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Anyone who has practiced before the Equal Employment Opportunity Commission knows that settlement, or in the EEOC’s terminology, conciliation, hangs over the entire proceeding. From the first phone call from the investigator to defense counsel, through the (increasingly rare) fact-finding conference, the investigator is likely to include the question “is there any chance of resolving this?” into every conversation. So where does the commission’s investigation end and its settlement discussions begin? This question takes on added importance in light of a recent decision by the U.S. District Court for the Eastern District of Wisconsin that an attorney’s letter to the commission on behalf of his client is admissible as evidence at trial to support the plaintiff’s claim of pretext. ‘BROOKS V. GRANDMA’S HOUSE DAY CARE’ In Brooks v. Grandma’s House Day Care Centers, Inc., No. 01-C-0375 (E.D. Wis. Oct. 15, 2002), Darice Brooks claimed that she was discharged based upon her race in violation of Title VII. An important part of the case involved the reason that the center asked Brooks to transfer from one location to another. Brooks’ supervisor testified at trial to three reasons for the request. Brooks’ attorney sought to impeach the supervisor’s credibility by contrasting her stated reasons with those offered by the center’s counsel to the EEOC in his Position Statement. While the Statement offered a detailed explanation of the transfer request, it made no mention of the reasons offered at trial by Brooks’ supervisor. Counsel for the centers, who had prepared the Statement on behalf of his client, argued that his letter was inadmissible based upon Title VII’s language that “nothing said or done during and as a part of … informal [conciliation] endeavors may be made public by the Commission … or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” The statute, however, limits its conciliation “endeavors” to “after … there is reasonable cause to believe that the charge is true.” The court found that the Position Statement was admissible because it was “not written in the course of EEOC conciliation efforts, but also because it contained no statements relating to compromise, settlement or negotiation.” INCONSISTENCY IS EVIDENCE OF PRETEXT Inconsistent reasons for an employment decision can, of course, be evidence of pretext. A number of courts have specifically held that statements before the EEOC can evidence pretext when they are inconsistent with those offered in other settings. But these inconsistent statements have been from the client, rather than from the attorney. This is not to say that the defense does not try the same tactic. Defense attorneys will often try to impeach a plaintiff’s credibility by highlighting inconsistencies between the plaintiff’s statements to the EEOC, which are often handwritten in response to the commission’s questionnaire, and his or her testimony at a later date. This is most effective when the plaintiff has answered the questionnaire without an attorney and may not have had a chance to “refine” his responses. At least one excellent plaintiff’s attorney whom I know refuses to let his client answer EEOC questionnaires in writing in order to avoid just this type of cross examination. EEOC DISCUSSION OF SETTLEMENT IS ONGOING The Brooks court’s attempt to draw a bright line between the Position Statement and conciliation/settlement discussions ignores the reality of how the EEOC operates, because the commission does all that it can to blur that same line. Even with the advent of the commission’s formal mediation process, it is the rare EEOC investigator who is not probing for settlement throughout the investigative process. And, even when an employer submits a blistering Position Statement, it may well be to enhance settlement in a difficult case, rather than to achieve all out victory. This realistic approach was recognized in EEOC v. Gear Petroleum, 948 F.2d 1542, 1545 (10th Cir. 1991). The district court in Gear was faced with a question similar to that addressed in Brooks. The Gear court cited with approval the district court’s finding that “if it is persuasion or conferring or conciliation … [counsel's Position Statement] was undertaken in the interest of attempting to resolve the matter in some way.” As such, the Gear trial court excluded the attorney’s letter to the Commission from evidence at trial and the appellate court affirmed the decision. The Brooks decision elevates form over substance. In order to ensure that a Position Statement written by the employer’s counsel could not be introduced into evidence, the Statement could include “dual purpose” language. That is, in addition to the usual language introducing the Statement, counsel may want to add that the Statement “should also be considered to be the employer’s discussion of the merits of the case for the purpose of any future conciliation or conference.” This would likely circumvent the Brooks court’s finding that counsel’s letter “contained no statements relating to compromise, settlement or negotiations.” A secondary, although potentially disruptive, issue raised in Brooks was the possible testimony by counsel as to the basis for the facts contained in the Statement. Although the court noted that counsel did not testify, the decision raised the possibility that counsel would be disqualified and could be pitted against his client, should the employer disavow, or even distance itself from, the Statement submitted. In the end, the case highlights the need for counsel to prepare Position Statements with both extreme care and, ultimately, litigation in mind. If the investigation for the Statement is thorough and then reviewed with the client before submission, the types of discrepancy raised in Brooks can be avoided. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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