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ROBERTA L. STEELE, SBN 188198 (CA)
MARCIA L. MITCHELL, SBN 18122 (WA)
JAMES H. BAKER JR, SBN 291836 (CA)
KENA C. CADOR, SBN 321094 (CA)
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
San Francisco District Office 450 Golden Gate Ave., 5th Floor West P.O. Box 36025 San Francisco, CA 94102 Telephone No. (650) 684-0950 Fax No. (415) 522-3425 james.baker@eeoc.gov
Attorneys for Plaintiff EEOC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
vs.
TESLA, INC.
Case No.: 3:23-cv-04984-JSC
DECLARATION OF NANCY SIENKO IN
SUPPORT OF PLAINTIFF EEOC’S
OPPOSITION TO DEFENDANT TESLA,
INC.’S MOTION TO STAY ALL
PROCEEDINGS
Defendant.
I, Nancy Sienko, being of lawful age, declare under the penalty of perjury, that the following statements are true and correct to the best of my knowledge:
1.
I am the District Director of the San Francisco District Office of the Equal Employment
Opportunity Commission (EEOC).
2.
As District Director, I have authority to make determinations finding reasonable cause
and to issue cause letters of determination, pursuant to 29 C.F.R. § 1601.21(d). I also have authority
to enter into informal conciliation efforts and to negotiate and sign conciliation agreements, pursuant
to 29 C.F.R. § 1601.24.
SIENKO DECL ISO OPPOSITION
TO MOTION TO STAY
Case No.: 3:23-cv-04984-JSC
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3.
Where the Commission is unable to obtain voluntary compliance, I have the
authority, pursuant to 29 C.F.R. § 1601.25, to determine that further efforts to do so would be futile
or nonproductive and to so notify the respondent in writing.
4.
On May 28, 2019, Chair Burrows, then Commissioner Burrows, filed a sworn Charge
of Discrimination against Tesla, Charge No. 555-2019-01273. (Exhibit 1) 5.
The Commissioner’s Charge alleged that “since at least May 29, 2015, [Tesla] may
have violated, and may continue to violate, Title VII of the Civil Rights Act of 1964, as amended, by
discriminating against employees based on their race (black) and retaliating against employees for
engaging in protected activity.”
6.
I have reviewed the investigative file for Charge No. 555-2019-01273.
7.
The San Francisco District Office of the EEOC conducted an investigation of Charge
No. 555-2019-01273, including requesting and reviewing information produced by Tesla,
interviewing current and former Black workers employed by Tesla, and reviewing sworn
declaration, deposition, trial and arbitration testimony of current and former employees including
managers and human resources representatives.
8.
EEOC conducted the investigation consistent with the worksharing agreement
between EEOC and the California Civil Rights Department.
9.
After three years, EEOC had amassed ample evidence to assess the merits of the
allegations in Commissioner Burrows’ charge.
10.
In March 2022, EEOC notified Tesla that it had concluded its investigation and
was prepared to issue a determination.
11.
On March 21, 2022, an EEOC investigator conducted a one-hour verbal
Predetermination Interview with Tesla counsel Sara Begley, Stephanie Stroup and David Searle.
The investigator advised Tesla that the EEOC, having concluded its investigation, intended to issue a
cause finding on Charge No. 555-2019-01273. The investigator described the proposed findings of
hostile work environment and retaliation against a class of employees employed at Tesla’s Fremont
facilities since May 29, 2019. The investigator also detailed the facts and evidence supporting the
cause finding. The investigator invited Tesla to submit a written rebuttal, including any evidence it
SIENKO DECL ISO OPPOSITION
TO MOTION TO STAY
Case No.: 3:23-cv-04984-JSC
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wanted to provide to refute the EEOC’s findings, by March 29, 2022, and then was granted an
extension of time to April 6, 2022, as requested.
12.
On April 6, 2022, Tesla counsel Sara Begley submitted a rebuttal letter that raised
concerns about the investigation and certain legal issues and requested a meeting with EEOC. Tesla
did not submit additional evidence with this letter.
13.
On April 29, 2022, I spoke to Tesla counsel Sara Begley by telephone at her request.
She complimented the EEOC investigator’s Predetermination Interview and “remarkable job”
presenting the facts and evidence leading to EEOC’s cause finding. She also asked for a meeting to
have the opportunity to share information with EEOC and to "explore the pathway forward"
regarding this matter. I asked EEOC staff to schedule the requested meeting. 14.
On May 24, 2022, I, the Regional Attorney and enforcement staff for the San
Francisco District Office met via Zoom with Tesla counsel, Sara Begley and Stephanie Stroup, as
requested, to provide an opportunity for Tesla to present any information and evidence it wished to
rebut the EEOC’s cause finding. The meeting last approximately one hour. The EEOC listened to
and gave due consideration to Tesla’s presentation then granted Tesla another window to supplement
the evidentiary record before EEOC finalized its investigation.
15.
On June 1, 2022, the EEOC issued to Tesla a Letter of Determination finding
reasonable cause to believe that Tesla “violated Title VII of the Civil Rights Act of 1964, as
amended, by subjecting a class of Black employees to a hostile work environment and retaliating
against a class of Black employees who engaged in protected activity. The aggrieved persons
include all Black employees who were employed at [Tesla’s] Fremont, CA facilities at any time
since May 29, 2015, to the present, who have been adversely affected by such unlawful employment
practices.” (Exhibit 2)
16.
The Letter of Determination also invited Tesla to join EEOC “in collective efforts
toward a just resolution of this matter through informal methods of conciliation”. 17.
Between July 28, 2022, and June 21, 2023, the EEOC engaged in communications
with Tesla to provide it the opportunity to remedy the discriminatory practices described in the
Letter of Determination, including exchanging ,multiple email messages and phone calls with Tesla,
SIENKO DECL ISO OPPOSITION
TO MOTION TO STAY
Case No.: 3:23-cv-04984-JSC
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sending Tesla a conciliation proposal, and participating in a seven hour, in person conciliation
session at EEOC’s San Francisco office on June 13, 2023.
18.
I concluded that further conciliation efforts would not result in the Commission being
able to secure from Tesla a conciliation agreement, including monetary relief, acceptable to the
Commission.
19.
On June 21, 2023, I issued a notice to Tesla stating that conciliation efforts as
required by law had occurred and had been unsuccessful, and that the EEOC had determined that
further conciliation efforts would be futile or non-productive. (Exhibit 3)
Executed pursuant to 28 U.S. C. § 1746, this 3rd day of January 2024.
Digitally signed by Nancy A. Sienko DN: cn=Nancy A. Sienko, o=U.S. EEOC, ou=San Francisco District Office, email=NANCY.SIENKO@EEOC.GOV, c=US Date: 2024.01.03 15:54:11 -08'00'
Nancy A. Sienko
__________________________ Nancy Sienko
SIENKO DECL ISO OPPOSITION
TO MOTION TO STAY
Case No.: 3:23-cv-04984-JSC
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