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Equal Employment Opportunity Commission v. United

April 5, 2012


The opinion of the court was delivered by: Judge Nora Barry Fischer



The Equal Employment Opportunity Commission ("EEOC") initiated this Americans with Disabilities Act action, as a potential class action, on behalf of charging party Abigail DeSimone ("DeSimone")*fn1 and all similarly situated employees of Defendant U.S. Steel ("U.S. Steel"). Pending before the Court is EEOC's Motion for Reconsideration (Docket No. 154) of this Court's Order adopting the Special Master's Supplemental Report and Recommendation, which addressed EEOC's submission of confidential conciliation documents to this Court, in violation of 42 U.S.C. § 2000e-5(b), and imposed sanctions against EEOC for such violations (Docket No. 118). EEOC argues that said Order should be reconsidered because U.S. Steel allegedly submitted an ex parte letter ("letter")*fn2 to the Special Master addressing the merits of the matters pending before her and thereby allegedly tainted both the Special Master's recommendations and this Court's Order adopting same. (Docket No. 155 at 1; Docket No. 163 at 4; Docket No. 194 at p. 30, lns. 12-25). Thus, EEOC seeks not only reconsideration of this Court's Order adopting the Special Master's Supplemental Report and Recommendation (Docket No. 118), but, in addition, recusal of the Special Master, suppression of the Special Master's reports (Docket Nos. 82 and 103) and sanctions against U.S. Steel. (Docket No. 155 at 15). U.S. Steel maintains that the letter is not an ex parte communication in violation of this Court's Order Appointing the Special Master. (Docket No. 159). The Motion has been fully briefed. The parties presented evidence and oral argument at a Motion Hearing on February 15, 2012. The Court ordered preparation of the Transcript of said Hearing. (Docket No. 185). It was filed of record on April 4, 2012.*fn3 (Docket No. 194). Upon consideration of all of the parties' submissions (Docket Nos. 154; 155; 156; 159; 163; 173; 190), the Transcript of the February 15, 2012 Hearing (Docket No. 194), and the Transcript of the March 17, 2011 Telephonic Status Conference (Docket No. 193), EEOC's Motions for Reconsideration, Recusal, to Suppress, and for Sanctions (Docket No. 154) are DENIED, with prejudice.


The litigation of this case has been lengthy and more than contentious as a result of the EEOC's filing of confidential conciliation documents in support of its opposition to U.S. Steel's Motion to Dismiss (Docket No. 23). As a consequence of EEOC's action, U.S. Steel filed a Motion for Expedited Relief on March 4, 2011, wherein it argued that it was procedurally improper for EEOC to attach proposed conciliation agreements and correspondence exchanged between the parties to its Response to Defendant U.S. Steel's Motion to Dismiss. (Docket No. 53). Less than a week later, on March 10, 2011, U.S. Steel filed a Motion to Seal wherein it requested that the Court seal EEOC's Response and Sur-reply to Defendant U.S. Steel's Motion for Expedited Relief arguing that EEOC's representations therein contain information that EEOC is prohibited from disclosing by statute, specifically, 42 U.S.C. § 2000e-5(b).*fn4 (Docket No. 64).*fn5

In considering same, this Court convened a Telephonic Status Conference on March 17, 2011. (Docket No. 67). During the conference, counsel for U.S. Steel suggested that the parties stipulate to the contents of the documents at issue and informed the Court that it would draft a proposed stipulation to share with EEOC. (Id.). In response to EEOC's counsel's question concerning the proposed stipulation, counsel for U.S. Steel set out its parameters:

Okay. The first question is can we stipulate that the documents that we described in our motion for expedited relief are, in fact, documents created in exchange during the conciliation process that led to his [sic] litigation. Secondly, that the pages that we asked to be stricken from the Commission's response to our motion to dismiss do, in fact, refer to conciliation documents.*fn6 (Docket No. 193 at p. 14, lns. 22-25; p. 15, lns. 1-4). The Court then directed EEOC to notify the Court as to whether a stipulation had been reached. (Id.). On March 21, 2011, EEOC filed its "Stipulation,"*fn7 wherein it stated that the parties had not reached an agreement on a stipulation. (Docket No. 68). Instead, EEOC asserted that the Court could rule on U.S. Steel's Motion for Expedited Relief without considering Exhibits 8 and 9. (Id.).

In light of the above circumstances and a decision of this Court, EEOC v. LifeCare Management Services, Inc., Civ. Act. No. 10-1358, 2009 WL 772834 (W.D.Pa. Mar. 17, 2009), wherein Judge McVerry found that he must recuse himself after viewing proposed conciliation agreements and correspondence exchanged between the parties, this Court entered an Order, with agreement of counsel, dated April 7, 2011, referring consideration of U.S. Steel's Motion for Expedited Relief and Motion to Seal to Special Master Sally Cimini, Esquire. (Docket No. 76).*fn8

The Order set forth the scope of the referral and, as required by Federal Rule of Civil Procedure 53(b), set forth the boundaries of any ex parte communications:

The Special Master shall be empowered to communicate on an ex parte basis with a party or the Court for purposes of seeking to maintain confidentiality and for routine scheduling or for other matters which do not concern the merits of Defendant U.S. Steel's Motion to Expedite Relief (Docket No. [53]) and Motion to Seal (Docket No. [64]). The Special Master may communicate with the Court ex parte in all matters as to which the Special Master has been empowered to act. (Docket No. 76 ¶ e). That same day, the parties participated in a telephone conference with the Special Master. (Docket No. 155 at 1; Docket No. 159 at 2).

There was no Court Reporter present at that conference.*fn9 (Docket No. 194 at p. 23, lns. 10-14). U.S. Steel asserts that during the conference, the Special Master asked the parties to describe the background of the dispute and the parties' positions. (Docket No. 159 at 2). EEOC contends that its counsel does not recall any substantive discussion with the Special Master concerning the background of the dispute and the parties' positions, nor does EEOC's counsel recall that the Special Master asked the parties to describe the contents of same. (Docket No. 163 at n. 2).
As the content of the conference was disputed and it was not transcribed, the Special Master was called to testify at the February 15, 2012 Hearing and Oral Argument. She testified credibly*fn10 regarding the discussion during the conference she convened. The Special Master advised that all four attorneys of record spoke (Docket No. 194 at p. 53, ln. 17) and that she asked them to describe the dispute, their contentions and the background of the case. (Id. at p. 50, lns. 12-15). She noted that the parties spoke at length about the conciliation documents and any references made to those documents. (Id. at p. 51, lns. 1-2). Each party took ten minutes to describe what had occurred and what the Special Master was to consider. (Id. at lns. 3-5). Counsel for EEOC informed the Special Master that it did not believe that it had violated the pertinent regulations and that U.S. Steel had waived the issue. (Id. at lns. 10-12). Alternatively, U.S. Steel's counsel argued that there was a clear violation and that it had not made any waiver. (Id. at lns. 18-20). The Special Master recalled that there was some discussion of the procedural history of the case and the parties referred to documents, which had been filed of record. (Id. at p. 52, lns. 14-18). From her view, the parties clearly stated their positions regarding the challenged conciliation documents and she believed that she understood the parties' arguments at that time. (Id. at p. 54, lns. 14-17). At the end of the call, she asked the attorneys to send her everything they wanted her to consider in conjunction with her report and recommendation to the Court and she set time frames for same. (Id. at p. 52, lns. 24-25; p. 53, ln. 1).

In addition, the Special Master testified that it was her practice to send a post-conference email summarizing discussion during her conference with counsel, immediately following a conference call. To this end, the conference commenced at 10:00 A.M. and she sent her follow-up email at 10:48 A.M. (Id. at p. 60, lns. 15-21). The email was sent to all four counsel of record for EEOC and U.S. Steel and states the following:

Thank you for attending the phone call this morning. As we discussed, to expedite matters, instead of issuing a formal order, I am confirming the dates we agreed to via this email. The following reflects my understanding of the items we have agreed upon:  April 11-The parties will provide me with hard copies of all pleadings and supporting documents that they would like me to review in connection with this matter, with the exception of the new matter to be submitted by U.S. Steel on April 13.

 April 13-U.S. Steel will submit an additional motion with supporting legal arguments concerning conciliation documents filed with the Court by the EEOC on or about March 25.

 April 25-EEOC will respond to the additional motion filed by U.S.

Steel on April 13.  If, due to the impending shutdown of federal government offices or the upcoming religious holidays, the parties need additional time to meet any of the aforementioned deadlines, please let me know and I will accommodate the parties. If we later determine it to be necessary, I will request that the Court extend the May 20, 2011 deadline to accommodate the parties.  Following my receipt and review of all the aforementioned documents, I will notify the parties whether I need to schedule ex parte conferences, a joint conference, or a date for oral argument.  In order to keep the cost of this matter down, I will communicate via email as much as possible and will provide the parties with advance notice of the topics to be discussed in any ex parte conference, joint conference or oral argument.

If my understanding of any of the above points is incorrect, please let me know. I look forward to working with all of you. Thank you for your cooperation.*fn11

(Docket No. 154-2).

Pursuant to the Special Master's instructions, EEOC, by letter dated April 8, 2011, "copied" to all counsel, forwarded copies of its relevant briefing papers to the Special Master. (Docket No. 154-3). Similarly, U.S. Steel drafted a cover letter, collected its relevant background materials and pleadings and submitted same to the Special Master and EEOC. (Docket No. 159 at 2). However, U.S. Steel did not copy EEOC on its cover letter. (Id.). EEOC acknowledges that it received a copy of U.S. Steel's supplemental submissions to the Special Master on April 13, 2011, but not the cover letter. (Docket No. 155 at 2). Interestingly, EEOC now admits that it did not send U.S. Steel, nor U.S. Steel's Co-Defendant, United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union ("Union"), a copy of its cover letter, despite the fact that its cover letter indicates that it was copied to all counsel. (Docket No. 194 at p. 28, lns. 4-10).

After additional briefing, the Special Master filed her Report and Recommendation on May 29, 2011 and her Supplemental Report and Recommendation on September 1, 2011. (Docket Nos. 82 and 103). Upon consideration and independent review of the record*fn12 de novo, particularly, the initial and supplemental Special Master's Reports and Recommendations, the objections and responses thereto, and case law and authority cited therein as well as this Court's independent research, this Court entered a Memorandum Order on September 30, 2011, in which it concluded that EEOC violated Section 2000e-5(b) and awarded U.S. Steel the opportunity to seek reasonable attorneys' fees and costs in addressing EEOC's misconduct. (Docket No. 118).

Presently, EEOC claims that it did not become aware of the challenged U.S. Steel letter until U.S. Steel submitted its billing records, in conjunction with its fee petition. (Docket No. 155 at 2). As EEOC's counsel did not recall receipt of said letter, its representatives searched its hard and electronic files, but were unable to locate the letter. (Id.). As a result, EEOC contacted the Special Master's office and requested a copy of the letter, which the Special Master's office assistant emailed to EEOC's counsel. (Id.). Upon review of said letter, EEOC determined that it had never received a copy of same. (Id.). Hence, it filed the instant Motion for Reconsideration on December 6, 2011. (Docket No. 154). The Court established a briefing schedule and scheduled Oral Argument. (Docket Nos. 167, 169 and 170). The Court also ordered the Special Master to file an Affidavit, addressing the assertions contained in EEOC's Motion for Reconsideration. (Docket No. 168).

Pursuant to this Court's January 3, 2012 Order, the Special Master filed her Affidavit on February 10, 2012. (Docket No. 182). Therein, she states that she does not recall reading or using either party's cover letter in formulating her Report and Recommendation. (Id.). The Court also took testimony of the Special Master and heard Oral Argument on EEOC's Motion for Reconsideration on February 15, 2012. (Docket No. 183). Then the Court directed the Special Master to search her files for any notes she took during her April 7, 2011 conference with the parties and for her bill regarding same. (Id.).

The next day, the Special Master emailed all parties and the Court, attaching her billing statement and stating that she could not locate her notes from the April 7, 2011 conference. The Special Master's billing record for the conference call records a total time of 1.2 hours, which includes her time spent preparing for and attending the call; a telephone call with the Court's then judicial clerk regarding the deadlines Order; as well as her time spent emailing the parties, as described above.*fn13 On February 21, 2012, EEOC filed its Response Regarding the Special Master's Notes and Billing Statement. (Docket No. 190). U.S. Steel filed no further briefing, but the Court did review U.S. Steel's billing records (Docket No. 148),*fn14 in conjunction with the pending Motion and in light of the evidence and argument advanced at the February 15, 2012 Hearing. The Court has also considered the transcript of that Hearing and the transcript of the March 17, 2011 proceedings, which touched on the dispute at hand.

This matter is now fully briefed and ripe for disposition. (Docket Nos. 155; 156; 159; 163; 173; 190). Accordingly, the Court now turns to its summary of the parties' arguments.



EEOC argues that U.S. Steel's April 11, 2011 letter to the Special Master (Docket No. 154-4) serves as evidence that U.S. Steel engaged in ex parte communication with the Special Master regarding the merits of U.S. Steel's Motion for Expedited Relief. (Docket No. 155 at 1). EEOC contends that the letter contains substantive argument and advocates U.S. Steel's position on the merits. (Docket No. 163 at 1). The letter also provides the Special Master with "skewed and inaccurate" background and history, according to EEOC. (Id. at 2). EEOC maintains that U.S. Steel submitted this communication to not only advocate its position, but to bias the Special Master. (Docket No. 155 at 1). As the letter concerns the merits of the case, EEOC asserts that the letter constitutes new evidence resulting in manifest injustice. (Docket No. 163 at 4; Docket No. 194 at p. 30, lns. 12-25). Accordingly, EEOC seeks reconsideration of this Court's Order adopting the Special Master's Supplemental Report and Recommendation, recusal of the Special Master, suppression of the Special Master's reports and sanctions against U.S. Steel. (Docket No. 155 at 15).

B. U.S. Steel

U.S. Steel counters that the letter was merely a cover letter explaining the materials that U.S. Steel was forwarding to the Special Master at her request and contains no substantive legal argument. (Docket No. 159 at 1). It contends that the letter had no bearing on the issue before the Special Master, i.e., whether EEOC violated 42 U.S.C. § 2000e-5(b). (Id. at 4). Instead, the letter reiterates the background of the parties' dispute and the history of the proceedings that led to the appointment of the Special Master. (Id. at 1). All of the information contained in the letter was either discussed during the April 7, 2011 conference call with the Special Master, a matter of public record from prior filings, or already available to EEOC through e-mail correspondence between the parties. (Id.). U.S. Steel also asserts that such communication, which does not concern the merits of the referred motions, was authorized by this Court's referral Order. (Id. at 4). Given same, U.S. Steel maintains that the letter does not constitute new evidence and reconsideration, recusal of the Special Master and sanctions are not warranted. Further, U.S. Steel argues that there is no manifest injustice, as this Court conducted an independent de novo review of the record in reaching its decision to adopt the Special Master's Supplemental Report and Recommendation. (Docket No. 173 at 2).


A. Timeliness

Section II.M. of this Court's Practices and Procedures provides that "[a]ny Motions for reconsideration shall be filed within seven (7) days," See Practices and Procedures of Judge Nora Barry Fischer, Effective March 23, 2010, available at: The Court's Order adopting the Special Master's Supplemental Report and Recommendation was filed on September 30, 2011. (Docket No. 118). EEOC did not file its Motion for Reconsideration until December 6, 2011 (Docket No. 154), as it claims that it discovered the letter at issue on November 28, 2011. (Docket No. 154-5). In any event, EEOC's Motion for Reconsideration is untimely under Federal Rule of Civil Procedure 6(a)(1), by one day.*fn15 Yet, U.S. Steel never raised lack of timeliness as an objection to EEOC's Motion. Despite EEOC's tardiness (without leave of Court), this Court will proceed to rule on EEOC's Motion.

B. Basis for Reconsideration

The purpose of a motion for reconsideration "is to correct manifest errors of law or fact or to present newly discovered evidence." Howard Hess Dental Lab. Inc. v. Dentsply Intern, Inc., 602 F.3d 237, 251 (3d Cir. 2010) (citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). The standard that Plaintiff must meet to prevail on a motion for reconsideration is high. Berry v. Jacobs IMC, LLC, 99 F.App'x. 405, 410 (3d Cir. 2004). The Court may grant a motion for reconsideration if the moving party shows: (1) an intervening change in the controlling law; (2) the availability of new evidence which was not available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. Linhart v. Zitelli & Brodland, P.C., Civ. A. No. 10-530, 2011 WL 5188061, at * 2 (W.D.Pa. Nov. 1, 2011) (citing Max's Seafood Cafe by Lou--Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). Here, EEOC argues that reconsideration is warranted because the ex parte letter constitutes new evidence justifying reconsideration. It also claims that a manifest injustice results from the Special Master's consideration of same during the proceedings before her. (Docket No. 154).

"A motion for reconsideration relying on the discovery of new evidence subsequent to an initial order should only be granted if the party presenting the new evidence demonstrates that the new evidence would have changed the initial rulings." Graham v. Progressive Direct Ins. Co., No. 09-969, 2010 WL 3092684, at *2 (W.D.Pa. Aug. 6, 2010). Where the basis of a motion for reconsideration is to correct a manifest injustice, the moving party must show that the underlying decision "was clearly wrong and that adherence to the decision would create a manifest injustice." Payne v. DeLuca, No. 02--1927, 2006 WL 3590014, at *2 (W.D.Pa. Dec.11, 2006); see also Donaldson v. Informatica Corp., Civ. A. No. 08-605, 2009 WL 5184380, *1 (W.D.Pa. Dec. 22, 2010). Furthermore, "because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Id. (quoting Continental Cas. Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D.Pa. 1995)). It is evident that a motion for reconsideration is not a tool to re-litigate and reargue issues which have already been considered and disposed of by the court. Id. (citing Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D.Pa. 1992)).


A. Applicable Law Regarding ...

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