United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION A ORDER
LAKE SENIOR UNITED STATES DISTRICT JUDGE.
Equal Employment Opportunity Commission ("EEOC" or
"Plaintiff") filed this action against Wal-Mart
Stores Texas, LLC ("Defendant") alleging disability
discrimination in violation of the Americans with
Disabilities Act of 1990 ("ADA") . Pending before
the court is Plaintiff EEOC's Opposed Motion to Quash and
for Protective Order from Defendant's Written Discovery
Concerning Conciliation ("Plaintiff's Motion to
Quash") (Docket Entry No. 25). For the reasons explained
below, Plaintiff's Motion to Quash will be granted in
part and denied in part, and the parties will be permitted to
supplement their briefing on Defendant's Opposed Motion
to Stay and Compel Conciliation ("Defendant's Motion
to Stay") (Docket Entry No. 29) after additional
Factual and Procedural Background
brings this action on behalf of Jesse Landry, a congenital
amputee who lacks a right hand and forearm. Defendant
interviewed Landry for a stocker position on July 14,
2018.Plaintiff alleges that the manager
conducting the interview informed Landry that she could not
do the job due to her disability and ended the
interview. Landry filed a charge of discrimination
with Plaintiff in October of 2015. Plaintiff investigated the
charge and on May 14, 2018, sent Defendant a letter that
concluded there was reasonable cause to believe Defendant had
violated the law. Plaintiff alleges it attempted to settle
the case through conciliation, but Defendant alleges that the
"EEOC wholly failed to properly engage in the
conciliation process in good faith . . . .
"In September of 2018 Plaintiff determined
that conciliation had failed, and Plaintiff filed this action
on September 24, 2018.
served discovery requests on Plaintiff that included requests
for admission and interrogatories related to the parties'
pre-suit conciliation discussions. Defendant requested that
Plaintiff admit facts related to whether Defendant had been
informed of Landry's specific disability, the
parties' settlement negotiations, and Plaintiff's
communications with Landry during those
negotiations. Plaintiff filed its Motion asking the
court to quash discovery and to enter a protective order
against the discovery requests on October 25,
2019. Defendant responded on November 14,
2019,  and Plaintiff replied on November 20,
2019.Defendant has also submitted its motion
requesting the court stay the action and compel
Law and Analysis
Rule of Civil Procedure 26(c) permits parties from whom
discovery is sought to move for a protective order.
Fed.R.Civ.P. 26(c) (1). If there is good cause for
protection, the court may prohibit the requested discovery or
limit inquiry into certain matters. Fed.R.Civ.P. 26(c) (A),
(D). Plaintiff seeks protection against Defendant's
requested discovery as to actions taken and discussions held
during conciliation. Plaintiff argues that the Supreme
Court's decision in Mach Mining, LLC v.
E.E.O.C., 135 S.Ct. 1645 (2015), sharply limits the
scope of review and therefore discovery of the conciliation
process, and that Defendant's requested discovery exceeds
that limited scope.Defendant responds that Mach
Mining allows narrowly tailored discovery of
conciliation and that its requests fall within that
VII of the Civil Rights Act, which the ADA incorporates by
reference, allows the EEOC to sue employers on behalf of
individuals who have been discriminated against. 29 U.S.C.
§ 794a; 42 U.S.C. § 2000e-5 (b). As a mandatory
precondition to the lawsuit, however, the EEOC must first
attempt to resolve the issue through "informal methods
of conference, conciliation, and persuasion." 42 U.S.C.
§ 2000e-5(b); Mach Mining, 135 S.Ct. at 1651.
In Mach Mining the Court held that fulfillment of
this precondition is subject to limited judicial review. 135
S.Ct. at 1652-53. To fulfill the mandatory precondition for
conciliation under § 2000e-5(b) "the EEOC must
inform the employer about the specific allegation,"
describing "both what the employer has done and which
employees (or what class of employees) have suffered as a
result." Mach Mining, 135 S.Ct. at 1655-56. The
EEOC must then "try to engage the employer in some form
of discussion . . so as to give the employer an opportunity
to remedy the allegedly discriminatory practice."
Id. at 1656. Judicial review of conciliation is
limited to whether these requirements were met and excludes
review of statements made or positions taken during the
attempted discussions. Id. This limitation is
necessary to give effect to the statute's requirement
that the informal conciliation process not be disclosed to
the public or used as evidence in a subsequent proceeding.
Id. at 1655; see 42 U.S.C. §
argues that Mach Mining speaks only to the scope of
judicial review under § 2000e-5(b) and does not govern
the scope of discovery available under the standard of
review. But this argument is inconsistent with
Mach Mining's holding that "' [n]
othing said or done during and as a part of [conciliation]
may be made public by the Commission, its officers or
employees, or used as evidence in a subsequent
proceeding.'" Id. (quoting 42 U.S.C. §
2000e-5(b)). This holding constrains disclosure of facts
related to the conciliation process to what is necessary for
the court to decide whether the EEOC discharged its duty to
conciliate. Id. at 1656. The court must therefore
consider Defendant's discovery requests in light of the
limited scope of review to determine whether they are
"relevant to any party's claim or defense and
proportional to the needs of the case." Fed.R.Civ.P.
26(b) (1); see also EEOC v. New Mexico, Corrections
Department, Civ. No. 15-879 KG/KK, 2016 WL 9777238, at
*5 (D.N.M. Sept. 30, 2016) (concluding Rule 26 and Mach
Mining prohibit discovery of documents related to the
substantive content of conciliation discussions).
argues that its discovery requests are relevant to its
contentions that the EEOC has not discharged its duty to
conciliate because" (1) the EEOC failed to timely
provide any specific allegation of Landry's
'disability' to Walmart and (2) the EEOC failed to
engage[) in good faith conciliation discussions, which
resulted in denying Walmart an actual opportunity to remedy
the allegedly discriminatory practice by concealing and
misrepresenting information." To decide Plaintiff's
Motion to Quash the court must assess whether these
allegations are within the court's scope of review and
whether Defendant's discovery requests are appropriate in
light of that scope of review.
Specific Allegation of Disability
EEOC must notify the Defendant of the nature of the
"specific allegation" against it as part of
engaging it in pre-litigation conciliation. Mach
Mining, 135 S.Ct. at 1655-56. Defendant seeks discovery
of evidence that Plaintiff did not notify Defendant of the
specific type of disability suffered by Landry.
cases the EEOC satisfies the notice requirement when it sends
an employer a letter that details the specific allegation
that the employer has engaged in employment discrimination.
Id. But at least one federal district court has
stated that notice would not be sufficient to satisfy the
requirement unless the EEOC specifies the disability suffered
by the complainant in the case. EEOC v. Amstead Rail Co.,
Inc., 169 F.Supp.3d 877, 885 (S.D. Ill. 2016) . This
court agrees. The ADA claim brought by Plaintiff alleges that
Defendant engaged in employment discrimination against a
disabled person who is a qualified individual on the basis of
disability. 42 U.S.C. § 12112(a). Qualified individuals
under the ADA are those "who, with or without reasonable
accommodation, can perform the essential functions of the
employment position." 42 U.S.C. § 12111(8). Whether
a disabled person is able to perform a job's essential
functions with or without reasonable accommodation requires a
fact-specific inquiry as to the disability suffered and the
job's requirements. See Stevens v. Rite Aid
Corp., 851 F.3d 224, 229 (2d Cir. 2017); Holbrook v.
City of Alpharetta, Georgia, 112 F.3d 1522, 1527 (11th
Cir. 1997). This means that an employer needs to know the
alleged disability of the complainant to understand an ADA
employment discrimination claim against it. Accordingly, the
EEOC must inform an employer of the specific disability
involved as part of the allegations underlying an ADA claim.
Whether Plaintiff sufficiently notified Defendant is subject
to review, and therefore discovery of what information
Plaintiff provided Defendant regarding Landry's specific
disability is appropriate. See Fed.R.Civ.P.
Requests for Admission Nos. 20, 21, 24, 25, and 34 all
involve whether Plaintiff notified Defendant of Landry's
specific disability. These discovery requests are
proportionate and relevant to the court's limited scope
of review over conciliation. ...