Equal Employment Opportunity Commission v. PBM Graphics Inc. (877 F. Supp. 2d 334, 2012)

United States District Court for the Middle District of North Carolina 2012-06-28

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

The Equal Employment Opportunity Commission (“EEOC” or “the Commission”) contends that PBM Graphics Inc. (“PBM”) has, since January 2003, engaged in a pattern or practice of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.), by favoring Hispanic temporary workers in its work-assignment practices. PBM, contending that the EEOC’s suit is untimely and without merit, has filed motions for dismissal (Doc. 12) and summary judgment (Doc. 14), and PBM’s motions came before the court for hearing on June 5, 2012. For the reasons that follow, the court finds that the EEOC has stated a claim upon which relief can be granted and has met all statutory prerequisites for filing suit. However, the record reveals that the EEOC’s delay in bringing this litigation was unreasonable and may have unduly prejudiced PBM, and the court will order limited discovery to resolve that question.

I. BACKGROUND

The complaint, viewed in a light most favorable to the EEOC for purposes of PBM’s motion to dismiss, alleges the following:

PBM is a commercial-printing manufacturer headquartered in Durham, North Carolina, that employs at least fifteen individuals. (Doc. 1 at 2 ¶ 4.) Though the company employs a large number of full-time employees, PBM’s employment needs fluctuate based on its workload, and it routinely hires temporary workers from a placement agency to meet its production requirements. (Id. at 3 ¶ 8.) Despite the turnover in its temporary workforce, PBM employs a “core group” of temporary workers of approximately 10 to 15 individuals per shift for each of its five shifts. (Id. at 4 ¶ 9.) These “core” temporary workers enjoy the benefits of being told to return to work day after day unless management indicates otherwise, being assigned to longer-term assignments, and occasionally being asked to become permanent employees at PBM. (Id.)

During the course of an unrelated investigation into the hiring practices of PBM’s staffing agency, the EEOC learned that PBM told the staffing agency that it preferred Hispanic temporary workers. (Id. ¶8.) According to the EEOC, although PBM’s staffing agency sent both Hispanic and non-Hispanic workers for PBM’s consideration, PBM “disproportionately rejected” non-Hispanic workers “while Hispanic temporary workers who were equally or less qualified were allowed to work.” (Id.) The EEOC contends that this practice has resulted in PBM’s “core group” of temporary workers being “disproportionately composed” of Hispanic workers (id. ¶ 9) and in PBM providing fewer hours to its non-Hispanic temporary workers (id. at 5 ¶ 11). As a result, the EEOC charges, PBM intentionally engaged in a pattern or practice of employment discrimination against similarly qualified non-Hispanic temporary workers based on their national origin in two ways: first, by predominantly placing or assigning Hispanic temporary workers to its “core group” of temporary workers; and second, by assigning fewer work hours to its non-Hispanic temporary workers. (Id. ¶¶ 10-11.)

II. ANALYSIS

A. Motion to Dismiss

1. Failure to State a Claim

PBM moves to dismiss the EEOC’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the Commission has failed to allege sufficient facts to state a claim upon which relief can be granted. PBM’s arguments rest on the distinction between two provisions of Title VII that grant the EEOC authority to investigate and pursue claims of employment discrimination. The first of these provisions, Section 706, PBM contends, authorizes the EEOC to recover injunctive relief, back pay, and compensatory and punitive damages on behalf of particular individuals who have been victims of a company’s discriminatory employment practices. (Doc. 13 at 9 (citing 42 U.S.C. § 2000e-5).) The second provision, Section 707, permits the EEOC to seek equitable relief against an employer who engages in a “pattern or practice” of discrimination. (Id. at 6 (citing 42 U.S.C. § 2000e-6).) PBM argues that the EEOC may not seek compensatory and punitive damages against an employer, as it purports to do here, merely by alleging a “pattern or practice” of discrimination under section 707. Instead, it contends, the EEOC must allege facts sufficient to state a prima facie case of discrimination — (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment for similarly situated individuals outside the protected class — to state a claim for compensatory or punitive damages. (Id. at 11 (quoting Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.2010), aff'd — U.S. —, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012)).) PBM contends that the EEOC’s claims fail as a matter of law because the complaint does not identify a single person allegedly discriminated against, allege any facts showing that the workers who were supposedly discriminated against were “equally or more qualified” than the unidentified Hispanic workers favored by PBM, or provide a factual basis to support its claim that national origin was the motivating factor in PBM’s decision to assign certain Hispanic workers to its “core group” of temporary employees. (Id. at 12-14.) PBM also contends that if the EEOC may seek compensatory and punitive damages by alleging a “pattern or practice” of discrimination, it has still failed to allege facts demonstrating that its discrimination was “routine” or the company’s “standard operating procedure,” as required by section 707. (Doe. 13 at 7, 9.)

The EEOC responds by characterizing PBM’s distinction between sections 706 and 707 as artificial and contends that the complaint states a claim of “pattern or practice” discrimination under both. (Doc. 26 at 10.) Furthermore, argues the EEOC, there is no requirement that it identify any particular individuals subject to discrimination or that it plead specific facts tending to show that similarly-situated non-Hispanic workers were treated differently from PBM’s Hispanic workers. As a result, the EEOC contends, the complaint’s factual allegations, while admittedly lean, suffice to state a claim for relief that is plausible on its face.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotation marks omitted). In evaluating a motion to dismiss, the court must “accept as true all of the factual allegations contained in the complaint,” Kunda v. C.R. Bard, Inc., 671 F.3d 464, 467 (4th Cir.2011) (citation and internal quotation marks omitted), though the court should disregard “statements of bare legal conclusions” which “ ‘are not entitled to the assumption of truth,’ ” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.2011) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). Thus, courts follow a “two-pronged approach” in assessing the sufficiency of a complaint. Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir.2012). First, the complaint must “contain factual allegations in addition to legal conclusions” and, second, the factual allegations, accepted as true and stripped of all legal conclusions, must state a claim to relief that is “plausible on its face.” Id. (citation and internal quotation marks omitted). Although the complaint need not contain “detailed factual allegations” to be plausible, it must nevertheless “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Much of the parties’ dispute centers on what a plaintiff must allege to plead a “pattern or practice” of discrimination under section 707. However, “[a] pattern or practice case is not a separate and free-standing cause of action ... but is really ‘merely another method by which disparate treatment can be shown.’ ” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir.2001) (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1219 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)); see also Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 762 (4th Cir.1998) (finding support in Mooney for its conclusion that private, non-class action plaintiffs may not rely on a pattern or practice method of proof for Title VII claims), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999). Indeed, like McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a case establishing a method for individuals to prove disparate treatment in the absence of direct proof of discrimination, the term “pattern or practice” is a “means by which courts can assess whether a particular form of statutorily prohibited discrimination exists.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 183 (3d Cir.2009); Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir.2004) (characterizing a “pattern or practice” case as a “method of proving discrimination”); Majeed v. Columbus Cnty. Bd. of Educ., 213 F.3d 631, at *4 n. 2 (4th Cir.2000) (per curiam) (unpublished table decision) (explaining that the term “pattern or practice” normally refers to a method of proving discrimination).

The Supreme Court has explained that such evidentiary standards are distinct from pleading requirements under Federal Rules of Civil Procedure 8(a) and 12(b). See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir.2005) (“The [Supreme] Court rejected the view that a plaintiff had to plead a prima facie case of discrimination under the evidentiary standard of McDonnell Douglas Corp. v. Green ... to survive a 12(b)(6) motion to dismiss.” (internal citation omitted)). In Swierkiewicz, for example, the Court held that a plaintiff need not allege specific facts sufficient to establish a prima facie case of discrimination under the McDonnell Douglas method of proof. 534 U.S. at 515, 122 S.Ct. 992. Yet a plaintiff must still allege facts sufficient to state each element of his claim. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir.2003) (“Our circuit has not ... interpreted Swierkiewicz as removing the burden of a plaintiff to allege facts sufficient to state all the elements of her claim.”); see also Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir.2002).

Title YII makes it an “unlawful employment practice” for any' employer “to fail or refuse to hire ... or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... national origin.” 42 U.S.C. § 2000e-2(a)(l). The Fourth Circuit has explained that “[a]bsent direct evidence, the elements of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.2010) (citing White v. BFI Waste Sens., LLC, 375 F.3d 288, 295 (4th Cir. 2004)), aff'd — U.S. —, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012). The elements of a prima facie case, of course, may change depending on a case’s “differing factual situations.” See E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 851 n. 2 (4th Cir.2001) (quoting McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817).

Here, the EEOC’s complaint, while skeletal, provides “a short and plain ’ statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), by stating facts sufficient to make its claim of discrimination plausible. Although PBM challenges the description of “non-Hispanie” as a protected class, courts interpret national origin discrimination broadly; Title VII protects individuals who are discriminated against because they are part (or not part) of a particular ethnic group. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672-73 (9th Cir.1988) (rejecting defendant’s argument that national, origin discrimination was inapplicable to “ethnic groups” and noting that “ ‘national origin’ includes the country of one’s ancestors”); Beltran v. Univ. of Tex. Health Sci. Ctr. at Houston, 837 F.Supp.2d 635, 640 (S.D.Tex.2011) (noting that “several courts have interpreted claims of discrimination based upon the plaintiffs status of being ‘Hispanic’ as being a national origin discrimination claim” and citing cases); see also De Volld v. Bailar, 568 F.2d 1162, 1164-65 (5th Cir.1978) (concluding that an employer could not have discriminated on the basis of national origin when the two people who applied for the job were “of the same ethnic origin”). In fact, the EEOC has concluded that “[n]ational origin discrimination ... includes discrimination against anyone who does not belong to a particular ethnic group, for example, less favorable treatment of anyone who is not Hispanic.” EEOC, EEOC Compliance Manual, National Origin Discrimination, § 13.II.B (2002), available at http://eeoc.gov/policy/ does/national-origin.html (last visited June 18, 2012). Thus, the EEOC has met its burden of identifying a protected class of individuals by alleging that PBM’s work-assignment practices discriminated against its non-Hispanic temporary workers. (Doc. 1 at 4-5 ¶¶ 10,11.)

An applicant for an employment position, of course, cannot demonstrate “satisfactory job performance” since he does not have a job that he could perform satisfactorily. Cf. Coleman, 626 F.3d at 190 (listing satisfactory job performance as an element of a claim of discrimination under Title VII). Instead, a failure to hire or promote claim requires a showing that the individual “applied and was qualified for a job for which the employer was seeking applicants.” See Sears Roebuck, 243 F.3d at 851; Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 319 n. 6 (4th Cir.2005) (explaining that in the failure to promote context an individual must demonstrate that he “applied for the position in question”).

Here, the complaint indicates that non-Hispanic temporary workers applied for positions at PBM by alleging that the company “routinely utilized a temporary workforce for its production needs” during the relevant time period and that to satisfy those needs it “sought and obtained referrals for temporary work from a placement agency,” which referred qualified Hispanic and non-Hispanic employees to PBM. (Doc. 1 at 3-4 ¶ 8.) However, during argument on the motions, the EEOC’s counsel represented that the complaint does not include an allegation that PBM failed to hire temporary workers because of their national origin. Thus, the EEOC’s claim is limited to temporary workers who actually worked for PBM and the allegations that PBM regularly discriminated against its non-Hispanic temporary workers by (1) selecting more Hispanic workers for the core group (id. at 4-5 ¶ 10) and giving Hispanic workers a greater number of work hours than their non-Hispanic counterparts (id. at 5 ¶ 11).

The complaint lacks an express allegation that any of PBM’s non-Hispanic temporary workers actually applied for positions in the core group of temporary workers or that those workers asked for additional work hours. However, the complaint does characterize the alleged victims — a group the EEOC claims is comprised of individuals who already worked in some temporary capacity for PBM — as “applicants” (id. ¶ 12), implying that they did apply for positions as core workers or for additional work hours. Because the court is bound to construe the complaint in a light most favorable to the EEOC at the motion to dismiss stage, Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999), it concludes that the use of the term “applicants” creates a plausible inference that the aggrieved class of workers are those who already had performed work for PBM and who either applied for assignments as core temporary workers or requested greater work hours.

PBM also contends that the complaint lacks any facts supporting the EEOC’s claims that the two sets of employees were “equally qualified.” (Doc. 13 at 12.) PBM is correct to note that the complaint does not identify the detailed qualifications of each temporary worker who performed work for PBM from 2003 to the present but, contrary to PBM’s argument, the court is not left to “blindly accept” the EEOC’s conclusions. {See id.) The complaint alleges that PBM “sought and obtained referrals for temporary work from a placement agency” and that the placement agency referred both Hispanic and non-Hispanic workers to PBM. (Doc. 1 at 3-4 ¶ 8.) The complaint also alleges that PBM’s temporary workers performed “light bindery handwork.” {Id.) Given that the court is bound to draw all reasonable inferences in the non-moving party’s favor, the fact that all temporary workers were referred by the same placement agency to perform unskilled “light bindery handwork” is sufficient to create the inference that PBM’s Hispanic and non-Hispanic temporary workers were comparably qualified.

PBM argues further that the complaint fails to account for the possibility that PBM may have preferred certain workers who happened to be Hispanic for reasons other than their national origin. If PBM has a non-discriminatory reason for favoring its Hispanic workers, it is free to raise the argument at summary judgment or trial, but, given the plausibility of the complaint’s allegations that national origin discrimination was the basis for PBM’s actions, any such possibilities will not require dismissal at this stage of the proceedings. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (explaining that a court should not dismiss an action merely because it may disbelieve a complaint’s factual allegations).

The complaint also meets the requirement that an adverse employment action have occurred. In the failure to hire context, an employer’s decision not to give a job to a qualified applicant is clearly an adverse employment action. Thurston v. Am. Press, LLC, 497 F.Supp.2d 778, 784 (W.D.Va.2007); see also Tabor v. Thomas Built Buses, Inc., No. 1:08CV614, 2010 WL 148431, at *4 (M.D.N.C. Jan. 12, 2010) (explaining that at least in a retaliation suit, “adverse employment actionf ] includes failure to hire a qualified applicant”). An adverse employment action can also include an employer’s decision to demote an employee or relegate him to “reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.” Royster v. Costco Wholesale Corp., 378 F.Supp.2d 595, 605 (M.D.N.C.2005) (citing Boone v. Goldin, 178 F.3d 253, 256 (4th Cir.1999)). Here, both PBM’s alleged failure to assign certain temporary workers to its core group and its decision to relegate other workers to reduced pay or a lower rank, if true, constitute the type of harm to an employee’s employment status sufficient to satisfy the adverse employment action element under Title VII.

The final element — that individuals inside the protected class received treatment different from similarly situated employees outside the protected class — is the most contentious. PBM argues that the complaint fails to allege any specific facts sufficient for the court to assess whether the claim that the company engaged in a pattern or practice of employment discrimination is plausible. (Doc. 13 at 8.) Here, PBM repeats its arguments concerning the complaint’s failure to identify a single person against whom the company discriminated, failure to state facts establishing a plausible basis for believing that the non-Hispanic workers were similarly situated to the favored Hispanic workers, and failure to allege facts showing that discrimination based on national origin was the reason Hispanic temporary workers worked more hours at PBM than the company’s non-Hispanic temporary workers. (Id. at 12-13.) Indeed, when the court pressed PBM at the hearing to articulate what facts it contends were available that the EEOC should have pleaded, its counsel reiterated these very arguments. The EEOC, in contrast, maintains that the complaint “alleges sufficient facts from which this Court can draw the reasonable inference that Defendant acted unlawfully in its placement and assignment practices.” (Doc. 26 at 10.)

It is difficult for the court to imagine a complaint any thinner in factual allegations that should survive a motion to dismiss. However, PBM overstates the EEOC’s burden at the pleading stage of litigation. While factual allegations in the complaint “must be enough to raise a right to relief above the speculative level,” a complaint need not raise “detailed factual allegations.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Thus, contrary to PBM’s assertions, the complaint is not deficient for failing to identify the numerous alleged victims of discrimination or setting out the names of specific employees at PBM who expressed a preference for Hispanic temporary workers. And as noted earlier, the other alleged deficiencies are not fatal to the complaint at this stage. It is sufficient that the facts, taken as true, allege different treatment among similarly situated workers based on national origin. Stripped of its legal conclusions, the complaint alleges that PBM’s placement agency referred “both Hispanic and non-Hispanic temporary workers [but that] non-Hispanic workers were ... rejected by [PBM] while Hispanic temporary workers who were equally or less qualified were allowed to work.” (Doc. 1 at 3-4 ¶ 8.) In addition, the complaint alleges that other non-Hispanic temporary workers “were not assigned to [PBM’s] core group and worked shorter-term assignments” than equally or less qualified Hispanic workers, and the company “assigned] a greater number of work hours to Hispanic temporary workers than to similarly qualified non-Hispanic temporary workers.” (Id. at 4-5 ¶¶ 9, 11.) These factual allegations are sufficient to make it plausible that PBM treated its temporary workers in the protected class — non-Hispanics—differently from those outside the protected class because of their national origin.

Still, PBM argues that U.S. E.E.O.C. v. Global Horizons, Inc., CV. NO. 11-00257 DAE-RLP, 2011 WL 5325747 (D.Haw. Nov. 2, 2011), and E.E.O.C. v. Bass Pro Outdoor World, LLC, No. 4:11-cv-03425, 884 F.Supp.2d 499, 2012 WL 1965685 (S.D.Tex. May 31, 2012), counsel a different result. Superficially, both cases raise similar issues, but PBM’s reliance on them is ultimately misplaced.

In Global Horizons, the EEOC alleged that certain defendants engaged in a pattern or practice of discrimination based on national origin and race by recruiting Asian men to perform work in the United States but then charging them exorbitant recruiting fees on their arrival. 2011 WL 5325747, at *1. The court dismissed the complaint because it lacked “sufficient detail with respect to the employment relationship between each of the [m]oving [defendants and [e]laimant” and failed to sufficiently detail the alleged wrongful conduct. Id. at *8. The shortcomings in the Global Horizons complaint are distinct from those PBM has identified here. The problem in Global Horizons was that the EEOC failed to support its legal conclusions that the moving defendants were “joint employers” with a certain non-moving defendant or that the defendants engaged in wrongful conduct. The complaint in this case, in contrast and as explained above, contains factual assertions to support each element of the claim.

Bass Pro is also distinguishable from this case in important respects. In that case, the court concluded that the EEOC’s complaint failed to state a plausible claim that the defendant had engaged in a nationwide pattern or practice of discrimination in failing to hire Hispanic and African-American individuals to salaried and hourly positions. Bass Pro, 884 F.Supp.2d at 517-18, 2012 WL 1965685, at *14. The court found that statistics related to the company’s hiring practices for managers were irrelevant (for pleading purposes) to the claims that the company failed to hire people to a number of non-managerial positions within the company and found that particular instances of offensive conduct directed at Hispanics and African-Americans in certain stores failed to plausibly allege that the company had engaged in a “company-wide pattern or practice” of discrimination. Id. Here, in contrast, the EEOC has alleged facts pertaining to the particular individuals and employment positions subject to discrimination — non-Hispanic temporary workers seeking additional hours or to become members of the company’s core group of temporary workers — and has made clear that the discriminatory acts in question are limited to PBM’s facilities in Durham, which apparently used the same staffing agency and practices for filling their needs for temporary employees.

In sum, the EEOC has sufficiently pleaded facts to state a claim for relief that is plausible on its face. Cf. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Accordingly, PBM’s motion to dismiss on this basis will be denied.

2. Scope of the EEOC Charge

PBM also moves to dismiss the EEOC’s complaint under Rule 12(b)(1) based on a lack of subject matter jurisdiction. According to PBM, this court lacks jurisdiction to consider any allegations in the complaint that were not also raised in the underlying administrative charge that led to the EEOC’s investigation. Specifically, PBM identifies three potentially limiting discrepancies between the EEOC’s charge and the complaint. First, PBM contends that the complaint attempts to expand the class of those who were discriminated against by changing its definition of the victims of PBM’s employment practices from “American (non-Hispanic)” to simply “non-Hispanic.” (Doc. 13 at 15.) Second, it argues that the complaint impermissibly exceeds the scope of the charge by raising an allegation that PBM provided fewer hours to its non-Hispanic temporary workers — an allegation not identified in the charge. (Id. at 16.) Finally, it contends that by seeking relief for activities since January 1, 2003, rather than January 1, 2004, the date alleged in the charge, the complaint impermissibly expands the relevant dates of the potentially discriminatory activity. (Id. at 16-17.)

A motion to dismiss under Rule 12(b)(1) challenges a federal court’s subject matter jurisdiction to hear the dispute raised in the complaint. Aguilar v. LR Coin Laudromat [sic], Inc., Civ. A. No. RDB-11-02352, 2012 WL 1569552, at *2 (D.Md. May 2, 2012). When a party moves under Rule 12(b)(1), he is “afforded the same procedural protection as he would receive under a Rule- 12(b)(6) consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). Thus, the facts alleged in the complaint are taken as true, and the operative question is whether the complaint alleges sufficient facts to invoke the court’s subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Ultimately, the plaintiff bears the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.1999).

A plaintiffs failure to exhaust his administrative remedies for a Title VII claim deprives the federal courts of subject matter jurisdiction. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.2009). One important step in fulfilling the administrative exhaustion requirements of Title VII is that the complaining party must file a charge with the EEOC. Id. The purpose of the administrative exhaustion requirement is to provide the employer with notice of the charge, permit the EEOC to investigate the charge, and give the parties an opportunity to resolve their dispute without resorting to litigation. Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir.2005). As with private litigants seeking relief under Title VII, when the EEOC files an administrative charge, it, too, must satisfy the statute’s exhaustion requirements. See E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir.2002) (per curiam) (explaining that “the EEOC itself’ must “exhaust certain administrative remedies before filing a suit for employment discrimination”).

Merely filing a charge with the EEOC, however, is insufficient to exhaust a party’s administrative remedies. “A charge is sufficient only if it is sufficiently precise to identify the parties, and to describe generally the actions or practices complained of.” Jones, 551 F.3d at 300 (citation and internal quotation marks omitted). As such, the scope of the factual allegations in the administrative charge limits matters that may be complained of in resulting litigation. Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir.2005). “Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequént Title VII lawsuit.” Id. at 506. Thus, the scope of litigation is confined by the “scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination.” Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir.1981).

Applying the above standards to the facts in this case, it is evident that the EEOC’s charge adequately exhausted Title VII’s administrative remedies for the claims raised in the current complaint. While PBM is correct to note that the complaint’s reference to “non-Hispanic” is a potentially broader category than the charge’s “American (non-Hispanic)” classification, both the charge and the complaint make clear that PBM is alleged to have engaged in national origin discrimination by favoring Hispanic workers. (Cf. Doc. 1 at 3-4 ¶ 8 (claiming that PBM favored Hispanic workers to the exclusion of non-Hispanic -workers); Doc. 28-2 (Charge of Discrimination) at 3 (charging that PBM solicited the placement of Hispanic workers to the exclusion of persons of other races and national origins).) Dropping “American” from the category of individuals subject to discrimination, therefore, did not change the type of discrimination alleged or materially alter the class of potential victims. Cf. Chacko, 429 F.3d at 509 (explaining that claims are generally barred where (1) a charge indicates one basis of discrimination (such as race) and the complaint indicates another basis (such as sex) or (2) a charge alleges one type of discrimination (such as failure to promote) and the complaint alleges another type (such as discrimination in pay)). In addition, the charge concludes by specifically identifying the “aggrieved class” as “all non-Hispanic persons” potentially affected by PBM’s alleged discrimination. (Doc. 28-2 at 3.) This language is sufficient to put PBM on notice that the EEOC’s charge was not limited to non-Hispanics of American origin.

Equally unavailing is PBM’s attempt to preclude litigation of the EEOC’s claim that the company provided fewer work hours to its non-Hispanic employees. An administrative charge is simply a “jurisdictional springboard” for an investigation into an employer’s potentially discriminatory practices, and nothing in a charge “strictly cabins the investigation that results therefrom.” E.E.O.C. v. Gen. Elec. Co., 532 F.2d 359, 364 (4th Cir.1976). So long as claims raised in a complaint are “reasonably related” to the allegations in the charge, the charge will not limit the ensuing litigation. Chacko, 429 F.3d at 506. Thus, “where judicial claims are rooted in the same basis of discrimination specified in the charge (i.e., race, sex, national origin), the court may consider them, notwithstanding thé fact that additional aspects of that basis of discrimination are alleged in the complaint.” Jones v. Metro. Denver Sewage Disposal Dist. No. 1, 537 F.Supp. 966, 970 (D.Colo.1982); see also E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994) (finding that allegations that a company failed to rehire women was “reasonably related” to a charge that the company disproportionately laid off female employees). Here, the charge made clear that the EEOC believed PBM was discriminating on the basis of national origin. The EEOC’s claims that PBM provided fewer hours to its non-Hispanic employees and denied them positions with the core group of temporary workers are premised on the same basis of discrimination and, given the allegation that PBM favored Hispanic employees despite significant turnover in its temporary workforce, are reasonably related to the allegations in the administrative charge. Cf. Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 594 (4th Cir.2012) (explaining that the Fourth Circuit has found administrative remedies to be exhausted “where both the EEOC charge and the complaint included claims of retaliation by the same actor, but involved different retaliatory conduct” (citing Smith v. First Union Nat’l Bank, 202 F.3d 234, 248 (4th Cir.2000))).

Finally, PBM’s effort to limit the timeframe of this suit to January 1, 2004, rather than January 1, 2003, is also without merit. Administrative charges filed with the EEOC must contain, among other things, a “statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3). Yet courts have recognized that “at the time a charge is filed, the EEOC may be uncertain as to the temporal scope of the allegedly unlawful practices.” E.E.O.C. v. K-Mart Corp., 694 F.2d 1055, 1064 (6th Cir.1982). This uncertainty is particularly likely where a pattern or practice of discrimination is alleged, and the Supreme Court has held that in such cases the EEOC should identify, “[ijnsofar as [it] is able,” “the periods of time in which [it] suspects the discrimination to have been practiced.” E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 72-73, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984). It follows that the EEOC should not be bound by a rigid rule in identifying the timeframe of an employer’s alleged discrimination. See Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir.1998) (requiring that the date alleged in the charge only be “an approximate time period”). In this case, the charge alleges a “pattern or practice” of discrimination (which necessarily occurs over a period of time) (Doc. 28-2 at 3), indicates the conduct was ongoing at the time of the charge’s filing (id. at 1), and notes that the discrimination began “at least” as soon as January 1, 2004 (id. at 3). Taken together, these allegations are reasonably related to the EEOC’s decision to complain about PBM’s practices beginning on January 1, 2003.

Thus, while minor differences exist between the EEOC’s charge and the resulting complaint, PBM has identified none that rises to the level of depriving this court of subject matter jurisdiction over the complaint. Consequently, PBM’s motion to dismiss for lack of subject matter jurisdiction will be denied.

3. Title VII’s 180-Day Claim-Filing Period

PBM also moves to dismiss any claims for individual relief arising outside of Title VIPs 180-day window for filing charges of discrimination. According to PBM, “[a] plaintiff who never filed a charge or who did not file a charge within 180 days of the alleged discrimination is barred from pursuing a lawsuit under Title VII.” (Doc. 13 at 17.) Citing Calvert Group, 551 F.3d 297, PBM contends that the statutory bar may be jurisdictional, but that, in any event, the EEOC may not revive claims that were stale at the time the charge is filed, even in pattern or practice litigation. (Doc. 13 at 17-18.) The EEOC, in contrast, contends that Title VII’s 180-day limitations period is inapplicable to pattern or practice claims and that, if there is a statutory limit on some of its claims, the “continuing violation doctrine” revives them. (Doc. 26 at 18-20.)

In non-deferral states like North Carolina, Lane v. Lucent Techs., Inc., 388 F.Supp.2d 590, 598 (M.D.N.C.2005) (characterizing North Carolina as a non-deferral state), a complaining party must file a charge with the EEOC within 180 days after the alleged unlawful employment practice occurred, 42 U.S.C. § 2000e-5(e)(1). While a plaintiffs complete failure to file a charge deprives the court of subject matter jurisdiction, Jones, 551 F.3d at 300, the untimely filing of an administrative charge is not a jurisdictional bar to suit, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Instead, untimely charges “should be addressed within the context of a 12(b)(6) motion” — at least where the defendant so moves. Edwards v. Murphy-Brown, L.L.C., 760 F.Supp.2d 607, 614 (E.D.Va.2011). Here, of course, the EEOC filed a charge on October 17, 2005, and exhausted its administrative requirements. Accordingly, to the extent that PBM contends that this court lacks subject matter jurisdiction, it is mistaken. Jones, 551 F.3d at 300.

Yet PBM’s mistake does not entirely negate its argument for dismissal. Some courts have held that a party may not seek relief for a pattern or practice of discrimination where the actions giving rise to the complaint arose outside the 180-day statutory period. See, e.g., E.E.O.C. v. Burlington Med. Supplies, Inc., 536 F.Supp.2d 647, 658-59 (E.D.Va.2008). These courts note that section 707 provides that all pattern or practice cases “shall be conducted in accordance with the procedures set forth in [section 706].” 42 U.S.C. § 2000e-6(e). This language indicates that even pattern or practice litigation should be “ ‘conducted in accordance with the’ 180-day limitations period set out in [section 706(e)].” E.E.O.C. v. Optical Cable Corp., 169 F.Supp.2d 539, 546 (W.D.Va.2001). As a result, section 706’s limitations period “will primarily prevent the EEOC from recovering monetary damages on behalf of individuals with stale claims.” E.E.O.C. v. Kaplan Higher Educ. Corp., 790 F.Supp.2d 619, 624 (N.D.Ohio 2011). Although individuals discriminated against outside of the 180-day limitations period may nevertheless be used as evidence of a pattern or practice of discrimination* such individuals may not seek individualized monetary relief for their claims. Burlington Med., 536 F.Supp.2d at 659-60.

While there is authority to the contrary, see, e.g., E.E.O.C. v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1084 (C.D.Ill.1998) (“[A] pattern or practice case is not subject to a limitations period, [and] all individual claims that seek relief based on this pattern or practice will be allowed into the individual relief phase.”), this court is persuaded that the better view is that the EEOC may not seek monetary relief for stale claims — those arising prior to 180 days before the filing of the charge. Therefore, any of the EEOC’s claims for monetary relief resting on allegations of discrimination that occurred more than 180 days prior to October 17, 2005 — the date of the charge — are subject to dismissal.

Anticipating this ruling, the EEOC nevertheless contends that the “continuing violation doctrine” may revive its potentially stale claims. (Doc. 26 at 19-20.) In the Fourth Circuit, the continuing violation doctrine “allows for consideration of incidents that occurred outside the time bar when those incidents are part of a single, ongoing pattern of discrimination.” Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir.2007). The doctrine is based on the idea that some discriminatory employment practices — namely hostile environment claims — are “composed of a series of separate acts that collectively constitute one unlawful employment practice.” Nat’l R.B. Passenger Corp. v. Morgan, 536 U.S. 101, 116-17, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). While the Supreme Court has refrained from ruling on whether the continuing violation doctrine applies in pattern or practice cases, id. at 115 n. 9, 122 S.Ct. 2061, many courts have held that the doctrine does not apply to “discrete acts of discrimination merely because the plaintiff asserts that such discrete acts occurred as part of a policy of discrimination,” Williams v. Giant Food, Inc., 370 F.3d 423, 429 (4th Cir.2004) (declining to apply the continuing violation doctrine where plaintiff sought to avoid section 1981’s three-year statute of limitations applicable to her failure-to-promote claims (citing Davidson v. Am. Online, Inc., 337 F.3d 1179, 1185-86 (10th Cir.2003), and Cherosky v. Henderson, 330 F.3d 1243, 1246-48 (9th Cir.2003))).

E.E.O.C. v. Freeman, No. RWT 09cv2573, 2010 WL 1728847 (D.Md. Apr. 27, 2010), is illustrative. There, the court concluded that the continuing violation doctrine was inapplicable to claims of a pattern or practice of refusing to hire job applicants. Id. at *6. First, the court noted, the continuing violation doctrine only permits the revival of stale claims — not stale parties. Id. Where the EEOC’ seeks to enlarge the number of individuals entitied to recover rather than the claims a single individual may bring, the doctrine has no applicability. Id. Second, the court held that “[a] pattern or practice of refusing to hire job applicants does not constitute a continuing violation.” Id. “Linking together a series of decisions not to hire under the label of pattern or practice,” the court explained, “does not change the fact that each decision constituting the pattern or practice is discrete.” Id.

Here, each decision to limit the working hours or not hire non-Hispanic workers was a discrete decision. Thus, as in Freeman, the continuing violation doctrine affords the EEOC no help in reviving its stale claims. Accord Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir.2008) (holding that some of the defendant’s allegedly discriminatory hiring decisions and light work assignments “constituted discrete acts” and were time barred despite plaintiffs claims of a pattern or practice of discrimination); Kaplan Higher Educ., 790 F.Supp.2d at 625 (“Even in a pattern-or-practice case such as this, the discrete decisions to refuse to hire and to terminate employment cannot be linked together to create a continuing violation.”).

The EEOC contends that at least some cases reach the opposite result. Yet the Commission’s cases are distinguishable. In Patterson v. American Tobacco Co., 634 F.2d 744 (4th Cir.1980) (en banc), vacated, 456 U.S. 63,102 S.Ct. 1534, 71 L.Ed.2d 748 (1982), for example, the Fourth Circuit concluded that a company’s discriminatory promotional policies constituted a “continuing pattern or practice of discrimination” that resulted in “continuing violations” of Title VII. Id. at 751. The holding of American Tobacco, however, was simply that a failure to have challenged a discriminatory promotional policy (locking women and black employees into unfavorable job positions) at its inception did not bar later claims for harm occurring within the timely period based on the continued effect of the policy. Id. Taylor v. Home Ins. Co., 777 F.2d 849 (4th Cir.1985), is equally unavailing. There, the court permitted an individual to revive a stale claim for an age-based demotion under the continuing violation doctrine where he suffered a second age-based demotion within the limitations period and he filed his charge within the statutory period of the last occurrence. Id. at 856-57. While the court permitted the plaintiff to seek relief for both demotions, it also noted that the unlawful employment practice continued into the limitations period and that the plaintiffs two claims were similar. Id. at 857. Here, in contrast, the EEOC is seeking to revive stale claims involving victims of discrimination who may not have suffered injury inside the statutory period.

In sum, the EEOC may not seek relief on behalf of individuals who allegedly suffered discrimination more than 180 days prior to the filing of the EEOC’s charge, and the continuing violation doctrine, which revives stale claims, not stale parties, is inapplicable to the facts of this case, at least for individuals who suffered discrimination entirely outside of the statutory period, unless the worker also experienced discrimination within the statutory period as well. Therefore, any claims for monetary relief for individuals suffering discrimination only during the period prior to April 19, 2005 — 180 days before the filing of the charge' — are presumptively barred and subject to dismissal. While the EEOC may use stale claims as evidence of a pattern or practice of discrimination at PBM, the Commission may not seek monetary relief for stale claims. To the extent PBM’s motion seeks to dismiss these stale claims for monetary relief, the motion will be granted; in all other respects it will be denied.

B. Motion for Summary Judgment

In addition to their argument for dismissal pursuant to Rule 12, PBM also contends that it is entitled to summary judgment because (1) the EEOC failed to fulfill its statutory duty to conciliate certain claims against it and (2) the equitable doctrine of laches bars the EEOC’s suit.

Federal Rule of Civil Procedure 56(a) permits a district court to grant summary judgment “ ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” T-Mobile Ne. LLC v. City Council of City of Newport News, Va., 674 F.3d 380, 385 (4th Cir.2012) (quoting Fed.R.Civ.P. 56(a)). In evaluating motions for summary judgment, the court considers “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” Boitnott v. Corning Inc., 669 F.3d 172, 175 (4th Cir.2012) (citation and internal quotation marks omitted), but it “ ‘view[s] all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party,’ ” Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir.2009) (alteration in original) (quoting Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 603 (4th Cir.2002)). The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to a material fact and their entitlement to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

As to PBM’s motion for summary judgment, the undisputed facts show the following:

As noted, the EEOC filed its charge against PBM on October 17, 2005, alleging that the company (1) failed to recruit, place, or hire individuals for temporary work assignments because of their races or national origins, (2) solicited the placement of Hispanic workers to the exclusion of individuals of other races or national origins, and (3) refused temporary work assignments to individuals because of their races or national origins. (Doc. 28-2 at 3.) On November 10, 2005, the EEOC sent PBM notice of the charge and requested that the company respond with a position statement by December 1, 2005. (Doc. 28-3 (Whitlow Declaration) at 2 ¶ 5.) Shortly thereafter, however, the EEOC transferred the case to its Raleigh Area Office, and, on December 8, 2005, investigators there submitted their own requests for information (“RFI”) and for a position statement. (Id. at 3 ¶ 7.)

The EEOC’s December 2005 RFI asked PBM, among other things, to “[ijdentify all individuals responsible for” communicating with the company’s staffing agency for temporary workers, “[d]escribe in detail the method used ... to request workers” from the staffing agency, and “[describe in detail the method used ... to receive and process [temporary] workers” provided by the staffing agency, including information about “how it is determined how long each temporary employee ... [would] work[ ] for PBM.” (Doc. 28-7 at 2-3.) In addition, the RFI asked for identifying information concerning “each person who is responsible for requesting temporary job assignments” from the company’s staffing agency. (Id. at 3.) The EEOC indicated that PBM’s response should be filed by January 6, 2006. (Id. at 1.)

PBM requested two one-week delays, but on January 20, 2006, the company categorically denied “the charge that it requested or preferred Hispanic temporary workers over temporary workers who were non-Hispanic.” (Doc. 28-8 at 2.) It explained that each of its shifts had a “core group of ‘regular’ temporary workers” who were the “best” temporary workers, but that the group’s composition was “fluid,” and that the company was “often required” to request additional temporary workers as its employment needs fluctuated. (Id. at 3-4.) PBM also responded to the EEOC’s request for information, explaining its relationship with its staffing agency and identifying sixteen employees who communicated with the staffing agency to fill PBM’s needs for temporary workers. (Doc. 28-9 at 2, 6.) The company augmented its response in March 2006 by further explaining its project tracking system and how the company determined the number of temporary workers that it needed for particular jobs. (Doc. 28-3 at 3-4 ¶ 8.)

In March 2006, the EEOC interviewed two of the sixteen employees PBM had identified as being responsible for communicating with its staffing agency: Jerald Long, a bindery manager; and Timothy James, a finishing manager. (Id.) Dining the interviews, the EEOC’s investigators also toured PBM’s facility for the first time. (Id.) Later that spring, on April 27, the EEOC interviewed another PBM employee, David Blad. (Id. ¶ 9.)

Once this information was collected, the EEOC spent nearly a year, from April 2006 to March 2007, “analyzing] the defenses raised by [PBM] in its position statement and conducting] labor availability analyses regarding [PBM’s] temporary workforce.” (Id. ¶ 10.) On November 14, 2006, the EEOC also received data from PBM’s staffing agency that identified all of the company’s temporary workers during the period from January 1, 2004, through January 31, 2005. (Id.)

Interaction with PBM resumed in April 2007 when the EEOC requested additional information about how PBM determined the race or ethnicity of its temporary workforce and documentation on all temporary workers sent to PBM by its staffing agency. (Id. at 4-5 ¶¶ 11, 14.) PBM, however, informed the EEOC that it and its employment agency did not have “a record of temporary workers who were summoned to report to [PBM] or who were sent to [PBM] if those temporary workers did not actually clock any time.” (Doc. 28-15 at 1.) All of PBM’s data, the company explained, involved individuals “who actually worked at PBM.” (Id.) PBM provided information on those workers on May 15, 2007, in a document which, when printed, totaled 9,733 pages. (Doc. 28-3 at 5 ¶ 15; Doc. 28-16.)

PBM’s release of information sparked a flurry of discussions between the EEOC and PBM as the EEOC’s investigators attempted to understand the various categories of employees identified in the database. (See Doc. 28-3 at 6 ¶¶ 16-17.) On May 25, 2007, the EEOC also received additional information relating to temporary workers who worked at PBM in 2003 and from February 2005 to April 2007. (Id.) Apparently, though, by late May 2007 the meaning of PBM’s database was clear, and the EEOC used the next three months (until August 2007) to develop a database of all 3,929 temporary workers who worked at PBM from January 1, 2003 through August 22, 2007. (Id.)

Once its database was compiled on August 22, 2007, the EEOC requested social security numbers on each of the temporary employees identified in the database — information that PBM provided by August 30, 2007. (Doc. 28-21 at 1.) The EEOC used that information to request national origin identifying information for PBM’s temporary workers from the North Carolina Department of Motor Vehicles, and from October 4, 2007 through January 15, 2008, the EEOC “conducted a statistical analysis” of the hours worked by PBM’s temporary workers based on their national origin. (Doc. 28-3 at 7 ¶ 19.)

On February 28, 2008 — now some two and a half years after the EEOC filed its charge and over two years since PBM had identified the workers in charge of supervising its temporary workers — the EEOC attempted to schedule interviews with ten PBM employees (six of whom were among the sixteen employees responsible for communicating with PBM’s temporary staffing agency). (Doc. 28-22 at 1.) The EEOC ultimately interviewed six of the ten individuals (just two of whom were responsible for communicating with PBM’s staffing agency). (Doc. 28-3 at 7-8 ¶ 20.)

As the EEOC was attempting to interview these individuals, Consolidated Graphics, Inc., a publically traded company, purchased PBM through a subsidiary corporation. (Doc. 18 (Cohen Declaration) at 2 ¶ 5.) The transaction, which closed in March 2008, sparked an exodus of PBM’s executives. Indeed, in a three-month period beginning on March 28, 2008, PBM’s chairman of the board, chief financial officer, chief administrative officer, and president all left the company. (Doc. 19 (Mussler Declaration) at 2.)

Despite the changes at PBM, the EEOC’s investigation pressed on. In January and May 2008, the North Carolina Department of Motor Vehicles provided the EEOC with the national origin identifying information that the Commission had requested. (Doc. 28-3 at 8 ¶ 21.) Starting in May, the EEOC used that data to conduct another statistical analysis of PBM’s temporary workforce, a task it completed by September 2008. (Id.)

On November 10, 2008, the EEOC sent PBM a fifth request for information, asking, this time, for the identities of those individuals in the company’s “core group” of temporary workers. (Id. ¶ 22.) The RFI also sought information about the hours worked by each of PBM’s temporary workers for 2003, 2006, and 2007. (Id.) (The EEOC further represents that it had already received this information from PBM’s temporary staffing agency but that it “needed to also obtain it from [PBM] in order to confirm and verify its authenticity and reliability.” (Id.))

PBM provided the requested information on December 2, 2008, in the form of five electronic databases. (Id. ¶ 23.) The EEOC then spent over eight months, from February 6, 2009, through October 19, 2009, conducting further statistical analysis “utilizing the data” from December 2, 2008. (Id. at 9 ¶ 24.)

By February 5, 2010, the EEOC had concluded its investigation, and the Commission conducted pre-determination interviews with PBM to review its conclusions. (Id. ¶ 25-26.) On February 23, 2010, the EEOC formally issued its Letter of Determination. (Id. at 10 ¶ 28.) The letter indicated the EEOC had found evidence that PBM had discriminated against individuals based on their race or national origin in three ways: first, by failing to place or assign non-Hispanic temporary workers to the company’s “core group” of temporary workers; second, by providing fewer work hours to its non-Hispanic workers; and third, by failing to recruit or hire non-Hispanic job applicants. (Doe. 28-26 at 3.) The letter also invited PBM to a conciliation conference. (Id.)

On March 12, 2010, Yamira Moreno-Cruz, an EEOC investigator, outlined in a letter to PBM the remedies the EEOC would seek during conciliation if PBM agreed to a meeting. (Doc. 28-27 at 1.) The letter explained that the Commission would seek, among other things, “damages,” training for PBM’s supervisors and managers, and compliance with Title VII. (Id.) Ms. Moreno-Cruz’s letter, however, made no mention of a specific monetary sum the EEOC expected to recover or the size of the class for which it sought to obtain relief. (See id) Nor did her letter — or any subsequent communication from the EEOC, for that matter — explain the factual basis for the EEOC’s conclusions. (See id.)

PBM agreed to meet for conciliation, and the parties scheduled their conciliation conference for April 20, 2010. (Doc. 17 (Zaloom Declaration) at 7 ¶ 25; Doc. 28-3 at 10-11 ¶29.) Prior to the meeting, PBM’s attorney asked the EEOC to provide specific information about the monetary damages the Commission would be seeking. (Doc. 28-3 at 11 ¶ 29.) In response the EEOC explained that it was “still collecting information related to ... damages,” “was in the process of interviewing as many class members as could be located regarding their damages,” and would need to postpone the conciliation conference until it had completed that process. (Id) Although the EEOC initially stated that conciliation could take place during the “middle of May,” the EEOC did not attempt to reschedule the conciliation conference until late May or early June (Doc. 17 at 7 ¶ 26; Doc. 28-3 at 11 ¶ 30), but even then the EEOC was “still in the process of giving [PBM] a ‘ball park’ figure [for damages that it would seek at the] conciliation conference” (Doc. 28-28 at 1).

When the parties eventually did meet for conciliation on July 14, 2010, the EEOC reviewed the allegations contained in its Letter of Determination, presented a draft conciliation agreement, and explained that the Commission had identified a class of 104 alleged victims of discrimination. (Doc. 17 at 7 ¶ 27; Doc 28-3 at 11-12 ¶ 31.) Those victims, the EEOC explained, “should have been placed in the core group” of temporary workers. (Doc. 28-3 at 12 ¶ 31.) According to the EEOC, it also “discussed” that it believed PBM had given a “disproportionate number of the total hours available ... to Hispanic temporary workers,” although, to the extent a second group of individuals were victims of that form of discrimination, the EEOC did not identify them and made no separate monetary demands related to them (id. ¶ 30). As the EEOC explained in a letter over one year later, at the time of conciliation the Commission’s investigators believed that there were two classes of victims — one group of workers who were not assigned to PBM’s core group of temporary workers and a second group who received fewer work hours because of their national origin — but that the EEOC “focused” on the damages sustained by the individuals not assigned to the company’s core group of workers. (Doc. 17-9 at 1.) According to the EEOC, therefore, “PBM was provided the opportunity to resolve the entire charge (both claims) for less money than if both claims had been included in conciliation.” (Id.)

As it turned out, regardless of the damages on which the EEOC was focused, PBM was unwilling to pay “anything near” the EEOC’s conciliation demands, and the conference failed. (Doc. 17 at 7 ¶27.) Indeed, just one day after the conference, the EEOC declared that further conciliation would be futile and that the case would proceed to litigation. (Doc. 28-31 at 1.)

Apparently unwilling to let the possibility of an amicable resolution slip away so quickly, PBM’s attorney contacted the Commission in August 2010 and requested that the parties engage in a mediation session. (Doc. 17 at 8 ¶ 29.) As noted previously, after several weeks of discussions, the parties eventually agreed to mediate their dispute with no established monetary floor and set December 9, 2010, as the date for their meeting. (Id. ¶ 30-32.) PBM also informed the EEOC, as it had prior to conciliation, that in order for it to consider settling for an additional monetary amount above what it had offered at conciliation, the Commission would need to provide “detailed information related to the EEOC’s damage calculations.” (Doc. 28-32 (Mahood Declaration) at 2 ¶ 7.) Yet one week before the scheduled mediation, the EEOC’s attorney informed PBM that it “was in the process of finalizing the class and damages” and, thus, would be unable to mediate on December 9. (Id.)

The pa