and
Title VII are similar, courts must construe them
consistently”), abrogated on other grounds by
Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018).
Like ADEA suits, Title VII suits may be brought by aggrieved
persons or by the EEOC on their behalf. See 42
U.S.C. § 2000e-5(f)(1). And, as under the ADEA, Title
VII requires the EEOC to notify any employer charged with
discrimination and attempt conciliation. See Id.
§ 2000e-5(b). Finally, as under the ADEA, a conciliation
effort is a precondition to the filing of a Title VII lawsuit
by the EEOC. See Id. § 2000e-5(f)(1).
order under review, the Court held that Ms. Karmid could not
proceed with her lawsuit, even though she had exhausted her
administrative remedies, because the EEOC had failed to
attempt conciliation as required by 29 U.S.C. §§
626(d)(2) and 626(b). See Order at 3-5. This holding
is predicated on the notion-challenged by Ms. Karmid via her
Motion to Reconsider-that conciliation is a statutory
prerequisite to the filing of an individual action under the
ADEA. Ms. Karmid submits, and the EEOC agrees, that the
EEOC's failure to attempt conciliation has no bearing on
the procession of this action. Having carefully considered
the arguments, the Court is compelled to agree.
EEOC's duty to attempt conciliation is mentioned at 29
U.S.C. §§ 626(d)(2) and 626(b). Section 626(d)(2)
states that the EEOC “shall” attempt
conciliation, presumably in all cases. Section 626(b), on the
other hand, provides that the EEOC “shall”
attempt conciliation “[b]efore instituting any
action” on behalf of an aggrieved person. To appreciate
the distinction between these two sections, some background
is helpful. Until 1972, the EEOC was not empowered to bring
suits on behalf of aggrieved persons. E.E.O.C. v. Zia
Co., 582 F.2d 527, 532-33 (10th Cir. 1978). During this
time, the EEOC was required to attempt conciliation, as under
29 U.S.C. § 626(d)(2) (in the ADEA context) and 42
U.S.C. § 2000e-5(b) (in the Title VII context), but an
individual action by an aggrieved person “could not be
held up pending [the EEOC's] conciliation” efforts.
Id. at 532. “Only after the 1972 law changes,
when the EEOC commenced suing, did the need for conciliation
efforts as a prerequisite to suit . . . arise.”
Id. Thus, the statutes were amended to incorporate
the language now found at 29 U.S.C. § 626(b) and 42
U.S.C. § 2000e-5(f)(1).
sections-enacted in response to the EEOC's newfound power
to initiate lawsuits under the ADEA and Title VII,
respectively-apply only to suits initiated by the EEOC.
Accordingly, the EEOC's “failure . . . to initiate
conciliation efforts will not bar a civil action by the
aggrieved individual.” Shehadeh v. Chesapeake &
Potomac Tel. Co. of Md., 595 F.2d 711, 727-28 (D.C. Cir.
1978) (footnote omitted); accord United States v.
Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 869 (5th
Cir. 1975) (stating that “an effort to conciliate by
the EEOC is not in any sense a condition precedent to the
charging party's right to seek judicial consideration of
his grievance” because “the aggrieved individual
is not responsible for the actions and inactions of the
agency” (internal quotation marks omitted));
DeAngelis v. Circle K Stores, Inc., No. 14-21112,
2015 WL 4397528, at *5 (S.D. Fla. July 17, 2015)
(“[T]he conciliation requirement only applies when the
EEOC is bringing an action against an employer, not when a
private litigant is suing his or her employer.”). This
conclusion is consistent with the statute's plain
language and history and is not inconsistent with the U.S.
Supreme Court's decision in Mach Mining, LLC v.
E.E.O.C, 135 S.Ct. 1645 (2015),  on which this Court's
November 17, 2017 order relies.
above-stated reasons, the Court concludes that
reconsideration is necessary to correct clear error and
prevent injustice. See Servants of Paraclete, 204
F.3d at 1012. Plaintiffs Motion to Reconsider (Doc. No. 10)
is therefore GRANTED. The Court's prior Order (Doc. No.
9) is VACATED. ...