                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 U.S. EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION,
             Plaintiff
                                                          Civil Action No. 18-2227 (CKK)
        v.
 SOL MEXICAN GRILL, LLC, et al.,
             Defendants


                                 MEMORANDUM OPINION
                                   (November 12, 2019)

       Plaintiff, the United States Equal Employment Opportunity Commission (“EEOC”),

brings this suit against Defendants, Sol Mexican Grill LLC and Sol Mexican Grill II LLC,

pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991.

The EEOC brings claims of unlawful employment practices on the basis of sex and retaliation on

behalf of Claimant Johanna Cruz-Gomez, Claimant Glenda Leiva, and a class of similarly

situated female employees. On June 13, 2019, in the midst of discovery, the EEOC filed an

Amended Complaint removing claims which pertained to another individual claimant. Following

the Amended Complaint, Defendants filed a partial Motion to Dismiss. In their Motion,

Defendants argue that the claims brought on behalf of Claimant Leiva and a class of similarly

situated female employees should be dismissed because the EEOC has not complied with class

action requirements and because those claimants did not exhaust their administrative remedies.

Defendants further argue that any claims against Sol Mexican Grill II should be dismissed

because Sol Mexican Grill II was not named in Claimant Cruz-Gomez’s originating charge of

discrimination.




                                                 1
       Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a

whole, the Court will DENY Defendants’ [35] partial Motion to Dismiss. Because the EEOC’s

claims are not brought by a private litigant, the EEOC was not required to comply with class

action requirements and the claimants on behalf of whom the EEOC brings claims were not

required to exhaust their administrative remedies. Additionally, even though Sol Mexican Grill II

was not included by name in the originating charge of discrimination, it remains a proper

Defendant because it had notice of the EEOC proceedings, an opportunity to participate in

conciliation, and an identity of interest with the named party.

       In resolving Defendants’ partial Motion to Dismiss, the Court must also resolve two

derivative motions. First, upon consideration of the pleadings,2 the relevant legal authorities, and

the record as a whole, the Court will DENY the EEOC’s [38] Motion for Leave to File a Sur-

Reply. The arguments in the EEOC’s Sur-Reply are not necessary to the Court’s resolution of

Defendants’ partial Motion to Dismiss, and the EEOC faces no prejudice from a denial. Second,




1
  The Court’s consideration has focused on the following documents:
    • Defs.’ Partial Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 35;
    • EEOC’s Mem. of Points and Authorities in Opp’n to Defs.’ Partial Mot. to Dismiss
        (“Pl.’s Opp’n”), ECF No. 36; and
    • Defs.’ Reply to the Opp’n of the EEOC to their Mot. for Partial Dismissal (“Defs.’
        Reply”), ECF No. 37.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
  The Court’s consideration has focused on the following documents:
    • EEOC’s Mot. for Leave to File a Sur-Reply to Defs.’ Reply to EEOC’s Opp’n to Defs.’
        Partial Mot. to Dismiss (“Pl.’s Mot. for Sur-Reply”), ECF No. 38;
    • Defs.’ Mem. of Point and Authorities in Opp’n of the Pl.’s Mot. to File a Sur-Reply
        (“Defs.’ Opp’n to Pl.’s Sur-Reply”), ECF No. 40; and
    • EEOC’s Omnibus Reply in further Support of its Mot. for Leave to File a Sur-Reply,
        Mot. to Strike, and Mot. to Seal (“Pl.’s Omnibus Reply”), ECF No. 42.


                                                 2
upon consideration of the pleadings,3 the relevant legal authorities, and the record as a whole, the

Court will GRANT the EEOC’s [39] Motion to Strike and to Seal certain portions of

Defendants’ Reply in support of its partial Motion to Dismiss. The Court finds that Defendants’

Reply and attached exhibit contain improper evidence of what was said and done during the

EEOC’s conciliation with Defendants. By statute, such information cannot be used as evidence

in this lawsuit.

                                        I. BACKGROUND

         For the purposes of a Motion to Dismiss, the Court accepts as true the well-pled

allegations in the EEOC’s Amended Complaint. The Court does “not accept as true, however,

the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls

Corp. v. Comm. on Foreign Inv. in the United States, 758 F.3d 296, 315 (D.C. Cir. 2014).

         The EEOC alleges that Claimant Cruz-Gomez filed a charge of discrimination with the

EEOC based on sex discrimination and retaliation. Am. Compl., ECF No. 34, ¶ 9. On July 3,

2018, the EEOC issued to Defendants a Letter of Determination finding reasonable cause to

believe that Defendants violated Title VII by subjecting Claimant Cruz-Gomez and a class of

similarly situated female employees to sex discrimination and retaliation. The letter invited



3
    The Court’s consideration has focused on the following documents:
      • EEOC’s Mot. to Strike Portions of Defs.’ Reply (ECF, No. 37) and Exhibit 1 of the Reply
         (ECF, No. 37-1) in its Entirety and to Bar any Future Submission of Anything Said or
         Done During Conciliation and EEOC’s Mot. to Seal (“Pl.’s Mot. to Seal and Strike”),
         ECF No. 39;
      • Defs.’ Mem. of Points and Authorities in Opp’n to the EEOC’s Mot. to Strike Portions of
         Defs.’ Reply, their Exhibit 1 in its Entirety, to Bar any Future Submissions of Anything
         Said or Done During Conciliation and Mot. to Seal (“Defs.’ Opp’n to Pl.’s Mot. to Seal
         and Strike”), ECF No. 41; and
      • EEOC’s Omnibus Reply in further Support of its Mot. for Leave to File a Sur-Reply,
         Mot. to Strike, and Mot. to Seal (“Pl.’s Omnibus Reply”), ECF No. 42.


                                                 3
Defendants to engage in informal conciliation with the EEOC to eliminate voluntarily the

violations and to provide appropriate relief. Id. at ¶ 10. The EEOC then alleges that it engaged in

communications with Defendants in an attempt to voluntarily remedy the violations, but the

EEOC was unable to secure a conciliation agreement. Id. at ¶¶ 11-12. On July 23, 2018, the

EEOC issued to Defendants a Notice of Failure of Conciliation. Id. at ¶ 13. And, on September

26, 2018, the EEOC filed this lawsuit.

       As evidence of sex discrimination and retaliation, the Amended Complaint includes

allegations involving Claimant Cruz-Gomez. The EEOC alleges that Claimant Cruz-Gomez was

hired as a food preparer at Defendants’ H Street restaurant, owned by Sol Mexican Grill, in April

2016. Id. at ¶ 15. Claimant Cruz-Gomez was supervised by Manager Maycol Salina. Id. at ¶ 16.

The EEOC alleges that shortly after she was hired and continuing through her termination in

June 2017, Claimant Cruz-Gomez was subject to harassment due to her sex. Id. at ¶ 17. This

harassment included sexual comments, unwelcome touching, as well as retaliation when

Claimant Cruz-Gomez complained about the harassment. Id.

       The Amended Complaint also includes allegations involving Claimant Leiva. Claimant

Leiva was also hired as a food preparer at the H Street restaurant, owned by Sol Mexican Grill,

and was supervised by Manager Salina. Id. at ¶¶ 18-19. The EEOC alleges that from

approximately September 2016 through April 2017, Defendants subjected Claimant Leiva to

harassment due to her sex. Id. at ¶ 17. This harassment included sexual comments and

unwelcome touching as well as retaliation for complaining about the harassment. Id. The EEOC

alleges that Claimant Leiva was transferred from the H Street location in April 2017 and was

ultimately terminated in May 2017. In November 2017, Claimant Leiva was hired at Defendants’

George Washington University restaurant, owned by Sol Mexican Grill II. Id. The EEOC claims



                                                 4
that when Claimant Leiva reported the harassment which had previously occurred at the H Street

restaurant, her hours at the George Washington University restaurant were reduced and she was

ultimately terminated. Id.

                                     II. LEGAL STANDARD

       In their partial Motion to Dismiss, Defendants cite the standard for dismissal under both

Federal Rules of Civil Procedure 12(b)(1), for lack of jurisdiction, and 12(b)(6), for failure to

state a claim for which relief may be granted. However, Defendants fail to specify which of their

arguments relate to this Court’s jurisdiction to consider the EEOC’s Amended Complaint.

Lacking specificity from Defendants, the Court assumes that Defendants intended to challenge

the Court’s jurisdiction based on an alleged failure to exhaust the EEOC charge of discrimination

filing requirements. Specifically, in their Motion, Defendants argue that Claimant Cruz-Gomez’s

charge of discrimination failed to include “similarly situated female employees,” claims

pertaining to Claimant Leiva, and any charges against Sol Mexican Grill II. As such, Defendants

contend that the EEOC’s claims relating to similarly situated female employees, Claimant Leiva,

and Sol Mexican Grill II should be dismissed for failure to exhaust.

       However, Defendants’ claims pertaining to administrative exhaustion do not go to the

Court’s jurisdiction to hear the EEOC’s Amended Complaint. Defendants’ arguments for

dismissal are based largely on the EEOC charge filing requirements for private litigants. Even

assuming, for purposes of deciding the standard of review, that these requirements apply to the

EEOC, any failure to comply with charge filing or investigation requirements would not relate to

this Court’s jurisdiction. As the United States Supreme Court has explained, courts should be

reluctant to place jurisdictional limitations on statutory requirements that do not refer to

jurisdiction. See Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843, 1849-50 (2019). And,



                                                  5
Defendants cite no references to this Court’s jurisdiction in the charge filing and investigation

requirements. Relatedly, courts have regularly held that requirements relating to charge filing

and processing are not jurisdictional in nature. See Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 393-94 (1982) (finding that the statutory time limit for filing a charge with the EEOC is not

jurisdictional); Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006) (finding that the

“employer” requirement of Title VII is not jurisdictional); Fort Bend, 139 S. Ct. at 1850 (finding

the Title VII charge filing requirement to be not jurisdictional).

        In their Reply in support of their partial Motion to Dismiss, Defendants fail to address the

EEOC’s argument that Defendants’ Motion does not raise jurisdictional arguments and should be

evaluated pursuant to only Rule 12(b)(6). Based on the Court’s above reasoning, as well as

Defendants’ apparent concession, the Court concludes that Defendants do not raise jurisdictional

arguments and that Defendants’ arguments in support of dismissal should be analyzed pursuant

to Rule 12(b)(6).

        According to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that

it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]

complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.




                                                    6
                                         III. DISCUSSION

        The Court begins by addressing two preliminary issues. First, the Court will address

Plaintiff’s Motion for Leave to File a Sur-Reply. Second, the Court will address whether or not

Defendants’ partial Motion to Dismiss is procedurally proper. After addressing these initial

issues, the Court will go on to address the merits of Defendants’ partial Motion to Dismiss. In

addressing the merits of Defendants’ partial Motion to Dismiss, the Court will also resolve the

EEOC’s Motion to Seal and Strike portions of Defendants’ Reply in support of its partial Motion

to Dismiss.

A. The EEOC’s Motion for Leave to File a Sur-Reply

        As an initial issue, the Court has considered the EEOC’s Motion for Leave to File a Sur-

Reply to Defendants’ Reply to EEOC’s Opposition to Defendants’ Partial Motion to Dismiss.

ECF No. 38. In its Motion, the EEOC explains that the Sur-Reply is necessary in order to

respond to three new arguments which Defendants allegedly raised for the first time in their

Reply in support of their partial Motion to Dismiss. “Surreplies are generally disfavored.” Hall v.

U.S. Dep’t of Labor, No. 18-5100, 2018 WL 5919255, at *1 (Nov. 1, 2018 D.C. Cir.). Whether or

not to grant leave to file a Sur-Reply is left to the discretion of the district court. Banner Health v.

Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012). A court considers “whether the movant's reply

in fact raises arguments or issues for the first time, whether the nonmovant's proposed surreply

would be helpful to the resolution of the pending motion, and whether the movant would be

unduly prejudiced were leave to be granted.” Id.

        Here, the court need not decide whether or not Defendants’ Reply in fact raises new

arguments. Instead, the Court finds that the EEOC’s proposed Sur-Reply would not be helpful to

the Court’s resolution of the pending partial Motion to Dismiss. Without the assistance of a Sur-



                                                   7
Reply, the merits of any potentially new arguments raised in Defendants’ Reply and addressed in

the EEOC’s Sur-Reply are evident to the Court. Additionally, the Court finds that the EEOC is

not unduly prejudiced by the Court’s refusal to grant leave to file a Sur-Reply. Even without

relying on the arguments raised in the EEOC’s proposed Sur-Reply, the Court denies Defendants’

partial Motion to Dismiss. For these reasons, the Court DENIES the EEOC’s [38] Motion for

Leave to File a Sur-Reply.

B. Timing of Defendants’ Partial Motion to Dismiss

       As a second initial issue, the Court addresses the EEOC’s argument that Defendants’

partial Motion to Dismiss the Amended Complaint is procedurally improper. In the Amended

Complaint, the EEOC only removed from the original Complaint the claims of one claimant. As

such, the EEOC contends that Defendants could have, and should have, made their arguments in

favor of dismissal in response to the EEOC’s initial Complaint, rather than waiting for the

Amended Complaint. By raising arguments for dismissal that could have been raised in response

to the initial Complaint, the EEOC contends that Defendants’ partial Motion to Dismiss the

Amended Complaint is procedurally improper and should be denied.

       Pursuant to Federal Rule of Civil Procedure 12(b), a motion asserting Defendants’

arguments “must be made before pleading if a responsive pleading is allowed.” However, as the

EEOC acknowledges, this Rule is complicated by the filing of the Amended Complaint. An

argument in favor of dismissal for failure to state a claim upon which relief can be granted may

be raised “in any pleading allowed or ordered under Rule 7(a).” Fed. R. Civ. P. 12(h)(2)(A). One

such pleading allowed under Rule 7(a) is “an answer to a complaint.” Fed. R. Civ. P. 7(a)(2).

Here, Defendants responded to the EEOC’s Original Complaint with an Answer asserting the

defense that “[t]he complaint fails to state a claim upon which relief can be granted.” Answer,



                                                8
ECF No. 8. And, Defendants responded to the Amended Complaint with a partial Motion to

Dismiss. ECF No. 35. It is not clear to the Court that such a motion is procedurally improper, and

the EEOC cites no caselaw from within this Circuit holding such a response to be procedurally

improper.

       However, the Court need not resolve this procedural dispute. Regardless of whether or

not proper procedures were followed in filing this Motion, Defendants present no argument

which supports the dismissal of any claims in the EEOC’s Amended Complaint. Accordingly, for

purposes of this Memorandum Opinion, the Court assumes without deciding that Defendants’

Motion is procedurally proper.

C. Dismissal of the Class of Similarly Situated Female Employees and Claimant Leiva

       Defendants contend that the Court should dismiss the EEOC’s claims against “a class of

similarly situated female employees.” Defendants have two arguments as to why the Court

should dismiss these claims. First, Defendants argue that such claims constitute improper class

action claims. According to Defendants, the EEOC voluntarily abandoned any class action

claims and has also failed to comply with Federal Rule of Civil Procedure 23, and the companion

local rule, on class action requirements. Second, Defendants also contend that claims on behalf

of similarly situated employees have not been administratively exhausted because Claimant

Cruz-Gomez did not include such a class in her charge of discrimination before the EEOC. On

this ground, Defendants also object to any claims on behalf of Claimant Leiva. According to

Defendants, Claimant Leiva never sought to exhaust her administrative remedies by filing a

charge of discrimination with the EEOC. And, Claimant Leiva’s claims are not sufficiently

similar to Claimant Cruz-Gomez’s claims to be exhausted by Claim Cruz-Gomez’s charge. The

Court is persuaded by neither argument.



                                                9
        First, Defendants argue that the EEOC’s claims asserted on behalf of a class of similarly

situated female employees should be dismissed as improper class action claims. However,

Defendants’ argument rests on the mistaken premise that the EEOC is acting as a private litigant.

A private litigant may bring Title VII discrimination claims only on his or her own behalf. If a

private litigant seeks relief on behalf of a group of similarly situated employees, the private

litigant must comply with Rule 23’s class action requirements. But, the EEOC is not a private

litigant.

        Pursuant to Title VII, the EEOC may seek relief on behalf of a group of individuals who

have been discriminated against. See Gen. Tel. of the Nw., Inc. v. EEOC, 446 U.S. 318, 324

(1980) (explaining that the EEOC may bring claims “securing relief for a group of aggrieved

individuals”). And, when the EEOC seeks relief on behalf of a group of aggrieved individuals,

the EEOC is not bound by the strictures of Rule 23. Id. (explaining that the EEOC’s ability to

bring claims on behalf of a group “is in no way dependent upon Rule 23”); Hartman v. Duffey,

19 F.3d 1459, 1468 (D.C. Cir. 1994) (“When the EEOC seeks classwide relief under Title VII on

behalf of individuals discriminated against by a private employer, the conditions of Rule 23 need

not be met in order to maintain the suit as a class action.”). Defendants fail to cite any case in

which the EEOC, when bringing claims on behalf of a group of individuals, was held to the

requirements of Rule 23. For this same reason, the EEOC did not abandon its claims on behalf of

a class of similarly situated female employees when it denied that it was seeking class

certification at the Initial Status Conference. Because Rule 23 does not apply to claims brought

by the EEOC, the Court will not dismiss the EEOC’s claims asserted on behalf of a class of

similarly situated female employees on this ground.




                                                 10
       Second, Defendants argue that the claims on behalf of a class of similarly situated female

employees and Claimant Leiva should be dismissed because these claims were not exhausted by

Claimant Cruz-Gomez’s charge of discrimination to the EEOC. Again, Defendants’ argument

rests on the mistaken premise that the EEOC is bound by the same restrictions as a private

litigant. While Defendants are correct that individuals cannot ordinarily bring Title VII

discrimination claims without first exhausting their administrative remedies, Defendants fail to

acknowledge that this suit is not brought by an individual. Instead, this suit is brought directly by

the EEOC, and Defendants cite no authority establishing that the EEOC is bound by the same

administrative exhaustion requirements as an individual litigant.

       Congress charged the EEOC with the mission of “prevent[ing] any person from engaging

in any unlawful employment practice.” 42 U.S.C. § 2000e-5(a). Pursuant to this mission, the

EEOC can bring civil enforcement actions against employers accused of discrimination. If an

employee makes of charge of discrimination to the EEOC, then the EEOC institutes an

investigation. 42 U.S.C. § 2000e-5(b). While the initiation of the investigation is based on the

employee’s charge of discrimination, the EEOC is not limited in its investigation by the

allegations in the charge. Instead, “[a]ny violations that the EEOC ascertains in the course of a

reasonable investigation of the charging party’s complaint are actionable.” Gen. Tel., 446 U.S. at

331. The “original charge is sufficient to support action by the EEOC as well as a civil suit under

the Act for any discrimination stated in the charge itself or developed in the course of a

reasonable investigation of the charge.” EEOC v. Gen. Elec., Co., 532 F.2d 359, 366 (1976).

       Here, the EEOC initiated an investigation of Defendants based on Claimant Cruz-

Gomez’s charge of discrimination. During the investigation of Claimant Cruz-Gomez’s claims,

the EEOC uncovered alleged evidence of sexual harassment and retaliation against a class of



                                                 11
similarly situated females, including Claimant Leiva. Nowhere do Defendants allege that the

EEOC’s investigation was unreasonable in scope. Following the investigation, the EEOC “issued

to Defendants a Letter of Determination finding reasonable cause to believe that it violated Title

VII by subjecting Cruz-Gomez and a class of similarly situated female employees, to harassment

based on their sex and retaliation.” Am. Compl., ECF No. 34, ¶ 10. Because the EEOC allegedly

uncovered evidence of wide-spread harassment and retaliation while investigating Claimant

Cruz-Gomez’s charge, the EEOC is permitted to bring claims on behalf of those affected,

regardless of whether or not those affected would be prohibited from bringing their own Title VII

claims due to a failure to exhaust. See EEOC v. Kronos Inc., 620 F.3d 287, 297 (3d Cir. 2010)

(“Once the EEOC begins an investigation, it is not required to ignore facts that support additional

claims of discrimination if it uncovers such evidence during the course of a reasonable

investigation of the charge.”); Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1205 (9th

Cir. 2016) (explaining that “an EEOC civil suit may allege any discrimination stated in the

charge itself or discovered in the course of a reasonable investigation of that charge” (internal

quotation marks omitted)). Accordingly, the Court will not dismiss the EEOC’s claims on behalf

of a class of similarly situated female employees and Claimant Leiva due to their failures to file

independent charges of discrimination.

       In a final attempt to obtain a dismissal of these claims, in their Reply, Defendants contend

that “the EEOC is pursuing claims that it knows are not viable.” Defs.’ Reply, ECF No. 37, 5.

According to Defendants, the EEOC knows that there are no similarly situated female employees

who have been subject to discrimination or retaliation. Specifically, Defendants argue that,

because Claimants Cruz-Gomez and Leiva were allegedly subject to discrimination by Manager

Salinas, who has been fired, no other similarly situated female employees will emerge.



                                                 12
         The Court is unpersuaded by Defendants’ argument. Defendants provide no support for

their argument that the EEOC knows that its claims are invalid. Instead, Defendants appear to

attack the EEOC’s claims based on Defendants’ subjective estimation of the EEOC’s evidence.

However, this style of attack is not useful in resolving Defendants’ partial Motion to Dismiss.

Based on a reasonable investigation, the EEOC has made plausible allegations that similarly

situated female employees faced sex discrimination and retaliation in Defendants’ restaurants. In

the face of plausible allegations, it is not for Defendants to argue that the EEOC knows its claims

will ultimately fail. Instead, based on the plausible allegations in the Amended Complaint, the

EEOC is entitled to discovery in order to obtain evidence that similarly situated female

employees faced discrimination and retaliation. If discovery does not produce sufficient evidence

to support the EEOC’s claims, then Defendants may move for summary judgment on those

claims if appropriate.

         For the reasons provided above, the Court DENIES Defendants’ Motion to dismiss the

EEOC’s claims brought on behalf of a similarly situated class of female employees and Claimant

Leiva.

D. Dismissal of Sol Mexican Grill II

         Defendants further argue that claims against Sol Mexican Grill II must be dismissed

because those claims have not been administratively exhausted as Claimant Cruz-Gomez’s

EEOC charge did not include Sol Mexican Grill II. Defendants are correct that Claimant Cruz-

Gomez’s EEOC charge did not expressly name Sol Mexican Grill II. However, the omission in

Ms. Cruz-Gomez’s charge does not prevent the EEOC from bringing claims against Sol Mexican

Grill II.




                                                13
       As was previously explained, an EEOC charge is simply a starting point for the EEOC’s

investigation, which is not restricted by the claims brought in the EEOC charge. The EEOC’s

flexibility in investigating charges extends to the naming of the employer. While Title VII allows

for suit against a party named in an EEOC charge, the naming requirement “was never intended

to be rigid, but rather is an integral part of Congress’ remedial scheme that insures that parties

receive adequate notice and the opportunity to participate in conciliation proceedings before the

EEOC.” McManus v. Washington Gas Light Co., No. Civ. A. 90-3169, 1991 WL 222345, at *5

(D.D.C. Oct. 15, 1991). Accordingly, there are exceptions to the requirement that a party against

whom a Title VII suit is brought be named in the EEOC charge. As this Court has previously

explained, “[c]ourts have found that a plaintiff can proceed against a party not named in an

EEOC charge when ‘they have been given actual notice of the EEOC proceeding or have an

identity of interest with the party or parties sued before the EEOC.’ E.E.O.C. v. Metzger, 824 F.

Supp. 1, 4 (D.D.C. 1993) (emphasis added) (citing Eggleston v. Chicago Journeymen Plumbers'

Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir. 1981)). It is also important that the

unnamed party be ‘given the opportunity to participate in conciliation proceedings aimed at

voluntary compliance.’ Eggleston, 657 F.2d at 905.” Hammel v. Marsh USA Inc., 79 F. Supp. 3d

234, 244 (D.D.C. 2015).

       First, the Court finds that the EEOC has adequately alleged that Sol Mexican Grill II had

notice of the EEOC proceeding and an opportunity to participate in conciliation. The EEOC

served Claimant Cruz-Gomez’s charge by sending the charge to 1251 H Street, NE. This address

is the address of the registered agent for both Sol Mexican Grill and Sol Mexican Grill II. Ex. 1,




                                                 14
ECF No. 36-1.4 In the Amended Complaint, the EEOC alleges that it issued “to Defendants” a

Letter of Determination finding reasonable cause to believe that Claimant Cruz-Gomez and a

class of similarly situated employees had been subjected to harassment and retaliation. Am.

Compl., ECF No. 34, ¶ 10. The letter further “invited Defendants to join with the Commission”

in informal conciliation. Id. The EEOC states that it engaged in communications with both

Defendants to provide the opportunity to remedy the discrimination, and when the parties were

unable to reach a conciliation agreement, the EEOC issued to both Defendants a Notice of

Failure of Conciliation. Id. at ¶¶ 10-13. Accordingly, the EEOC has adequately alleged that both

Defendants, including Sol Mexican Grill II, were aware of the EEOC proceeding and given an

opportunity to participate in conciliation.

       In their Reply in support of their partial Motion to Dismiss, Defendants dispute that they,

along with their counsel, engaged in conciliation discussions with the EEOC. As evidence that no

conciliation discussions occurred, Defendants attach to their Reply an email chain between

Defense counsel and an EEOC representative. Ex. 1, ECF No. 37-1. Defendants do not appear to

argue that the EEOC failed to attempt conciliation. Defendants acknowledge that “the EEOC

made an effort to engage in conciliation discussions with the defendants.” Defs.’ Opp’n to Pl.’s

Mot. to Strike and Seal, ECF No. 41, 5. However, Defendants contend that those conciliation

discussions never occurred and rely on the email chain as evidence that those discussions did not

occur. Conversely, the EEOC contends that conciliation discussions did take place and that the




4
  The Court can consider this attachment in deciding Defendants’ partial Motion to Dismiss
because the attachment contains the business registration information for Defendants which is a
matter of public record. See Covad Comm. V. Bell At. Corp., 407 F.3d 1220, 1222 (D.C. Cir.
2005) (explaining that, on a motion to dismiss, courts may take notice of facts on the public
record).

                                               15
email chain containing those discussions should be stricken from the record because the

information is statutorily protected.

       The Court begins by resolving the issue as to whether or not conciliation discussions

occurred. In the Amended Complaint, the EEOC alleges that on July 3, 2018, the EEOC issued to

both Defendants a Letter of Determination finding cause to believe that discrimination had

occurred. The letter invited Defendants to join the EEOC in conciliation “to endeavor to

eliminate the discriminatory practices and provide appropriate relief.” Am. Compl., ECF No. 34,

¶ 10. The EEOC then states that it “engaged in communications with Defendants to provide

Defendants the opportunity to remedy the discriminatory practices described in the Letter of

Determination.” Id. at ¶ 11. However, the EEOC explains that it “was unable to secure from

Defendants a conciliation agreement acceptable to the Commission” and so it issued a Notice of

Failure of Conciliation. Id. at ¶¶ 12-13.

       Based on these allegations, the Court finds that the EEOC met its statutory obligations to

conciliate with both Defendants. Pursuant to 42 U.S.C. § 2000e-5(b), when “the Commission

determine[d] after [its] investigation that there [was] reasonable cause to believe that the charge

is true,” the EEOC was obligated to “endeavor to eliminate any such alleged unlawful

employment practice by informal methods of conference, conciliation, and persuasion.” The

EEOC’s obligation to engage in conciliation is open-ended and flexible. Here, the EEOC

provided Defendants with a Letter of Determination finding reasonable cause to believe that

Claimant Cruz-Gomez and a class of similarly situated females had been harassed and retaliated

against by Defendants. The EEOC then engaged in communications with Defendants to attempt

to remedy voluntarily the violations described in the letter. Defendants cite no statute or caselaw

suggesting that more was required to qualify as conciliation.



                                                 16
       Moreover, the Court’s review as to the specifics of the conciliation process is

circumscribed. While “a reviewing court must ensure that the EEOC complied with statutory

conciliation requirements at least to the degree that it communicated to the employer that an

unlawful employment practice had been alleged and [that the EEOC had] engaged the employer

in some form of discussion,” the “court may not do a ‘deep dive into the conciliation process.’”

Ryskamp v. Comm'r of IRS, 797 F.3d 1142, 1149-50 (D.C. Cir. 2015) (quoting Mach Mining,

LLC, 135 S. Ct. 1645, 1653 (2015)). The Commission has “extensive discretion to determine the

kind and amount of communication with an employer appropriate in any given case.” Mach

Mining, LLC, 135 S. Ct. at 1649. Again, in this case, the EEOC communicated through a Letter

of Determination to Defendants that violations had been alleged and found to be believable. And,

the EEOC then attempted to resolve those violations through discussions, which ultimately

failed. As such, the EEOC has properly alleged that conciliation discussions took place with both

Defendants.

       Next, the Court must determine whether or not the emails attached to and included in

Defendants’ Reply are improper evidence of those conciliation discussions. Pursuant to statute,

“[n]othing said or done during and as part of such informal [conciliation] endeavors may be

made public … or used as evidence in a subsequent proceeding without the written consent of

the persons concerned.” 42 U.S.C. § 2000e-5(b). The prohibition on the use of conciliation

information applies to both the complainant the employer. Mach Mining, 135 S. Ct. at 1655.

Prohibiting the use of conciliation information promotes candor in discussions which, in turn,

increases the likelihood of voluntary resolution of violations. Id.

       Here, the Court concludes that the email chain attachment as well as certain information

referencing the email chain attachment in Defendants’ Reply was improper conciliation



                                                 17
evidence. In making this determination, the Court will not divulge the substance of the

conciliation discussions. However, on its review, the Court finds that the email chain between

Defense counsel and the EEOC revealed things “said or done during and as part of such informal

[conciliation] endeavors.” 42 U.S.C. § 2000e-5(b).

       Defendants concede that the discussions contained in the emails occurred after receiving

the Letter of Determination and Conciliation Agreement. However, Defendants insist that the

emails are not evidence of conciliation because Defendants rejected the EEOC’s offer of

conciliation. Defendants’ argument is misguided. After providing Defendants with notice of the

charges against them through the Letter of Determination and Conciliation Agreement, the

EEOC afforded Defendants an opportunity to voluntarily remedy the violations. Any discussions

pertaining to this opportunity for voluntary compliance are evidence of the conciliation which

occurred. The fact that the conciliation was ultimately unsuccessful and that Defendants declined

to engage in further discussions is not relevant to this analysis. The EEOC’s offer for Defendants

to voluntarily remedy the violations, and any discussions relating to that offer, including a

request for clarification or a refusal, constitute improper evidence of the conciliation endeavor.

       Finally, after determining that conciliation occurred and that Defendants’ Reply and email

exhibit contain improper evidence of that conciliation, the Court must decide how to remedy the

disclosure. Again, pursuant to statute, “[n]othing said or done during and as a part of such

informal [conciliation] endeavors may be made public … or used as evidence in a subsequent

proceeding without the written consent of the persons concerned.” 42 U.S.C. § 2000e-5(b). It is

undisputed that Defendants did not obtain the complainant’s consent prior to using the email

chain, containing conciliation discussions, as evidence in their Reply in support of their partial

Motion to Dismiss.



                                                 18
       The Court finds that Defendants violation of the disclosure prohibition in 42 U.S.C. §

2000e-5(b) shall result in such information being stricken from the pleadings and sealed so that it

is not accessible to the public. In Mach Mining, the United States Supreme Court explained that

by refusing to strike from the record descriptions of the conciliation process, the district court

had “failed to give effect to the law’s non-disclosure provision. And in so doing, the court

undermined the conciliation process itself, because confidentiality promotes candor in

discussions and thereby enhances the prospects for agreement.” 135 S. Ct. at 1655. In

determining that the conciliation evidence should have been stricken, the Court did not reference

Federal Rule of Civil Procedure 12(f), which relates to striking material from pleadings. Instead,

the material was stricken because it was protected by 42 U.S.C. § 2000e-5(b). See EEOC v.

Phase 2 Investments, Inc., No. JKB-17-2463, 2018 WL 826526, at *8 (D. Md. Feb. 12, 2018)

(explaining that a Fed. R. Civ. P. 12(f) analysis is not required for striking information protected

by 42 U.S.C. § 2000e-5(b)).

       Accordingly, because the Court has already determined that the information contained in

Defendants’ Reply in support of their partial Motion to Dismiss and in their email chain exhibit

is protected by 42 U.S.C. § 2000e-5(b), the Court GRANTS the EEOC’s Motion to Strike and

Seal. Specifically, the Court STRIKES Defendants’ Exhibit 1 to their Reply. ECF No. 37-1. The

Court further STRIKES from Defendants’ Reply the text contained under the heading “Alleged

Conciliation,” starting on page 2, line 18 with “The only communications,” and ending on page

3, line 3 just before the sentence beginning “There were never . . ..” The Court further STRIKES

the remaining portion of the sentence, starting on page 7, line 9, beginning with the word

“mentioning” (the offending portion begins on line 10) and the sentence starting on page 7, line

13 and ending on line 15 that starts with “As noted above” in its entirety. The Court further



                                                 19
ORDERS that Defendants’ Reply and Exhibit 1 remain SEALED so that the stricken information

is not publicly accessible.5 Finally, the Court ORDERS that Defendants not further submit

evidence of anything said or done during the conciliation process.

       The Court now returns to the issue of whether or not Sol Mexican Grill II should be

dismissed based on its omission from Claimant Cruz-Gomez’s charge of discrimination. In

addition to finding that Sol Mexican Grill II had notice of the charge and an opportunity to

participate in conciliation, the Court further finds that the EEOC has adequately alleged that

Defendants have a common identity of interest. In the Amended Complaint, the EEOC explains

that “Defendants operate as an integrated enterprise or single employer by virtue of their

common management, common ownership, interrelation of operations, and centralized control of

labor relations.” Am. Compl., ECF No. 34, ¶ 7. For example, Defendants share a common

business agent, Fernando Positgo, located at the same address. Ex. 1, ECF No. 36-1. Defendants

point out that Sol Mexican Grill and Sol Mexican Grill II have different physical addresses and

different dates of organization. However, it is not disputed that Sol Mexican Grill and Sol

Mexican Grill II are restaurants at different physical locations. Despite the different physical

addresses and dates of organization, the EEOC has still sufficiently alleged that Defendants have

a common identity of interest.

       As further evidence of Defendants’ common identity of interest, the EEOC alleges that

Claimant Leiva was originally employed at Defendants’ H Street restaurant, owned by Sol

Mexican Grill. Id. at ¶ 18. Claimant Leiva was later employed at Defendants’ George



5
 The Court notes that while Defendants do not agree that the Reply and the Exhibit contain
confidential conciliation information, Defendants “take no particular exception” to the Court
placing these documents under seal. Defs.’ Opp’n to Pl.’s Mot. to Strike and Seal, ECF No. 41, 6
n.3.

                                                 20
Washington University restaurant, owned by Sol Mexican Grill II. Id. at ¶ 20(i). While at the

George Washington University location, Claimant Leiva reported that she had been subjected to

discrimination while working for the H Street location, owned by Sol Mexican Grill. Id. at ¶

20(j). Shortly after making this report, the EEOC alleges that Claimant Leiva was retaliated

against at the George Washington University restaurant, owned by Sol Mexican Grill II. Id. at ¶

20(k)-(m). Based on the allegations that Sol Mexican Grill II retaliated against Claimant Leiva

for reporting harassment that occurred at a restaurant owned by Sol Mexican Grill, the Court

finds that the EEOC has alleged that Defendants have a common identity of interests.

       In a final attempt to obtain dismissal of the claims against Sol Mexican Grill II, in their

Reply, Defendants contend that “the EEOC knows that no viable claim exists as to Sol Mexican

Grill II.” Defs.’ Reply, ECF No. 37, 6. Specifically, Defendants attack the EEOC’s factual

allegations as they relate to Claimant Leiva. Defendants contend that Claimant Leiva was not

terminated from her position and that her hours were not reduced. As evidence, Defendants

attach pay records purporting to show the number of hours worked by Claimant Leiva. See Ex. 2,

ECF No. 37-2.

       Defendants’ argument is not of the type that the Court will consider at the Motion to

Dismiss stage. On a Motion to Dismiss, the Court must accept the allegations in the EEOC’s

Amended Complaint to be true. Ralls Corp., 758 F.3d at 315. The EEOC has alleged that

Claimant Leiva’s work hours were reduced, and that she was ultimately terminated, in retaliation

for reporting harassment. Am. Compl., ECF No. 34, ¶ 20(j)-(m). At this stage in the litigation,

the Court accepts these allegations to be true and cannot consider Defendants’ attached payroll

records which fall outside the four corners of the Amended Complaint. Defendants’ attempt to

use documentary evidence to overcome the EEOC’s allegations illustrates why Motions to



                                                21
Dismiss are typically heard prior to the parties engaging in discovery. At the Motion to Dismiss

stage, the Court is constrained by the four corners of the Amended Complaint.

       For the reasons provided above, the Court DENIES Defendants’ Motion to dismiss the

EEOC’s claims brought against Sol Mexican Grill II.

                                        IV. CONCLUSION

       For the foregoing reasons, the Court DENIES Defendants’ partial Motion to Dismiss.

Because the EEOC’s claims are not brought by a private litigant, the EEOC was not required to

comply with class action requirements and the claimants on behalf of whom the EEOC brings

claims were not required to exhaust their administrative remedies. Additionally, even though Sol

Mexican Grill II was not named in the originating charge of discrimination, it remains a proper

Defendant because it had notice of the EEOC proceedings, an opportunity to participate in

conciliation, and an identity of interest with the named party.

       The Court further DENIES the EEOC’s Motion for Leave to File a Sur-Reply. The

arguments in the EEOC’s Sur-Reply are not necessary to the Court’s resolution of Defendants’

partial Motion to Dismiss, and the EEOC faces no prejudice from a denial.

       Finally, the Court GRANTS the EEOC’s Motion to Strike and to Seal certain sections in

Defendants’ Reply in support of its partial Motion to Dismiss. The Court finds that Defendants’

Reply and attached exhibit contain improper evidence of what was said and done during the

EEOC’s conciliation with Defendants. By statute, such information cannot be used as evidence

in this lawsuit. Defendants’ Reply in Support of its partial Motion to Dismiss remains sealed at

this point. By DECEMBER 3, 2019, Defendants shall file a redacted version of the Reply

omitting the stricken portions relating to conciliation.




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An appropriate Order accompanies this Memorandum Opinion.

                                           /s/
                                        COLLEEN KOLLAR-KOTELLY
                                        United States District Judge




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