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No. 15-3452 ______________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT _______________________________________________________
Equal Employment Opportunity Commission, Petitioner-Appellee, v. Union Pacific Railroad Company, Respondent-Appellant.
________________________________________
Appeal From the United States District Court For the Eastern District of Wisconsin
Case No. 2:14-mc-00052-LA The Honorable Lynn Adelman
________________________________________
BRIEF OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL AS AMICUS CURIAE IN SUPPORT OF RESPONDENT-APPELLANT
AND IN SUPPORT OF REVERSAL ________________________________________________________
Rae T. Vann Counsel of Record Michael P. Bracken
NT LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC 20005 (202) 629-5600 [email protected]
Attorneys for Amicus Curiae Equal Employment Advisory Council
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 15-3452 Short Caption: Equal Employment Opportunity Commission v. Union Pacific Railroad Company
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): EQUAL EMPLOYMENT ADVISORY COUNCIL, Amicus Curiae
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including
proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: NT LAKIS, LLP
(3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and None. ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None.
Attorney's Signature: s/Rae T. Vann Date: 09/23/2016 Attorney's Printed Name: Rae T. Vann
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No
Address: NT LAKIS, LLP; 1501 M Street, N.W., Suite 400; Washington, DC 20005
Phone Number: (202) 629-5600 Fax Number: (202) 629-5601 E-Mail Address: [email protected]
rev. 01/08 AK
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
INTEREST OF THE AMICUS CURIAE ...................................................................... 1
STATEMENT OF THE CASE ....................................................................................... 3
SUMMARY OF ARGUMENT ....................................................................................... 5
ARGUMENT .................................................................................................................. 6
I. THE DISTRICT COURT ERRED WHEN IT ENFORCED THE EEOC’S SUBPOENA AFTER A RIGHT-TO-SUE NOTICE WAS ISSUED AND THE ENSUING LAWSUIT FULLY ADJUDICATED ..................................................... 6
A. Title VII Provides For An Integrated, Multistep Enforcement Procedure That
Intentionally Limits The EEOC’s Investigative Authority ............................... 6
B. Title VII Does Not Authorize The EEOC To Continue To Investigate A Charge After It Has Issued A Right-To-Sue Notice And A Private Action Has Commenced ......................................................................................................... 8 1. EEOC’s Regulation Purporting To Grant Itself The Right To Continue An Investigation After A Right-To-Sue Is Issued Is Not Entitled To Deference ...................................................................................................... 10 2. The Fifth Circuit’s Rationale In EEOC v. Hearst Corp. Is Instructive ...... 13
C. After Adjudication, There Is No Valid Charge On Which To Base An Investigation ..................................................................................................... 15
II. REQUIRING EMPLOYERS TO CONTINUE TO DEFEND CHARGES AFTER THE EEOC HAS RELINQUISHED ITS JURISDICTION AND CLAIMS HAVE BEEN ADJUDICATED WOULD IMPOSE SIGNIFICANT BURDENS ON EMPLOYERS WITHOUT ADVANCING TITLE VII’S PURPOSES ................... 17
CONCLUSION ............................................................................................................. 18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
CASES
Ameritech Benefit Plan Committee v. Communications Workers of America, 220 F.3d 814 (7th Cir. 2000) .................................................................................... 2 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ................................................................................................ 11 EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009) ............................ 13, 14 EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) .............. 13, 14 EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997) ................................... 5, 8, 13, 14
EEOC v. Mach Mining, L.L.C., 738 F.3d 171 (7th Cir. 2013), vacated, __ U.S. __ , 135 S. Ct. 1645 (2015) .............................................................................................. 3
EEOC v. Shell Oil Co., 466 U.S. 54 (1985) ........................................................... 6, 7, 8
EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002) ......................... 7, 16, 17
Kyles v. J.K. Guardian Security Services, 222 F.3d 289 (7th Cir. 2000) ..................... 2 McReynolds v. Merrill Lynch & Co., 694 F.3d 873 (7th Cir. 2012) .............................. 3 Moranski v. General Motors Corp., 433 F.3d 537 (7th Cir. 2005) ............................ 2, 3 Ryan v. CFTC, 125 F.3d 1062 (7th Cir. 1997) .............................................................. 2
United States v. Mead Corp., 533 U.S. 218 (2001) ..................................................... 11
STATUTES
Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ............................................................................................. 1 Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ......................................................................................... 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ................................................................................ passim
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42 U.S.C. § 2000e-2(a)(1) .......................................................................................... 6
42 U.S.C. § 2000e-3(a) .............................................................................................. 6
42 U.S.C. § 2000e-5(b) .............................................................................. 7, 8, 12, 15
42 U.S.C. § 2000e-5(f)(1) ................................................................................. passim
42 U.S.C. § 2000e-12(a) .......................................................................................... 11
REGULATIONS
29 C.F.R. § 1601.12(a)(3) ............................................................................................... 7
29 C.F.R. § 1601.28 ........................................................................................................ 8
29 C.F.R. § 1601.28(a) ............................................................................................ 10, 11
29 C.F.R. § 1602.14 ................................................................................................ 16, 18
LEGISLATIVE HISTORY
Equal Employment Opportunity Act of 1972, H.R. Rep. No. 92-238 (1971), as reprinted in 1972 U.S.C.C.A.N. 2137 ................................................................ 13 OTHER AUTHORITIES
EEOC, Filing Before the Investigation is Completed (last visited 9/23/2016) ........... 15
The Equal Employment Advisory Council respectfully submits this brief
amicus curiae contingent upon granting of the accompanying unopposed motion for
leave to file.1
INTEREST OF THE AMICUS CURIAE
The Equal Employment Advisory Council (EEAC) is a nationwide association
of employers organized in 1976 to promote sound approaches to the elimination of
employment discrimination. Its membership includes over 250 major U.S.
corporations, collectively providing employment to millions of workers. All of
EEAC’s members are employers subject to Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621 et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and
other antidiscrimination laws.
EEAC’s member companies, many of which conduct business nationwide, are
strongly committed to equal employment opportunity and seek to establish and
enforce internal policies that are consistent with federal employment non-
discrimination laws. As employers, and as potential targets of EEOC
discrimination charge investigations and lawsuits, EEAC’s members have a direct
and ongoing interest in the issues presented in this appeal regarding the authority
of the EEOC to investigate charges and compel the production of evidence after a
1 Counsel for amicus curiae authored this brief in its entirety. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae, its members, or its counsel made a monetary contribution to its preparation or submission.
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right-to-sue notice has been served and the ensuing lawsuit has been fully
adjudicated. As a national representative of large employers, EEAC has perspective
and experience that can help the Court assess issues of law and public policy that
have been raised in this case, beyond the help that the lawyers for the parties can
provide. Cf. Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997).
Accordingly, EEAC seeks to bring these countervailing policy considerations
to the Court’s attention and assist the Court in putting the arguments of the
Respondent-Appellant into proper perspective. Mindful of this Court’s admonitions
in Ryan, EEAC’s amicus brief does not rehash legal arguments addressed in the
parties’ briefs. Rather, it offers observations and perspectives on the issues, based
on the collective experience of EEAC’s member companies.
For example, EEAC’s brief explains the significant practical burdens that
employers likely would face if the EEOC were permitted to continue investigating
after providing the charging party with notice of the right to sue and even after the
claims on which the charge is based have been dismissed on the merits. The
resulting obligation on employers to retain and preserve, indefinitely, voluminous
employment records and documentation, even after final disposition of the claims to
which the documents relate, is evidence enough of why such a rule should be
rejected.
Since 1976, EEAC has participated as amicus curiae in over 600 cases before
the U.S. Supreme Court, this Court,2 and other federal courts of appeals, many of
2 See, e.g., Ameritech Benefit Plan Comm. v. Commun. Workers of Am., 220 F.3d 814 (7th Cir. 2000); Kyles v. J.K. Guardian Sec. Servs., 222 F.3d 289 (7th Cir. 2000); Moranski v.
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which have involved Title VII enforcement issues. Because of its experience in
these matters, EEAC is well-situated to brief the Court on the relevant concerns of
the business community and the significance of this case to employers generally.
STATEMENT OF THE CASE
Former employees Frank Burks and Cornelius Jones worked for Union
Pacific as Signal Helpers. Doc. 3-4 at 3. Both were subject to a 90-day probationary
period. Id. After completing their probationary periods, both Burks and Jones
became eligible for promotion to Assistant Signal Person, subject to submitting an
online application and taking and passing a selection test (the “Assistant Signal
Person” test). Id. at 7. Jones applied to take the Assistant Signal Person test in
June 2011, and after receiving no response, reapplied in September 2011. Id.
Burks applied to take the test in October 2011. Id.
In October 2011, the company eliminated the Signal Helper job, and both
Burks and Jones were laid off. Id. at 9. Neither applied to take the Assistant
Signal Person selection test again or applied for any other positions at the company.
Id. at 8-9. Soon thereafter, they filed separate charges with the U.S. Equal
Employment Opportunity Commission (EEOC) alleging race discrimination and
retaliation. Id. at 13. Among other things, they claimed that they were denied an
opportunity to take the Assistant Signal Person test in retaliation for lodging prior
discrimination complaints with the company. Id.
General Motors Corp., 433 F.3d 537 (7th Cir. 2005); McReynolds v. Merrill Lynch & Co., 694 F.3d 873 (7th Cir. 2012); EEOC v. Mach Mining, L.L.C., 738 F.3d 171 (7th Cir. 2013), vacated, __ U.S. __ , 135 S. Ct. 1645 (2015).
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The EEOC issued right-to-sue notices as to both charges in July 2012, and
Burks and Jones subsequently filed suit against Union Pacific in the U.S. District
Court for the Northern District of Illinois. Doc. 4-7 at 19-33. The EEOC did not
intervene in that action. Nearly two years later, the EEOC asked Union Pacific to
submit additional information in connection with the Burks and Jones
discrimination charges. Id. at 4-7. The company refused, and the agency issued a
subpoena seeking extensive, companywide information about the selection test,
including the names and test results of those who took it. App. 15 at ¶a-h.
On July 7, 2014, the discrimination lawsuit was dismissed on the merits and
judgment entered in Union’s Pacific’s favor. Burks v. Union Pac. R.R. Co., 2014 WL
3056529 (N.D. Ill. 2014). Burks and Jones appealed to the Seventh Circuit, which
affirmed the trial court’s decision. Burks v. Union Pac. R.R. Co., 793 F.3d 694 (7th
Cir. 2015). The following month, the EEOC filed an action in the U.S. District
Court for the Eastern District of Wisconsin to enforce its administrative subpoena.
EEOC v. Union Pac. R.R. Co., No. 2:14-mc-00052-LA (E.D. Wis. Aug. 25, 2014).
Union Pacific moved to dismiss, arguing among other things that the EEOC
relinquished its authority to investigate when (1) it issued right-to-sue notices, and
(2) Burks and Jones’s subsequent lawsuit was dismissed on the merits. EEOC v.
Union Pac. R.R. Co., No. 2:14-mc-00052-LA (E.D. Wis. Sept. 15, 2014).
For its part, the EEOC contended that it is “the master of its own case” and
has jurisdiction, pursuant to its own procedural regulation, to continue an
investigation even after a right-to-sue has been issued and the ensuing lawsuit is
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dismissed. The district court denied Union Pacific’s motion to dismiss, EEOC v.
Union Pac. R.R. Co., 102 F. Supp. 3d 1037 (E.D. Wis. 2015), and ordered compliance
with the subpoena. This appeal ensued.
SUMMARY OF ARGUMENT
The issue of whether the EEOC can continue an investigation based on a
charge that was the subject of a right-to-sue notice and/or has been dismissed on the
merits is one of great practical significance to employers. Neither Title VII’s text,
regulations, or legislative history – nor any reasonable policy argument – justifies
permitting the EEOC to continue investigating claims that have been fully
adjudicated in court.
As the Fifth Circuit concluded in EEOC v. Hearst Corp., the EEOC may not
continue to investigate under those circumstances, because once formal litigation is
commenced, the underlying purpose and aims of the administrative investigation no
longer are served. 103 F.3d 462 (5th Cir. 1997). Indeed, the statutory text, U.S.
Supreme Court interpretations, due process considerations, and even the EEOC’s
own procedural regulations all caution strongly against endorsing the notion that
the agency can investigate charges that no longer are valid, in other words, that do
not contain allegations of statutory violations brought by an “aggrieved person.”
As a policy matter, allowing the EEOC to expand its investigative authority
in such a manner would drag out discrimination claim resolution, contrary to Title
VII’s goal of prompt and informal charge resolution. As a practical matter, it would
force employers to retain employment records perpetually, just in case the EEOC
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decides to resume investigation of a released charge – requiring them to defend
against claims they already may have defeated on the merits. It also would allow
the agency to use a dead charge as a springboard to search for other, unasserted
potential violations.
ARGUMENT
I. THE DISTRICT COURT ERRED WHEN IT ENFORCED THE EEOC’S SUBPOENA AFTER A RIGHT-TO-SUE NOTICE WAS ISSUED AND THE ENSUING LAWSUIT FULLY ADJUDICATED
A. Title VII Provides For An Integrated, Multistep Enforcement
Procedure That Intentionally Limits The EEOC’s Investigative Authority
The U.S. Equal Employment Opportunity Commission (EEOC) was created
by Congress in Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.
§§ 2000e et seq., as amended, which prohibits discrimination against a covered
individual “with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin,” 42 U.S.C. § 2000e-2(a)(1), or because he or she has complained of alleged
workplace discrimination in violation of the Act. 42 U.S.C. § 2000e-3(a). Title VII
sets forth “an ‘integrated, multistep enforcement procedure’ that ... begins with the
filing of a charge with the EEOC alleging that a given employer has engaged in an
unlawful employment practice.” EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1985)
(quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977)) (footnote
omitted). A discrimination charge may be filed with the EEOC by any individual
claiming to be aggrieved or by a member of the Commission itself where he or she
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has reason to believe unlawful discrimination has occurred but for which an
individual charge alleging the specific type of discrimination has not been filed. Id.
Such a charge must be in writing, 42 U.S.C. § 2000e-5(b), and contain “[a] clear and
concise statement of the facts, including pertinent dates, constituting the alleged
unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3).
Upon receipt of a valid discrimination charge, the EEOC must conduct an
investigation to determine whether there is reasonable cause to believe that
discrimination occurred. 42 U.S.C. § 2000e-5(b). In EEOC v. Shell Oil, the
Supreme Court observed that “unlike other federal agencies that possess plenary
authority to demand to see records relevant to matters within their jurisdiction, the
EEOC is entitled to access only evidence ‘relevant to the charge under
investigation.’” 466 U.S. at 64 (emphasis added) (citation and footnote omitted). In
other words, “the authority of the EEOC to investigate is grounded in the charge of
discrimination.” EEOC v. United Air Lines, Inc., 287 F.3d 643, 650 (7th Cir. 2002).
In this respect, the EEOC’s investigatory power is “significantly narrower than that
of [other agencies that] are authorized to conduct investigations, inspect records,
and issue subpoenas, whether or not there has been any complaint of wrongdoing.”
Shell Oil, 466 U.S. at 64-65 (citation omitted). Accordingly, courts must “strive to
give effect to Congress’ purpose in establishing a linkage between the Commission’s
investigatory power and charges of discrimination [intended to] prevent the
Commission from exercising unconstrained investigative authority ….” Id. at 65.
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Thus, under Shell Oil, the reviewing court “has a responsibility to satisfy
itself that the charge is valid and that the material requested is ‘relevant’ to the
charge” before the subpoena is enforced. Id. at 72 n.26. If a charge is not being
brought on behalf of an aggrieved person or is otherwise not valid, then it will not
constitute a “charge” over which the EEOC has authority to investigate.
If after investigating the EEOC determines that reasonable cause exists to
believe the charge has merit, then it must attempt to eliminate the unlawful
practice by informal methods of “conference, conciliation, and persuasion.” 42
U.S.C. § 2000e-5(b). If the charge cannot be resolved through conciliation, then the
EEOC may either bring its own civil action or notify the charging party in writing,
of the right to sue in federal court. 42 U.S.C. § 2000e-5(f)(1); see also 29 C.F.R.
§ 1601.28. Once served with a right-to-sue notice, the charging party then has 90
days to file a lawsuit and the EEOC has the opportunity to intervene in that lawsuit
upon a showing that the case is of “general public importance.” Id.
B. Title VII Does Not Authorize The EEOC To Continue To Investigate A Charge After It Has Issued A Right-To-Sue Notice And A Private Action Has Commenced
Once a charging party obtains a right-to-sue notice from the EEOC and acts
upon that notice, the agency’s authority to investigate ends, because the main
purposes of the investigation – to determine if there is reasonable cause to believe
that discrimination occurred and, if so, to resolve the claim through conciliation –
are no longer served. EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997). Here,
right-to-sue notices were issued, and the charging parties’ lawsuit filed, almost two
9
years before the EEOC served its investigative subpoena. Nothing in Title VII
permits the EEOC to continue (or in this case, resume) its investigation of the
underlying charge under those circumstances. Accordingly, the decision below
should be reversed.
Title VII provides, in relevant part:
If a charge filed with the Commission … is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge … the Commission has not filed a civil action under this section … or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission … shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. … Upon timely application, the court may, in its discretion, permit the Commission … to intervene in such civil action upon certification that the case is of general public importance.
42 U.S.C. § 2000e-5(f)(1). This provision contains no language authorizing the
EEOC to continue its administrative investigative activities after notifying a
charging party of his or her right to sue. To the contrary, by granting courts the
discretion to permit the EEOC to intervene in subsequently-filed civil actions,
Congress plainly intended for the issuance of a notice of right-to-sue to terminate
the EEOC’s administrative processing of the charge.
Had Congress intended this provision to confer upon the EEOC independent,
post-right-to-sue investigative authority – through which it presumably would
retain the right to litigate in the public interest after finding reasonable cause and
engaging in good faith (but unsuccessful) conciliation efforts – it would have said so
10
explicitly, rather than simply outlining the circumstances under which the agency
would be permitted to intervene in a private action. Indeed, the statute strongly
suggests that once the EEOC issues a right-to-sue notice and a private lawsuit is
filed, it no longer has any right to act upon the underlying charge, but may be
permitted, in a court’s discretion, to intervene in the pending litigation upon
showing the matter “is of general public importance.” 42 U.S.C. § 2000e-5(f)(1).
Such a construction comports with the purpose of an EEOC investigation and the
limits on the agency’s authority to sue.
1. EEOC’s Regulation Purporting To Grant Itself The Right To Continue An Investigation After A Right-To-Sue Is Issued Is Not Entitled To Deference
To the extent that the EEOC has promulgated an administrative regulation
purporting to authorize the agency to continue an investigation after notifying the
charging party of his or her right to sue, it is contrary to the statute’s plain text and
therefore is invalid and not entitled to judicial deference. Section 1601.28 of the
EEOC’s Title VII procedural regulations provides:
When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued … the Commission shall promptly issue such notice as described in Sec. 1601.28(e) to all parties …. Issuance of a notice of right to sue shall terminate further proceeding of any charge that is not a Commissioner charge unless the District Director; Field Director; Area Director; Local Director; Director of the Office of Field Programs or upon delegation, the Director of Field Management Programs; or the General Counsel, [sic] determines at that time or at a later time that it would effectuate the purpose of title VII, the ADA, or GINA to further process the charge.
29 C.F.R. § 1601.28(a) (emphasis added). The trial court relied on the regulation in
ruling that the EEOC has the authority to continue its investigation of a charge
11
after a right-to-sue has been issued. However, such an interpretation cannot be
squared with Title VII’s text, which limits the EEOC’s involvement in a matter
after issuance of a right-to-sue notice to intervening in the ensuing litigation upon
showing that the matter “is of general public importance.” 42 U.S.C. § 2000e-5(f)(1).
Therefore, the trial court erred in relying on 29 C.F.R. § 1601.28(a) to justify the
EEOC’s actions in this case.
In enacting Title VII, Congress conferred upon the EEOC “the authority from
time to time to issue, amend, or rescind suitable procedural regulations” for the
administration of the Act. 42 U.S.C. § 2000e-12(a). While “considerable weight
should be accorded to an executive department’s construction of a statutory scheme
it is entrusted to administer,” as the Supreme Court repeatedly has said, “[t]he fair
measure of deference to an agency administering its own statute has been
understood to vary with circumstances ….” United States v. Mead Corp., 533 U.S.
218, 227-28 (2001) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 844 (1984)). If Congress has “spoken to the precise question at issue,”
the agency may not attempt to impose its own interpretation of the matter, and
“must give effect to the unambiguously expressed intent of Congress.” Chevron, 467
U.S. at 842-43 (footnote omitted).
Title VII outlines two circumstances under which the EEOC may issue a
right-to-sue notice – both of which contemplate a termination of the agency’s
administrative investigation: (1) when the agency dismisses the charge, and 2)
within 180 days of the filing of the charge if the agency has not pursued the charges
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in a civil action or entered into a conciliation agreement to which the person
aggrieved is a party. 42 U.S.C. § 2000e-5(f)(1). At that point, the EEOC may
remain directly involved in the matter by successfully moving to intervene in the
subsequent litigation. Contrary to Title VII’s plain text, Section 1601.28 purports to
allow the agency to continue an investigation even after it has issued a right-to-sue
notice. Because Section 1601.28 directly conflicts with Title VII, it is invalid, not
entitled to deference, and thus cannot be used to justify expansion of the EEOC’s
post-notice investigative authority.
It is difficult to believe that Congress would have directed the EEOC to
“promptly notify” a charging party of his or her right to pursue a private cause of
action, 42 U.S.C. § 2000e-5(b) – and in the same provision specify the circumstances
under which the EEOC would be permitted to intervene in such litigation – while
simultaneously allowing the agency to continue, indefinitely, its investigation of the
underlying charge.3 Indeed, the right-to-sue notice signals that the charging party
has satisfied his or her duty to exhaust administrative remedies; allowing the
EEOC to resume an investigation of a charge that was the subject of a right-to-sue
notice would call into question whether administrative remedies were, in fact
exhausted. It also would give the EEOC the means through which to initiate
separate litigation based on the same set of facts and allegations, contrary to the
administrative scheme contemplated by Congress. In fact, when Congress amended
3 Here, the EEOC had the opportunity, but declined, to intervene in the charging parties’ lawsuit, instead waiting for almost two years while the lawsuit progressed before serving its investigative subpoena.
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Title VII to give the EEOC authority to sue in federal court, it expressed concern
“about the interrelationship between the newly created cease and desist
enforcement powers of the Commission and the existing right of private action …
concluding that duplication of proceedings should be avoided.” Equal Employment
Opportunity Act of 1972, H.R. Rep. No. 92-238 (1971), as reprinted in 1972
U.S.C.C.A.N. 2137, 2148. It explained:
The bill, therefore, contains a provision for termination of Commission jurisdiction once a private action has been filed (except for the power of the Commission to intervene in the private actions). It contains as well a provision for termination of the right of private action once the Commission issues a complaint or enters into a conciliation or settlement agreement which is satisfactory to the Commission and to the person aggrieved. If such an agreement is not acceptable to the aggrieved party, his [or her] private right of action is preserved.
Id. “Accordingly, Congress ultimately created an ‘alternative enforcement
procedure’ allowing employees to pursue private actions once the 180-day
period of exclusive EEOC jurisdiction terminates.” EEOC v. Frank’s Nursery
& Crafts, Inc., 177 F.3d 448, 457 (6th Cir. 1999) (citation omitted) (emphasis
added).
2. The Fifth Circuit’s Rationale In EEOC v. Hearst Corp. Is Instructive In EEOC v. Hearst Corp., the Fifth Circuit held that the EEOC cannot
continue to investigate charges of discrimination after the agency issues a right-to-
sue notice and the charging parties file their own Title VII lawsuit. 103 F.3d 462,
469-70 (5th Cir. 1997); contra EEOC v. Federal Express Corp., 558 F.3d 842 (9th
Cir. 2009). In concluding that the original charge “no longer provides a basis for an
14
EEOC investigation,” it observed that Congress granted the EEOC “broad
investigatory authority” for two reasons: 1) to help the agency promptly and
effectively determine whether Title VII had been violated; and 2) to help the agency
resolve the dispute without formal litigation. Hearst, 103 F.3d at 469. These two
objectives are “no longer served,” the court concluded, “once formal litigation is
commenced.” Id.
Pointing to Title VII’s text, the Fifth Circuit further found that once a
charging party receives and acts upon a right-to-sue notice, the EEOC’s only
recourse is to move to intervene in the private suit or, if the agency’s interest
“extends beyond the private party charge upon which it is acting,” id., to file a
Commissioner charge or wait to investigate a different charge raising the same
issues. The EEOC urged the lower court to reject the Fifth Circuit’s reasoning and
instead adopt the Ninth Circuit’s rationale in Federal Express. Amicus respectfully
submits that by permitting the EEOC to continue its investigation after issuing a
right-to-sue notice and a private action has been commenced, the Ninth Circuit
disregarded Title VII’s text and gave undue deference to the EEOC’s unsound
procedural regulations. In sum, once a charging party invokes his or her right to
sue, the EEOC’s “period of exclusive jurisdiction terminates.” Frank’s Nursery, 177
F.3d at 457.
Even the EEOC’s own guidance to charging parties on “Filing a Lawsuit”
confirms the understanding that a right-to-sue notice is intended to terminate
administrative processing of the subject charge: “Once you have been given a
15
Notice of the Right-to-Sue, we will close the case and take no further action. So if
you want EEOC to continue investigating your charge, don't request the Notice of
Right-to-Sue.”4 Indeed, the guidance is entirely consistent with the EEOC’s regular
practice of closing an administrative charge investigation after issuing a right-to-
sue notice.
Because the plain language of Title VII does not confer upon the EEOC the
authority to continue to investigate a charge of discrimination after it has issued a
right-to-sue notice and private litigation has been initiated, the agency’s
administrative subpoena in this case should not have been enforced.
C. After Adjudication, There Is No Valid Charge On Which To Base An Investigation
After a right-to-sue notice is issued and the subsequently filed lawsuit is
dismissed on the merits, there is no longer any valid charge upon which to base an
investigation. Title VII’s statutory text, this Court’s and the Supreme Court’s
interpretations, as well as the EEOC’s own procedural regulations, all caution
strongly against endorsing the notion that the agency can investigate charges that
no longer are valid, in other words, that do not contain allegations of statutory
violations brought by an “aggrieved person” and upon which the charging party has
no possibility of prevailing.
Title VII provides that for a charge to be valid, it must be filed by an
aggrieved party and must allege that an employer has engaged (or is engaging) in
an unlawful employment practice. 42 U.S.C. 2000e-5(b). In addition, this Court has 4 See EEOC, Filing Before the Investigation is Completed, available at https://www.eeoc.gov/employees/lawsuit.cfm (last visited 9/23/2016).
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held that where a charging party has no possibility of prevailing on his or her
complaint, the underlying charge on which it is based is invalid and the EEOC
cannot justify further investigation of that charge. In EEOC v. United Air Lines,
the Court determined that the EEOC’s subpoena was overly broad but instructed
that on remand, the lower court should first determine whether the charging party
had any possibility of prevailing on the claims, because if not, no additional scrutiny
of the subpoena was necessary as the EEOC had no grounds to issue it. 287 F.3d
643, 655 (7th Cir. 2002) (“it is incumbent on the district court first to resolve
whether there is any possibility that [the charging party] might prevail on her
complaint. … If [not], we see no reason for the district court to undertake any
additional scrutiny of the subpoena because the EEOC would have no ground upon
which to justify its issuance”).
This Court’s reasoning applies with even more force where, as here, the
plaintiff’s discrimination claims have been dismissed on the merits and that
decision has been fully affirmed on appeal. Even the EEOC’s own regulations
acknowledge that a charge is no longer active or valid once a resulting litigation is
adjudicated. See 29 C.F.R. § 1602.14 (the “date of final disposition of the charge or
action” is “the date on which [resulting] litigation is terminated”).
If the EEOC believes that further investigation of a discrimination claim
raised in an adjudicated lawsuit is warranted, it is free to bring a Commissioner
charge. But it cannot use that charge as a springboard to “fish” for other potential
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violations. United Air Lines, 287 F.3d at 653 (the charge requirement itself “is
designed to cabin the EEOC’s authority and prevent ‘fishing expedition[s]’”).
II. REQUIRING EMPLOYERS TO CONTINUE TO DEFEND EEOC CHARGES AFTER THE EEOC RELINQUISHES ITS JURISDICTION AND CLAIMS HAVE BEEN ADJUDICATED WOULD IMPOSE SIGNIFICANT BURDENS ON EMPLOYERS WITHOUT ADVANCING TITLE VII’S PURPOSES
Allowing the EEOC to continue investigating after a right-to-sue notice has
been issued and the subsequent lawsuit has been dismissed on the merits would
impose significant burdens on employers with no justifiable countervailing benefits.
When faced with notice of an EEOC charge of discrimination, most employers
devote significant time and resources to manage the ensuing charge investigation
and defend themselves before the agency. Employers also expend significant time
and resources defending discrimination lawsuits, even those that are meritless.
If the EEOC were permitted to continue to investigate after the charging
party has received and acted upon a right-to-sue notice, the practical implications
would be significant. Companies would be forced to simultaneously defend the
same claims in two different fora at significant cost, making the same witnesses and
evidence available to the court and to the EEOC – which in private sector cases
ultimately has no adjudicative authority in any event. Also, because Title VII does
not authorize the EEOC to continue an investigation of a dead charge, and thus
offers no mechanism for notifying an employer of the EEOC’s intention to do so,
employers will not know of the EEOC’s intention to reopen an investigation until
they are served with a dilatory information request without proper notice.
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Depending on the length of the EEOC’s delay, employers likely will have failed to
preserve relevant evidence, thus leaving them in a profoundly disadvantageous
position.
To avoid that outcome, employers would be forced to maintain litigation holds
and preserve employment records indefinitely, even after final disposition of a
lawsuit, even in the absence of any legal obligation to do so. To the contrary the
EEOC requires that employers “preserve all personnel records relevant to the
charge … until final disposition of the charge …,” 29 C.F.R. § 1602.14, meaning
either 90 days after a right-to-sue notice is issued if the charging does not bring a
lawsuit, or if a lawsuit is filed, “the date on which such litigation is terminated.” Id.
CONCLUSION
For the foregoing reasons, amicus curiae EEAC respectfully urges the Court
to reverse the decision below.
Respectfully submitted,
s/ Rae T. Vann Rae T. Vann Counsel of Record Michael P. Bracken NT Lakis, LLP 1501 M St., N.W., Suite 400 Washington, DC 20005 [email protected] (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory
Council
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,
AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because:
X this brief contains 4,795 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
__this brief uses a monospaced typeface and contains [state the number of ] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
X this brief has been prepared in a proportionally spaced typeface using MS WORD 2010 in Century Schoolbook 12 pt., or
__this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].
(s) Rae T. Vann, Attorney for Equal Employment Advisory Council, amicus curiae
Dated: September 23, 2016
CERTIFICATE OF SERVICECertificate of Service When All Case Participants Are CM/ECF Participants
I hereby certify that on ___________________, I electronically filed the foregoing with theClerk of the Court for the United States Court of Appeals for the Seventh Circuit by usingthe CM/ECF system. I certify that all participants in the case are registered CM/ECF usersand that service will be accomplished by the CM/ECF system.
s/__________________________________
CERTIFICATE OF SERVICECertificate of Service When Not All Case Participants Are CM/ECF Participants
I hereby certify that on ___________________, I electronically filed the foregoing with theClerk of the Court for the United States Court of Appeals for the Seventh Circuit by usingthe CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the CM/ECFsystem.
I further certify that some of the participants in the case are not CM/ECF users. I havemailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched itto a third-party commercial carrier for delivery within 3 calendar days, to the followingnon-CM/ECF participants:
counsel / party:_____________________________________
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address:_____________________________________
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s/__________________________________
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September 23, 2016
Rae T. Vann
