About a month ago the Eastern District of California identified a split among the circuit courts regarding the proper standard for reviewing whether the EEOC has attempted to "conciliate" in good faith. (See here.) Earlier this week a district judge in the Southern District of Texas flagged yet another circuit conflict involving Title VII's conciliation requirement. See generally 42 U.S.C. § 2000e-5(b) (requiring the EEOC to make a good-faith effort to eliminate unlawful employment discrimination administratively through informal methods such as "conciliation" before initiating a civil action).
In his opinion, the district judge noted that "circuit courts have split over whether administrative remedies must be exhausted before a party may enforce a conciliation agreement," adding, "the Fifth Circuit has not addressed the issue." Pasley v. Centerpoint Energy Houston Elec., Civil Action Nos. H-11-2341 & H-11-4376 (S.D. Tex. Mar. 6, 2012) (mem. op.). The plaintiff in this case was concerned that his failure to obtain a right-to-sue letter from the EEOC to pursue his claims related to the conciliation agreement would result in dismissal in district court for failure to exhaust administrative remedies. Id. at n.3. The following circuits disagree over whether this scenario deprives a federal district court of subject-matter jurisdiction:
Compare Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1305–06 (10th Cir. 2000); Eatmon [v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1508, 1510 n.8 (11th Cir. 1985);] with Blank v. Donovan, 780 F.2d 808, 809–10 (9th Cir. 1986); Parsons v. Yellow Freight Sys., Inc., 741 F.2d 871, 874 (6th Cir. 1984). The Court need not resolve this dispute at this time, however, as Plaintiff does not appear to argue that his failure to exhaust administrative remedies deprives the Court of subject matter jurisdiction such that it should remand the case to state court.
Pasley v. Centerpoint Energy Houston Elec., Civil Action Nos. H-11-2341 & H-11-4376 (S.D. Tex. Mar. 6, 2012) (mem. op.).