# Equal Employment Opportunity Commission v. DolGenCorp, LLC

> District Court, E.D. Oklahoma · February 2, 2024

URL: https://www.frixlaw.com/law-library/cases/10385918

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** February 2, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10385918

## How later opinions describe it (automated extraction)

- noting that the McDonnell Douglas proof standard applies to ADEA claims

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

EQUAL EMPLOYMENT )
OPPORTUNITY COMMISSION, )
)
Plaintiff, )
)
v. ) Case No. CIV-21-295-GLJ
)
DOLGENCORP, LLC, doing business as )
Dollar General, )
)
Defendant. )

ORDER

This matter is before the Court on dueling motions for summary judgment.
Defendant DolGenCorp LLC, doing business as Dollar General, moves for summary
judgment on all of Plaintiff EEOC’s claims against Defendant, based on age
discrimination. Plaintiff also moves for partial summary judgment as to Defendant’s
defenses. For the reasons set forth below, the Court finds that Defendant’s Memorandum
in Support of Motion for Summary Judgment [Docket No. 100] should be GRANTED IN
PART and DENIED IN PART, and Plaintiff EEOC’s Motion for Partial Summary
Judgment with Brief in Support [Docket No. 102] should be GRANTED IN PART and
DENIED IN PART. Additionally, Plaintiff’s Motion to Strike Confidential Exhibits to
Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment [Docket No.
117] is hereby GRANTED, and Defendant’s Motion for Leave to Supplement Evidence in
Response to EEOC’s Partial Motion for Summary Judgment [Docket No. 122] is DENIED
as MOOT.
I. PROCEDURAL HISTORY
On September 30, 2021, Plaintiff filed the Complaint on behalf of three former

Dollar General District Managers [“DMs”] and other DMs over the age of 50 in the Eastern
District of Oklahoma. Docket Nos. 1-2. On November 15, 2023, Defendant moved for
summary judgment [Docket No. 100] on all claims, and Plaintiff moved for partial
summary judgment [Docket No. 102] as to Defendant’s defenses, including failure to
mitigate and meeting conditions precedent to filing suit.
Plaintiff’s allegations focus on discriminatory treatment that District Managers Bill

Sims, Gregory Phillips, and Gloria Lorenzo allegedly experienced from Defendant,
through their Regional Manager, Nic DeAngelis. Plaintiff alleges four claims under the
Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. Specifically, Plaintiff’s
Complaint asserts claims for: (1) age-based harassment by DeAngelis as to Sims, Phillips,
Lorenzo, and other DMs over the age of 50 in Region 73; (2) constructive discharge with

regard to Sims and other DMs over the age of 50 in Region 73; (3) discharge with regard
to Phillips, Lorenzo, and other DMs over the age of 50 in Region 73; and (4) termination
in retaliation for engagement in protected activity, with regard to Phillips, Lorenzo, and
other DMs over the age of 50 in Region 73. See Docket No. 2, pp. 9-11, ¶¶ 51-69.
II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the record shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show
the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986), with the evidence taken in the light most favorable to the non-moving party,
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party asserting that
a fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute[.]” Fed. R. Civ. P. 56(c).
In employment discrimination cases, “[m]any of the highly fact-sensitive

determinations involved in these cases are best left for trial and are within the province of
the jury.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1221 (10th Cir. 2015) (quotation
omitted). “The rule in this Circuit . . . is that an employment discrimination suit will always
go to the jury so long as the evidence is sufficient to allow the jury to disbelieve the
employer’s proffered reason for the employment action.” Beaird v. Seagate Tech., Inc.,

145 F.3d 1159, 1177 (10th Cir. 1998) (Tacha, J., concurring in part) (citing Randle v. City
of Aurora, 69 F.3d 441, 451-452 (10th Cir. 1995) (“[I]f this inferential evidence is
sufficient to allow a plaintiff to prevail at trial, it is surely sufficient to permit a plaintiff to
avoid summary judgment so that the plaintiff can get to trial.”).
III. FACTUAL BACKGROUND

There appear to be few agreed-upon facts in this case. At a minimum, Defendant
hired Nic DeAngelis, age 28, on July 11, 2016, as a Regional Director (RD) of Region 73
for Dollar General Stores, which falls within this Court’s District. This role included, inter
alia, supervising up to twelve DMs, who themselves were managing individual Store
Managers for Dollar General stores within Region 73. On September 23, 2016, DM Chip
Boyles resigned, citing a hostile work environment and that he believed his age (52 years

old) was a “real problem” for DeAngelis. See Docket No. 100, Ex. 9, p. 10. In response
to this resignation, Employee Relations Manager Sarah Price emailed Region 73 DMs to
“get a state of the union consensus,” see Docket No. 110, Ex. 6, p. 5, asking them to provide
a “statement involving the status of your region and how you are responding to changes[,]”
instructing them to be “as open and honest as possible. If things are good, please state that.
I need some response.” See Docket No. 110, Ex. 6, pp. 11-23. She also interviewed at

least one DM. By September 9, 2016, Ms. Price determined that Boyles’ allegations were
“unsubstantiated,” but also recommended coaching for DeAngelis, including “[s]taying
away from anything regarding age.” Id., p. 5. Senior Director of Field Human Resources
Dana Johnson and District Vice President Jeff Mooney met with DeAngelis on September
23, 2016, advising him to, inter alia, “[c]ease and desist any/all communication around age

as it is a protected status” and to “be professional.” Id., p. 7. In October 2016, DeAngelis
terminated DM Gregory Phillips, who was 56 years old, and replaced him with a temporary
DM who was 36 years old, then a 47-year-old DM. See Docket Nos. 100, p. 15; 110, pp.
8, 9, 24; 115, p. 7 (“RTFR 25” & n. 5). He terminated District Manager Gloria Lorenzo,
who was 63 years old, in November 2016, and replaced her with a 54-year-old District

manager. Id. Both Phillips and Lorenzo had provided negative feedback regarding
DeAngelis when Price requested a response. Docket No. 110, Ex. 6, pp. 4, 11.
On August 31, 2017, District Manager Bill Sims emailed Mia Savaloja, with a
Subject line of “Unprofessional RD [Regional Director] conduct.” See Docket No. 110,
Ex. 12. He noted that she had a background in HR and that he wanted to speak with her
because he was not comfortable with the current HR leaders and that his “RD boasts about

they can’t so [sic] anything to him anyway.” Id. He requested a one-on-one meeting, as
well as confidentiality, to discuss “vulgar language issues, age discrimination issues along
with heavy handed management.” Id. She did not see and/or respond to the email. See
Docket No. 110, Ex. 14, p. 5. On December 15, 2017, Sims, 58 years old resigned, citing
“terrible language issues,” “age discrimination remarks,” and “sexual
commentary/touching that is over the line.” See Docket No. 100, Ex. 1, p. 94. Defendant,

through District Vice President Mooney, terminated DeAngelis’s employment on January
10, 2018. On January 12, 2018, DeAngelis submitted a Termination Dispute Form, stating
that the reason he was given for termination was “Age Discrimination/Hostile
Environment.” Id., Ex. 1, p. 1.
The facts in dispute include, but are not limited to: (i) whether Price conducted an

investigation or merely a “climate survey” in September 2016; (ii) whether the 2016
allegations against DeAngelis were unsubstantiated or not; (iii) whether Sims properly
reported harassment prior to his resignation; (iv) whether DeAngelis fired Phillips and
Lorenzo for cause or based on age discrimination and retaliation for engaging in protected
activity; and (v) whether DeAngelis was fired for inappropriate conduct or age

discrimination/creation of a hostile work environment.
IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A. ADEA Claims in General

Under the Age Discrimination in Employment Act (“ADEA”), “[i]t shall be
unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). “In
most cases, where no direct evidence of discrimination is present, a plaintiff must prove
discriminatory intent through the burden-shifting framework articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).” E.E.O.C. v. Kanbar Prop. Mgmt., L.L.C.,
2013 WL 4512671, at *3 (N.D. Okla. Aug. 23, 2013); see also Hazen Paper Co. v. Biggins,
507 U.S. 604, 612 (1993) (noting that the McDonnell Douglas proof standard applies to
ADEA claims). To state a prima facie case for an ADEA discrimination claim, a “plaintiff
must show: 1) [he or] she is a member of the class protected by the statute; 2) [he or] she

suffered an adverse employment action; 3) [he or] she was qualified for the position at
issue; and 4) [he or] she was treated less favorably than others not in the protected class.”
Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998). “Once the plaintiff
establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate
nondiscriminatory reason for the action. If the defendant does so, the plaintiff must show

the defendant’s proffered reasons are pretextual.” Id. (citing Jones v. Unisys Corp., 54
F.3d 624, 630 (10th Cir. 1995)). Although often referred to as a “but-for” causation factor,
an employer may be held liable for age discrimination even if other factors contributed to
the termination “as long as ‘age was the factor that made a difference.’” Jones v. Oklahoma
City Public Schools, 617 F.3d 1273, 1277-1278 (10th Cir. 2010) (quoting Wilkerson v.
Shinseki, 606 F.3d 1256, 1266 (10th Cir. 2010)).
B. Count I: Harassment as to Sims, Phillips, and Lorenzo1

To constitute “actionable” harassment, the conduct “must be ‘sufficiently severe or
pervasive to alter the conditions of [the victim’s] employment and create an abusive
working environment[.]’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). In determining whether
conduct is sufficiently severe or pervasive, the Tenth Circuit considers, under the totality

of the circumstances: “(1) the frequency of the discriminatory conduct; (2) the severity of
the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee’s work performance.” Holmes v. Regents of Univ. of Colo., 176 F.3d 488, 1999
WL 285826, at *7 (10th Cir. May 7, 1999) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17,

23 (1993)). This is both an objective and a subjective examination, id. (citing Davis v. U.S.
Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998)), which is “‘particularly unsuited for
summary judgment because it is quintessentially a question of fact.’” Herrera v. Lufkin
Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (quoting McCowan v. All Star

1 “[T]he issue of whether a plaintiff may proceed utilizing a hostile environment theory under the
ADEA remains unsettled. Although this circuit has not expressly recognized a cause of action for
hostile work environment under the ADEA, it has considered a case where the plaintiff raised the
issue. For purposes of this case, we assume without deciding [Plaintiff] may advance a hostile
work environment claim under the ADEA.” Holmes v. Regents of Univ. of Colorado, 176 F.3d
488, 1999 WL 285826, at *7 n.6 (10th Cir. 1999) (Table decision) (citing McKnight v. Kimberly
Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (considering and deciding a hostile work
environment claim under the ADEA, but not addressing the apparent lack of authority for raising
such a theory)).
Maintenance, Inc., 273 F.3d 917, 923 (10th Cir. 2001)). Thus, “[i]n order to survive
summary judgment, the record must support both an inference of a hostile work

environment and a basis for employer liability.” Faragalla v. Douglas Cnty. Sch. Dist. RE
1, 411 Fed. Appx. 140, 154 (10th Cir. 2011) (citing Ford v. West, 222 F.3d 767, 775 (10th
Cir. 2000).2
Here, the Court finds there is a genuine issue of material fact as to whether Plaintiff
can show a severe or pervasive hostile work environment sufficient to alter the conditions
of employment for Sims, Phillips, Lorenzo, and other DMs. Plaintiff submitted evidence

to rebut Dollar General’s assertions that DeAngelis made a “handful of benign comments”
about “shaking things up” and bringing in “fresh blood,” by noting that on 4-5 occasions
he told Phillips, who was fired three months after DeAngelis was hired, that he wanted to
build a “millennial team” and referred to older DMs as “grumpy old men.” Additionally,
Plaintiff contends the references to “fresh blood” are not benign but in the context of

referring to older DMs as “grumpy old men,” asking Lorenzo if she can “keep up,” and
telling her that Dollar General is a “young man’s job.” See Docket No. 110, Ex. 10. Indeed,
Lorenzo reported when asked by HR in September 2016 that DeAngelis had implied she
was too old for her job, that he created a hostile work environment, and that she believed
her job was in jeopardy because of her age. Docket No. 110, Ex. 6, p. 4. Phillips reported

concerns to HR in September 2016, including lack of professionalism and being told it was

2 Although Faragalla and Ford are Title VII cases, “the Tenth Circuit generally interprets the
ADEA in tandem with Title VII because the ADEA is based in substantial part on Title VII.” Allen
v. CGI Management, Inc., 2005 WL 2429750, at *2 (W.D. Okla. Sept. 30, 2005).
“the time of millennials.” See Docket No. 110, Ex. 6, pp. 6, 11. Both Lorenzo and Phillips
expressed concerns for confidentiality.

As to Sims, at the time of the September 2016 inquiry, he wrote a positive report,
stating, in part, that everyone needed to “get past [DeAngelis’s] age.” Id., p. 15. When he
resigned in December 2017, however, he cited “terrible language issues with the current
leader, age discrimination remarks, and in some cases, even sexual commentary/touching
that is over the line.” See Docket No. 100, Ex. 1, p. 94. He noted that these comments
were “surrounded” by references to a “millennial attitude, his millennial team and the lack

of ability of the ‘grumpy old men group’ to stay up with him.” Id. He continued, asserting
that no DM would speak up due to job security concerns without some assurance of
confidentiality, and noted that he had attempted to communicate his concerns but he never
heard back from “that person” (Savaloja). Id. By January 5, 2018, a Dollar General
Director of Employee Relations communicated that their investigation showed multiple

people substantiating that DeAngelis “treats age protected individuals differently, manages
through fear and intimidation, behaves inappropriately with frequent profanity and telling
people he doesn’t want to hire homosexuals, and that he shows [another] DM favoritism
and may have an intimate relationship with her.” Docket No. 110, Ex. 28. Additionally,
he reportedly told multiple people that he was “untouchable” because someone in

management would “protect him.” Id. While Defendant disputes some of the specifics
and the implications that arise, Defendant attempts to discuss individual incidents as
opposed to general work atmosphere, which is inappropriate for a hostile environment
claim. See Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1262 (10th Cir.
1998) (“Indeed, the very term ‘environment’ indicates that allegedly discriminatory
incidents should not be examined in isolation. ‘[O]ne of the critical inquiries in a hostile

environment claim must be the environment. Evidence of a general work atmosphere
therefore—as well as evidence of specific hostility directed toward the plaintiff—is an
important factor in evaluating the claim.’”) (quoting Hicks v. Gates Rubber Co., 833 F.2d
1406, 1415 (10th Cir. 1987)). Thus, Plaintiff sufficiently raises genuine issues of material
fact as to the severity and pervasiveness of DeAngelis’s actions under the totality of the
circumstances. Accordingly, Defendant is not entitled to summary judgment on this claim.

C. Count II: Constructive Discharge as to Sims
Constructive Discharge. “The full test for constructive discharge under the ADEA
is whether the employer made working conditions so intolerable that a reasonable person
would feel []he has no choice but to resign.” Delopez v. Bernalillo Pub. Sch., 2022 WL
17844509, at *6 n.5 (10th Cir. Dec. 22, 2022) (citing Derr v. Gulf Oil Corp., 796 F.2d 340,

344 (10th Cir. 1986); James v. Sears, Roebuck & Co., 21 F.3d 989, 992 (10th Cir. 1994)).
“Constructive discharge turns on whether the employer made working conditions
intolerable by its illegal discriminatory acts.” Id. (citing Derr, 796 F.2d at 344); see also
Bolden v. PRC Inc., 43 F.3d 545, 552 (10th Cir. 1994) (“[N]ot every unhappy employee
has an actionable claim of constructive discharge[.]”). This is an “objective, totality of the

circumstances standard.” Lara v. Unified Sch. Dist. #£501, 350 Fed. Appx. 280, 283 (10th
Cir. 2009) (citation omitted). “In other words, the degree of discrimination in the
workplace must be such that [Defendant] ‘did not allow [Sims] the opportunity to make a
free choice regarding his employment relationship.’” Martinez v. Startek USA, Inc., 2020
WL 4448717, at *8 (D. Colo. Aug. 2, 2020) (quoting Sotunde v. Safeway, Inc., 716 Fed.
Appx. 758, 768 (10th Cir. 2017)). “The plaintiff's burden in a constructive discharge case

is substantial and showing that the employer’s conduct meets the definition of tangible
employment action or adverse employment action is not necessarily sufficient to establish
a constructive discharge because a constructive discharge requires a showing that the
working conditions imposed by the employer are not only tangible or adverse, but
intolerable.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 805 (10th Cir. 2007) (quotations
omitted).

“To assess the voluntariness of a resignation a court examines, based on the totality
of the circumstances, whether the employee (1) was given an alternative to resignation;
(2) understood the nature of her decision to resign; (3) had a reasonable time in which to
decide to resign; and (4) was permitted to select the effective date of resignation.” Compton
v. Pappas Rest., Inc., 2015 WL 5279719, at *6 (D. Colo. Sept. 10, 2015) (citing Yearous

v. Niobrara Cnty. Mem. Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997); see also Parker v.
Bd. of Regents of Tulsa Jr. College, 981 F.2d 1159, 1162 (10th Cir. 1992)). “For example,
an employee who was offered reinstatement to the same position, with the same salary and
benefits may have difficulty proving that his resignation was involuntary.” Id.
Defendant contends it did just that when they fired DeAngelis and asked Sims to

stay, but Plaintiff contends Sims was not asked to stay employed after DeAngelis was fired,
only that he was asked to stay two days before DeAngelis was fired. Indeed, Defendant
both faults Sims for “choosing” to work under these conditions for over a year before
leaving but also for refusing to return when offered the job. Defendant again cites Sims’s
failure to offer negative feedback twice when feedback about DeAngelis was solicited, that
he did not know why the other DMs had been terminated, that Sims had an affirmative duty

to report harassment, and that his report to Savaloja was not an adequate attempt. Plaintiff,
however, asserts DeAngelis created working conditions that ultimately forced Sims to
resign, i.e., he repeatedly referred to Sims and others as “grumpy old men”; criticized him
for not keeping up with a “millennial team”; threated to fire Sims multiple times per week
and further used strenuous obscenities over 20 times, causing Sims to fear termination; and
at least six times told Sims that management “had his [DeAngelis’] back.” Additionally,

Plaintiff alleges Sims did properly report DeAngelis through Defendant’s “open door”
policy, but that Savaloja failed to respond, and that the harassment worsened after that time.
Plaintiff contends that Sims ultimately reached a point where he was “forced” to quit.
Although the testimony here is “susceptible to multiple interpretations[,]”
Strickland v. United Parcel Serv., Inc., 555 F.3d 1224, 1229 (10th Cir. 2009), the Court

finds that on this record, a reasonable person could not find, under an objective standard,
that Defendant allowed Sims’s working conditions to become so intolerable that it was
nearly impossible for him to continue performing his job such that he had no other choice
but to quit. See, e.g., Griddine v. GP1 KS-SB, Inc., 2019 WL 1002049, at *22 (D. Kan.
Feb. 28, 2019) (“Griddine fails to meet the stringent test for constructive discharge because

he lacks proof that Defendants made his working conditions so difficult that a reasonable
person in his position would feel compelled to resign.”). Accordingly, Defendant is
entitled to summary judgment on Count II, the claim of constructive discharge as to Sims.
Faragher/Ellerth Affirmative Defense. As part of its defense of this case,
Defendant raises the Faragher/Ellerth affirmative defense. “If a reasonable jury could find

this to be the case [that an employee was constructively discharged], then the
[Faragher/Ellerth] affirmative defense is not available . . . because the Supreme Court has
found that a constructive discharge is a tangible employment act.” James v. Frank’s
Westates Servs., Inc., 747 F. Supp. 2d 1264, 1273 & n.30 (D. Utah 2010) (citing
Pennsylvania State Police v. Suders, 542 U.S. 129, 140-141 (2004) (“[A]n employer does
not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official

act precipitates the constructive discharge; absent such a ‘tangible employment action,’
however, the defense is available to the employer whose supervisors are charged with
harassment.”). Here, the Court finds Defendant is entitled to summary judgment on Sims’s
alleged constructive discharge, and thus no tangible employment action was taken that
would otherwise have prevented this affirmative defense.

Under the Faragher/Ellerth affirmative defense:
When no tangible employment action is taken, a defending employer may
raise an affirmative defense to liability or damages, subject to proof by a
preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense
comprises two necessary elements: (a) that the employer exercised
reasonable care to prevent and correct promptly any [] harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the employer or to
avoid harm otherwise. While proof that an employer had promulgated an
antiharassment policy with complaint procedure is not necessary in every
instance as a matter of law, the need for a stated policy suitable to the
employment circumstances may appropriately be addressed in any case when
litigating the first element of the defense. And while proof that an employee
failed to fulfill the corresponding obligation of reasonable care to avoid harm
is not limited to showing any unreasonable failure to use any complaint
procedure provided by the employer, a demonstration of such failure will
normally suffice to satisfy the employer's burden under the second element
of the defense. No affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment.

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775, 807-808 (1998) (same). “[T]he Ellerth/Faragher defense applies in
ADEA cases.” Stapp v. Curry Cnty. Bd. of Cnty. Commissioners, 672 Fed. Appx. 841, 846
(10th Cir. 2016).
The first element raises a genuine issue of material fact as to whether Defendant
exercised reasonable care to correct and prevent harassing behaviors. “As for the
correction requirement, an employer must ‘show that it acted reasonably promptly . . . when
it was given proper notice of [the employee's] allegations as required under its complaint
procedures.’” Stapp, 672 Fed. Appx. at 849-850 (quoting Helm v. Kansas, 656 F.3d 1277,
1290 (10th Cir. 2011)). Defendant contends the previous investigation was unsubstantiated
as to complaints against DeAngelis, while Plaintiff contends it was a mere “climate survey”
that did not properly investigate the complaints or support those DMs whose responses
were not in favor of DeAngelis.

As to the second element, “an employer satisfies its burden ‘by showing that the
victimized employee unreasonably delayed in reporting [or never reported] incidents of
[prohibited] harassment.’” Stapp, 672 F.3d at 849-850 (quoting Helm, 656 F.3d at 1291).
The second question is whether Sims “unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer.” Faragher, 524 U.S. at

765; Ellerth, 524 U.S. at 807-808. Defendant contends Sims had previously reported
positive things about DeAngelis, knew of proper HR procedures, had used them with
success in other contexts, and that he further received from DeAngelis in 2017 a good

performance review, a raise, and bonuses from DeAngelis, including a bonus he received
the day he resigned. Additionally, Defendant notes that they conducted an investigation
after Sims resigned, which did result in DeAngelis’s termination.
Plaintiff contends that Defendant had an “open door” HR policy, allowing him to
report discrimination to any employee, which he did in August 2017. Furthermore, a
previous use of a grievance policy/procedure does not establish an employee is

unreasonable as a matter of law in failing to use them to report “abuse at the hands of h[is]
supervisor.” Kramer v. Wasatch County Sheriff’s Office, 743 F.3d 726, 750-751 (10th Cir.
2014). “It is not enough for [Defendant] to simply show that [Sims] did not complain; it
must also show that h[is] failure to do so was unreasonable under the circumstances.”
Kramer, id. at 751. Here, Plaintiff asserts that Sims did not follow the HR chain of

command because he feared retaliation, he believed DeAngelis was “protected” and/or
“untouchable,” and his attempted contact with Ms. Savaloja was not returned.
Additionally, Plaintiff contends DeAngelis threatened him with retaliation and losing his
job, and he knew DeAngelis had already fired two other older DMs. Defendant challenges
the length of time between the terminations of Phillips and Lorenzo and Sims’s resignation,

but that appears to be a question of fact under the totality of the circumstances here. Thus,
there is evidence Sims feared retaliation and lacked confidence in Defendant’s remediation
efforts. Here, like Kramer, “there was evidence from which a jury could find that the
plaintiff's failure to complain was not unreasonable because []he feared retaliation and h[is]
prior complaint[] had been ignored[.]” Tilghman v. Kirby, 662 Fed. Appx. 598, 602 (10th
Cir. 2016) (Kramer contrasted with facts in Tilghman, where there was “no evidence that

Ms. Tilghman had made any prior complaints that went unaddressed or that Mr. Kirby had
threatened her job.”). Because genuine issues of material fact remain as to both elements,
a jury must determine whether Defendant has met these elements.
D. Count III: Discharge as to Phillips and Lorenzo
Next, Phillips and Lorenzo allege that their terminations violated the ADEA.
Plaintiff contends that both direct and circumstantial evidence support this claim. As

discussed above, the McDonnell-Douglas burden-shifting analysis applies with
circumstantial evidence. “‘To establish a prima facie case that her termination violated the
ADEA, a plaintiff must plead and prove that 1) she was a member of the protected class of
individuals age 40 or older; 2) she was performing satisfactory work at the time; 3) her
employment was terminated; and 4) she was replaced by a younger person, although not

necessarily one less than 40 years of age.’” E.E.O.C. v. Goodwill Indus. of Sw. Oklahoma
& N. Texas, Inc., 2013 WL 5460819, at *11 (W.D. Okla. Sept. 30, 2013) (quoting Adamson
v. Multi Community Diversified Services, Inc., 514 F.3d 1136, 1146 (10th Cir. 2008)).
The Court reviewed the briefing of the parties, the evidence submitted, as well as
the law, and ultimately concludes that there are genuine issues of material fact as to the

reason for DeAngelis’s terminations of Phillips and Lorenzo. Plaintiff provided evidence
suggesting a reasonable inference that DeAngelis terminated their employment based on
their age, while Defendant has evidence suggesting their terminations were based on
falsification of records. The Court finds it remains a jury question as to whether the reason
for their terminations was pretextual. See, e.g., Hayes v. DG Retail, LLC, 2019 WL
3239279, at *1 (D. Kan. July 18, 2019) (Plaintiff has “evidence suggesting a reasonable

inference that defendant terminated his employment either because of plaintiff's disability
(an anxiety disorder) or because of plaintiff's age (55 at the time of termination).
Conversely, defendant has evidence suggesting a reasonable inference that plaintiff's
employment was terminated based on falsification of company documents. . . . The
circumstances surrounding plaintiff's employment termination, the reasons for the
termination, and the reason defendant opposed plaintiff's unemployment appeal are for a

jury to decide.”).
Defendant additionally contends that it is entitled to summary judgment on
Phillips’s discharge claim because they found after-acquired evidence that he should never
have even been hired, due to a previous termination and criminal conviction for theft of
company property from a different employer. Defendant contends Phillips lied on his

application and never would have been hired had he not done so. See McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 362 (1995) (“Once an employer learns about
employee wrongdoing that would lead to a legitimate discharge, we cannot require the
employer to ignore the information, even if it is acquired during the course of discovery in
a suit against the employer and even if the information might have gone undiscovered

absent the suit.”). Plaintiff contends Defendant is not excused from liability here, despite
not challenging that Phillips would have been terminated on this ground had Defendant
been aware of it, and acknowledges they are only seeking damages for Phillips from his
October 2016 through July 2019 employment, which is prior to Dollar General obtaining
the evidence of his previous termination and conviction. See id. at 357, 362 (“The object
of compensation is to restore the employee to the position he or she would have been in

absent the discrimination, but that principle is difficult to apply with precision where there
is after-acquired evidence of wrongdoing that would have led to termination on legitimate
grounds had the employer known about it. . . . We conclude that a violation of the ADEA
cannot be so altogether disregarded. . . . An absolute rule barring any recovery of backpay
[as opposed to reinstatement or front pay, which would be “inequitable and pointless”],
however, would undermine the ADEA's objective of forcing employers to consider and

examine their motivations, and of penalizing them for employment decisions that spring
from age discrimination.”) (citation omitted). Defendant is therefore not entitled to
summary judgment as to Count III, with regard to either Lorenzo or Phillips. Admission
of evidence related to Phillips’s hiring and previous employment history will be addressed
in conjunction with a ruling on Plaintiff EEOC’s Motion in Limine with Brief in Support

[Docket No. 103].
E. Count IV: Discharge in Retaliation for Protected Activity as to Phillips
and Lorenzo

Plaintiff’s final Complaint allegation is that Defendant retaliated against Phillips
and Lorenzo for reporting age discrimination. Specifically for a retaliation claim under the
ADEA, Plaintiff must “show that (1) he or she engaged in protected opposition to
discrimination, (2) a reasonable employee would have considered the challenged
employment action materially adverse, and (3) a causal connection existed between the
protected activity and the materially adverse action.” Hinds v. Sprint/United Mgmt. Co.,
523 F.3d 1187, 1202 (10th Cir. 2008). Plaintiff alleges both Lorenzo and Phillips
complained to HR about DeAngelis in September 2016, which resulted in retaliation from

DeAngelis, including Lorenzo being placed on an “unjustified” performance improvement
plan, and in both ultimately being terminated. Defendant contends DeAngelis was not
aware of the statements by Lorenzo and Phillips, and the timing of their termination (one
month for Phillips and two months for Lorenzo) is coincidence. Further, Defendant
contends there is no causal connection because Lorenzo was terminated for cause after over
two months elapsed from the interview with Lorenzo and her termination. See Conroy v.

Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013) (“It appears clear that, if the adverse action
occurs in a brief period up to one and a half months after the protected activity, temporal
proximity alone will be sufficient to establish the requisite causal inference; but it is equally
patent that if the adverse action occurs three months out and beyond from the protected
activity, then the action's timing alone will not be sufficient to establish the causation

element.”).
The Court again finds summary judgment is not appropriate. Plaintiff establishes a
prima facie case of retaliation and likewise “provided sufficient circumstantial evidence of
disparate treatment to support a genuine issue of material fact,” Hamilton v. Brennan, 2019
WL 6498173, at *1 (D. Utah Dec. 3, 2019), as to whether Defendant’s justifications for

terminating Phillips and Lorenzo were pretextual. Id. (citing Bryant v. Farmers Ins. Exch.,
432 F.3d 1114, 1125 (10th Cir. 2005) (“[O]nce a plaintiff presents evidence sufficient to
create a genuine factual dispute regarding the veracity of a defendant's nondiscriminatory
reason, we presume the jury could infer that the employer acted for a discriminatory reason
and must deny summary judgment.”)); see also Morgan v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997) (“Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence and hence infer that the employer did not act for the asserted non-discriminatory
reasons.”) (quotation omitted)). Summary judgment as to this claim is therefore denied.
Additionally, Plaintiff is requesting emotional distress and punitive damages as part
of the retaliation claim. Although “[t]he Tenth Circuit prohibits recovery of either

compensatory or punitive damages for an ADEA discrimination claim,” Brunner v. GN
Bank, N.A., 2023 WL 2474683, at *18 (D. Kan. Mar. 13, 2023) (emphasis added) (citing
Villescas v. Abraham, 311 F.3d 1253, 1259, 1261 (10th Cir. 2002)), it “has not decided
whether those damages are available for retaliation claims under the ADEA or ADA[.]”
Id. Defendant contends that these are prohibited under the law. Plaintiff notes there is a

Circuit split as to whether these damages are available and asks the Court to adopt the
Seventh Circuit’s view that a jury should be allowed to consider compensatory and punitive
damages. See Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 283 (7th Cir. 1993) (“An
exception to the narrow construal of ‘legal relief’ has been recognized for the case in which
the plaintiff charges that he was retaliated against for exercising his rights under the age

discrimination law. In Travis v. Gary Community Mental Health Center, Inc., 921 F.2d
108, 112 (7th Cir. 1990), we treated this provision as creating a tort for which the usual
common law damages can be obtained.”) (citing, inter alia, 29 U.S.C. § 623(d); Soto v.
Adams Elevator Equipment Co., 941 F.2d 543, 551 (7th Cir. 1991)). The Fifth Circuit,
however, reached the opposite conclusion, finding such damages are not available. See
Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588, 592 (5th Cir. 2017) (“Dean held that

similar language in the ADEA's remedy provision did not make pain and suffering damages
available, because such damages would frustrate the ADEA's preference for administrative
resolutions. That preference remains in the ADEA, and requires the same result we reached
in Dean for all ‘private actions posited upon the ADEA.’”) (quoting Dean v. American Sec.
Inc. Co., 559 F.2d 1036, 1038-1039, 1040 (5th Cir. 1977)).
The Court agrees with the Fifth Circuit and the District of Colorado, which states,

“the Tenth Circuit, if faced with the issue, would find that neither punitive damages nor
emotional distress damages are available for ADEA retaliation claims.” Marshall v. BNSF
Ry. Co., 2020 WL 128054, at *4 (D. Kan. Jan. 10, 2020) (citing Bruno v. Western Elec.
Co., 829 F.2d 957, 967 (10th Cir. 1987)). “[T]he Tenth Circuit . . . did not permit recovery
of compensatory and punitive damages for ADEA discrimination claims. And there is no

reason to treat retaliation claims differently.” Brunner, 2023 WL 2474683, at *18 (citing
Perrell v. Financeamerica Corp., 726 F.2d 654, 657 (10th Cir. 1984); Bruno, 829 F.2d at
967; Marshall, 2020 WL 128054, at *4; Vaughan, 849 F.3d at 591-592). Accordingly,
Plaintiff’s request for emotional distress and punitive damages pursuant to the ADEA
retaliation claim is foreclosed.

V. PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT

Plaintiff moved for partial summary judgment with regard to four of Defendant’s
31 affirmative defenses, asserting that: (1) Dollar General’s “failure to mitigate” defense
fails because Lorenzo, Phillips, and Sims mitigated their damages; (2) EEOC met all
conditions precedent to filing suit, including engaging in conciliation efforts, as well as
seeking relief on behalf of individuals who have not filed charges of discrimination; and

(3) “failure to investigate” is not a proper affirmative defense. These relate to Affirmative
Defenses 6, 7, 20, and 21.
Failure to Mitigate. Plaintiff first argues Affirmative Defense 6, related to whether
Sims, Lorenzo, and Phillips properly mitigated their damages, should be denied. As to this
defense, “wrongfully discharged claimants have an obligation to use reasonable efforts to
mitigate their damages.” EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980). For

“failure-to-mitigate” claims, the employer bears the burden of establishing “(1) that the
damage suffered by plaintiff could have been avoided, i.e. that there were suitable positions
available which plaintiff could have discovered and for which he was qualified; and (2) that
plaintiff failed to use reasonable care and diligence in seeking such a position.” McClure
v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000) (quotation omitted). In

other words, “an employer must prove both that there were suitable, discoverable
employment positions for the plaintiff and that the plaintiff failed to use reasonable
diligence in seeking such employment positions.” Kluth v. Spurlock, 2023 WL 6198894,
at *32 (D. Colo. Sept. 22, 2023) (citing Aguinaga v. United Food & Com. Workers Int’l
Union, 993 F.2d 1463, 1474 (10th Cir. 1993)). See also Carrasco v. Centura Health Corp.,

2021 WL 4913983, at *3 (D. Colo. June 18, 2021) (“I see no indication from the Tenth
Circuit that it is inclined to [] depart from its clear holding in Aguinaga that a defendant
must establish both prongs of the two-part test.”) (citations omitted).
As an initial matter, the Court notes that Plaintiff’s motion for partial summary
judgment on the “failure to mitigate” claim is DENIED AS MOOT as to Defendant Sims

only, in light of the above grant of summary judgment as to Sims on Plaintiff’s constructive
discharge claim. See, e.g., Sotunde v. Safeway, Inc., 2016 WL 10839561, at *14 (D. Colo.
Nov. 22, 2016 (“Because the Court holds that Plaintiff has not presented evidence creating
a disputed issue of material fact over his constructive discharge claims, the Court need not
address Plaintiff's claim for back pay and Defendant's argument pertaining to failure to
mitigate.”), reversed on other grounds, 716 Fed. Appx. 758 (10th Cir. 2017), (citing

Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1236 (10th Cir. 2000) (“the Tenth Circuit
has long held that an award of back pay is not available absent a showing of constructive
discharge.”)); Brown v. Cudd Pumping Servs., Inc., 2015 WL 13658664, at *5 (D.N.M.
Aug. 17, 2015) (“In view of the Court's dismissal of Plaintiff's constructive discharge
claim, the Court denies as moot Defendant's motion for summary judgment on the issue of

failure to mitigate damages.”).
As to Lorenzo and Phillips, the Court finds Defendant fails to establish the first
prong. Although this is a fact-intensive issue where “summary judgment is rarely
appropriate,” Carrasco, 2021 WL 4913983, at *5, the Court finds the circumstances are
met here. For this prong, Defendant provided Exhibit E as an exhibit in its response to

Plaintiff’s Motion. See Docket No. 109, Ex. 5 (“Exhibit E”). In the Response itself,
Defendant refers to Exhibit E once in the body, in a discussion of jobs available to Sims,
with a footnote stating, “Exhibit E contains data received from Monster Worldwide, Inc.
establishing that comparable jobs were available in the Oklahoma area at the time
Claimants were seeking employment.” See Docket No. 109, p. 15, n.8. The exhibit
contains a copy of a subpoena to Monster Worldwide, Inc. (“Monster”), as well as a letter

from Monster indicating that the results provided showed job postings containing the word
“Manager” for four different addresses, three in Oklahoma and one in Missouri. Id., Ex.
5, pp. 2-4. The rest of the exhibit contains approximately 2,818 pages listing jobs in
Arkansas, Oklahoma, Missouri, and Oklahoma for various dates between 2016 and 2023.
It thus seems plausible that there may have been jobs available for Lorenzo and Phillips
during the dates relevant to each of them; however, Defendant has provided no guidance

or support for which listing(s) applies to which former District Manager, much less an
explanation of how these jobs were suitable. See Pena-Flores v. Valley View Hosp. Ass’n,
2020 WL 136661, at *5 (D. Colo. Jan. 13, 2020) (“The Tenth Circuit requires that
employers prove not only the existence of suitable positions, but also the availability of
those positions.”). “[O]n a motion for summary judgment, it is the responding party's

burden to ensure that the factual dispute is portrayed with particularity, without . . .
depending on the trial court to conduct its own search of the record.” Cross v. The Home
Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (quotation omitted). As in Kluth, “Defendants
have not demonstrated a genuine dispute of fact precluding summary judgment in
Plaintiff's favor on the failure-to-mitigate defense.” 2023 WL 6198894, at *33. See also

Carrasco, 2021 WL 4913983, at *5 (“Despite the evidence of hundreds of available RN
positions between August 2018 and February 2021 at Centura as reported by Ms. Roberts,
and hundreds of available RN positions in 2020 as reported by Ms. Corwin, I cannot grant
the motion because Defendants are required to establish not only that jobs were available,
but also that the jobs were suitable. I conclude that Defendants have not established that
suitable positions were available to Plaintiff during the period of her unemployment.”).

Because Defendant fails to establish suitable positions available for either Lorenzo
or Phillips, the Court declines to address the second prong. See Aguinaga, 993 F.2d at
1474 (“The Union failed its burden of establishing the first prong—i.e., that suitable
positions were available for any of the Plaintiffs. Because it failed this prong of its burden,
the Union has failed its burden of proof and evidence that supports the second prong of the
test—i.e., the individual mitigation efforts of Plaintiffs—are simply irrelevant.”).

Plaintiff’s motion for partial summary judgment is granted as to Defendant’s Affirmative
Defense No. 6, failure to mitigate as to Lorenzo and Phillips, but denied as moot with
regard to Sims.
Conditions Precedent to Suit. Plaintiff further contends that they are entitled to
summary judgment on three of Defendant’s affirmative defenses related to conditions

precedent to suit: (i) administrative exhaustion (No. 7), (ii) beyond the scope of the
administrative charge or EEOC investigation (No. 20), and (iii) good faith efforts at
conciliation (No. 21). Plaintiff contends that “failure to investigate” is an improper
affirmative defense, that the requirements for conciliation have been met, and that details
of the conciliation process are confidential. Plaintiff further contends that the EEOC is

entitled to seek relief on behalf of Lorenzo and Phillips, even though they did not file a
charge of discrimination with the EEOC. Defendant contends Plaintiff failed to
administratively exhaust claims as to Lorenzo and Phillips, that the claims on their behalf
are outside the scope of the EEOC charge and investigation, and that the EEOC failed to
properly engage in conciliation. More specifically, Defendant asserts that EEOC, as part
of the conciliation process, was required to investigate alleged discrimination with regard

to Lorenzo and Phillips, but that Plaintiff’s investigative file contained no documents
related to Phillips and only one half-page of notes with regard to Lorenzo.
The undisputed facts as to this issue reflect that Sims filed a charge of discrimination
on September 7, 2018, alleging Defendant subjected him to unlawful harassment based on
his age (as well as constructive discharge), and that Defendant discriminated against other
employees, specifically District Managers, because of their age. See Docket Nos. 102, p.

9, ¶¶ 32-33; 109, pp. 9-10, ¶¶ 32-33. A “Determination” letter, dated April 14, 2021,
indicates that Sims alleged discrimination against himself and other older DMs based on
age discrimination, harassment, and a hostile work environment. Docket No. 109, Ex. 8.
On July 1, 2021, EEOC Area Director Holly Cole signed a “Notice of Conciliation
Failure,” stating that conciliation efforts had been unsuccessful and the EEOC was

forwarding the charge to the “legal unit for possible litigation.” Docket No. 102, Ex. 14.
The Supreme Court instructs in Mach Mining, LLC v. E.E.O.C., 575 U.S. 480 (2015)
that, in Title VII cases, courts “may review whether the EEOC satisfied its statutory
obligation to attempt conciliation before filing suit,” but that the scope of review is
“narrow” and allows for “expansive discretion.” Id. at 483, 489 (emphasis added)

(“recognizing the EEOC's extensive discretion to determine the kind and amount of
communication with an employer appropriate in any given case.”). Indeed, the Supreme
Court refers to this as a “relatively barebones review,” id. at 494, requiring that “the EEOC
afford the employer a chance to discuss and rectify a specified discriminatory practice—
but goes no further.” Id. at 489. “That means the EEOC must[: (1)] 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,” and [(2)] “engage the
employer in some form of discussion (whether written or oral), so as to give the employer
an opportunity to remedy the allegedly discriminatory practice.” Id. at 494. Conciliation
“need not involve any specific steps or measures,” and the EEOC has “discretion over the
pace and duration of conciliation efforts.” Id. at 492. Thus, “[j]udicial review of those
requirements (and nothing else) ensures that the Commission complies with the statute.”

Id. at 494; see also Equal Emp. Opportunity Comm’n v. Tepro, Inc., 2015 WL 12658237,
at *3 (E.D. Tenn. Oct. 21, 2015) (“[T]his Court clearly cannot review the content of the
EEOC's conciliation efforts – that is, the members of the conciliation class or the amount
of money demanded for those class members – or the manner in which EEOC chooses to
attempt conciliation.”).

Under the ADEA, although “the EEOC is not formally tasked with investigating
ADEA claims, the EEOC must necessarily investigate in order to engage in conciliation,
conference, and persuasion.” Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1311
(10th Cir. 2005), abrogated on other grounds by Lincoln v. BNSF Ry. Co., 900 F.3d 1166
(10th Cir. 2018), (citing Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977)

(“[T]he EEOC . . . is a federal administrative agency charged with . . . investigating claims
of employment discrimination and settling disputes, if possible, in an informal,
noncoercive fashion.”). Because “[a]n ADEA investigation is only required for
conciliation, the actual prerequisite to suit[,]” an alleged failure to investigate is not an
affirmative defense. Equal Emp. Opportunity Comm’n v. New Mexico, Dept. of Corr.,
2018 WL 1569257, at *4 & n.8 (D.N.M. Mar. 27, 2018) (“This Court also notes that even

under Title VII, it is not clear an EEOC investigation is subject to judicial review.”) (citing
Shikles, 426 F.3d at 1311).
Importantly, “the point of conciliation is to resolve discrimination claims informally
through voluntary compliance, not to set up a defense for later.” Equal Emp. Opportunity
Comm’n v. W. Distrib. Co., 218 F. Supp. 3d 1231, 1242 (D. Colo. 2016) (citing Occidental,
432 U.S. at 367-368). As such, “EEOC is not required to discover or identify each class

member prior to conciliation or litigation.” EEOC v. New Mexico, Dept. of Corr., 2018
WL 1569257, at *4. Accordingly, any failure to identify Lorenzo and Phillips prior to
conciliation is irrelevant as long as Defendant was put on notice of “what the employer has
done and which employees (or what class of employees) have suffered as a result.” Mach
Mining, 575 U.S. at 494 (emphasis added).

Even a sworn affidavit stating that these obligations have been met is sufficient for
the conciliation requirement, unless “the employer provides credible evidence of its own,
in the form of an affidavit or otherwise, indicating that the EEOC did not provide the
requisite information about the charge or attempt to engage in a discussion about
conciliating the claim.” Id. at 495. In that case, the Court may “conduct the factfinding

necessary to decide that limited dispute.” Id. However, “[b]ecause the remedy to
inadequate conciliation is an order staying the case and requiring the parties to conciliate,
failure to conciliate is not an affirmative defense.” Equal Emp. Opportunity Comm'n v.
Darden Restaurants, Inc., 2016 WL 9488709, at *3 (S.D. Fla. June 1, 2016) (“To qualify
as an affirmative defense, the defense must raise facts which will limit or defeat plaintiff's
ability to recover.”) (citing E.E.O.C v. Blinded Veterans Ass’n, 128 F.Supp.3d 33, 42

(D.D.C. 2015) (citing Mach Mining, 575 U.S. at 495)). Accordingly, Plaintiff is entitled
to summary judgment on Defendant’s Affirmative Defenses 7, 20, and 21. See Docket No.
15, pp. 8, 10.
VI. RELATED MOTIONS

The parties have also filed additional motions with regard to the evidence supporting
and/or opposing Plaintiff’s motion for partial summary judgment. Plaintiff moves to strike
certain confidential exhibits to Defendant’s Response to Plaintiff’s Motion for Partial
Summary Judgment [Docket No. 117], and Defendant moves for leave to Supplement
Evidence in Response to EEOC’s Partial Motion for Summary Judgment [Docket No. 122].
Defendant’s Response to Plaintiff’s partial summary judgment motion contains
three exhibits to which Plaintiff objects: (i) a March 10, 2021 letter from EEOC

Investigator Michael Talton to a Dollar General representative regarding conciliation
(labelled “CONFIDENTIAL – FOR CONCILATION PURPOSES ONLY”), see Docket
No. 109, Ex. 7 (“Ex. G”); (ii) a June 8, 2021 “Conciliation Regulation Disclosure
Compliance Form,” id, Ex. 9 (“Ex. I”); and (iii) a March 19, 2021 letter from Dollar
General’s senior employment attorney to Talton responding to the March 10 letter, id, Ex.

11 (“Ex. K”). Plaintiff contends all three of these documents should be stricken because
documents related to conciliation are confidential and cannot be disclosed without the
consent of all parties. Defendant contends Plaintiff’s motion to strike is improper and the
objections should have been included in the Reply brief, and further asserts that no
authority prohibits disclosure of conciliation materials in an ADEA suit as Title VII
language is irrelevant in this context.

The Court finds the documents should be stricken. As discussed above, failure to
conciliate is not an affirmative defense, and documents related to conciliation are therefore
irrelevant. Moreover, the conciliation process is designed to be confidential, and failure to
protect that process “undermine[s] the conciliation process itself, because confidentiality
promotes candor in discussions and thereby enhances the prospects for agreement.” Mach
Mining, 575 U.S. at 493; see also EEOC v. W. Distrib. Co., 218 F. Supp. 3d at 1241

(Attachments “consist primarily of the back and forth related to the conciliation process:
the precise materials the Mach Mining court reminded courts were confidential. . . . I
therefore agree with the EEOC that those materials . . . should be stricken.”). Cf. Equal
Emp. Opportunity Comm'n v. New Mexico, Corr. Dept., 2016 WL 9777238, at *6 (D.N.M.
Sept. 30, 2016) (In this ADEA case, “discovery regarding the ‘statements made or positions

taken’ during conciliation is, after Mach Mining, LLC, simply not relevant or proportional
to the needs of the case.”). Accordingly, Plaintiff’s Motion to Strike Confidential Exhibits
to Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment [Docket No.
117] is hereby GRANTED and Exhibits G, I, and K, see Docket No. 109, Exs. 7, 9, 11, are
hereby STRICKEN. To protect the confidentiality of the documents and avoid further

undermining the conciliation process, online access to ECF Docket 109, Exs. 7, 9, and 11
will be restricted to the Court and the current attorneys in this case.
Defendant moves to supplement its response with excerpts from the deposition of
EEOC employee Holly Cole. Defendant notes that the excerpts are submitted in support
of the three relevant affirmative defenses related to the conciliation process. As the Court
finds Plaintiff is entitled to summary judgment on these affirmative defenses in light of

Mach Mining, Defendant’s Motion for Leave to Supplement Evidence in Response to
EEOC’s Partial Motion for Summary Judgment [122] is DENIED as MOOT.
VII. CONCLUSION
In sum:
1. Defendant’s Memorandum in Support of Motion for Summary Judgment
[Docket No. 100] is hereby GRANTED IN PART and DENIED IN PART.

Defendant is entitled to summary judgment on Count II, the constructive
discharge claim as to Sims, and Plaintiff’s request for emotional distress and
punitive damages pursuant to Count IV (retaliation), but is not entitled to
summary judgment on the three remaining claims, Counts I (harassment), III
(discharge), and IV (retaliation). Furthermore, Defendant is not entitled to

summary judgment on its Affirmative Defense No. 8 (Farragher/Ellerth
affirmative defense).
2. Plaintiff EEOC’s Motion for Partial Summary Judgment with Brief in Support
[Docket No. 102] is hereby DENIED AS MOOT as to Affirmative Defense 6
(Sims ONLY), and otherwise GRANTED, as to Affirmative Defenses 6 (Phillips

and Lorenzo), 7, 20, and 21.
3. Plaintiff’s Motion to Strike Confidential Exhibits to Defendant’s Response to
Plaintiff’s Motion for Partial Summary Judgment [Docket No. 117] is hereby
GRANTED. Exhibits 7, 9, and 11 attached to Docket No. 109 are hereby
STRICKEN. To protect the confidentiality of the documents and avoid further
undermining the conciliation process, online access to ECF Docket 109, Exs. 7,

9, and 11 will be restricted to the Court and the current attorneys in this case.
4. Finally, Defendant’s Motion for Leave to Supplement Evidence in Response to
EEOC’s Partial Motion for Summary Judgment [Docket No. 122] is DENIED
as MOOT.
IT IS SO ORDERED this 2nd day of February, 2024.

_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385918. Public record. Not legal advice.