IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

1. BILLY RAY CHANDLER, )

)

Plaintiff, )

)

vs. ) Case No: CIV-13-1082-HE

)

1. THE CITY OF LAWTON, and )

2. BRYAN P. LONG, in his official )

and individual capacity as Assistant )

City Manager, )

)

Defendants. )

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF CHANDLER AND

IN OPPOSITION TO DEFENDANT CITY OF LAWTON’S MOTION TO DISMISS CLAIMS 1 & 2 OF PLAINTIFF’S COMPLAINT

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the federal agency established by Congress to interpret, administer, and enforce Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., and other federal antidiscrimination statutes. The EEOC’s effective enforcement of these statutes depends, in significant part, on ensuring aggrieved individuals are able to file administrative charges of discrimination, because the EEOC’s receipt and investigation of charges is the Commission’s primary means of accomplishing its statutory mandates. See 29 U.S.C. § 626(d); 42 U.S.C. §§ 2000e-5, 12117(a). The EEOC is also charged with issuing and interpreting regulations that implement its statutory mandates, and its interpretation of these regulations is entitled to heightened deference. See, e.g., EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 n.5 (10th Cir. 1999).

Filing a timely charge with the EEOC is a statutory prerequisite for an employee to file a lawsuit under both the ADA and the ADEA. Id. Both statutes provide that a charge must be filed within 180 days after the alleged unlawful conduct, but if the charging party has “initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice,” the time limit is extended to 300 days. See 29 U.S.C. § 626(d), 42 U.S.C. §§ 2000e-5(e)(1), 12117(a). The EEOC has a strong interest in ensuring that federal antidiscrimination lawsuits are not improperly dismissed under the erroneous belief that the underlying charge was untimely under this provision. The defendant urges this Court to find that the 180-day limitations period applies because the Oklahoma Attorney General’s Office is not a Fair Employment Practices Agency (“FEPA”) under the EEOC’s regulations, but the issue of the proper limitations period is resolved by reference to the statutes themselves and is unrelated to “FEPA” status. According to both the ADEA and the ADA, the charge-filing limitations period is 300 days. Because of the importance of this issue to the proper implementation of the statutes the EEOC enforces, the Commission offers its views to this Court.

STATEMENT OF FACTS

Until 2012, EEOC had a worksharing agreement with the Oklahoma Human Rights Commission (OHRC) that made each agency the other’s agent for purposes of receiving charges, and indicated that OHRC waived its right to process charges initially received by the EEOC. R.8-2.[1] The Oklahoma legislature abolished the OHRC effective June 30, 2012, and thereafter the Oklahoma Attorney General’s Office of Civil Rights Enforcement (OAG) assumed responsibility for handling employment discrimination charges. Okla. Stat. Ann. tit. 25, §§ 1350, 1502(A). The EEOC immediately executed a memorandum of understanding (“MOU”) with the OAG. R.8-3. The MOU, like the worksharing agreement that preceded it, indicated that the OAG “waives its right to exclusive processing of charges originally filed with EEOC….” MOU § III (R.8-3 at 2). Unlike the worksharing agreement, however, the MOU does not make each agency the other’s agent for purposes of receiving charges. Instead, the MOU provides that the EEOC and OAG “each agree to provide the other Agency with a copy of each charge of discrimination filed with their respective agency.” MOU § II.B (id.). The MOU provides that the copy of each charge “shall be provided to the other Agency within ten calendar days of receipt of the charge.” Id.

Plaintiff Billy Ray Chandler filed a charge with the EEOC’s Oklahoma City Area Office on May 8, 2013. R.8-1. He alleged that 285 days earlier, on July 27, 2012, the City of Lawton discharged him because of age and disability. Id. The EEOC sent a copy of the charge to the OAG on June 27, 2013, fifty days after the EEOC received his charge and 335 days after his discharge. Letter from Holly Waldron Cole to OAG of June 27, 2013 (attached as Exhibit A).

The EEOC issued a right to sue notice, and Chandler filed a complaint under, inter alia, the ADEA and the ADA. R.1. Defendant moved to dismiss, relying on EEOC regulations to argue that the applicable limitations period in Oklahoma is now 180 days, not 300 days. R.8 at 2. The defendant argued that because Chandler did not file his EEOC charge within a 180 days, “there can be no dispute this Court does not have jurisdiction to entertain Plaintiff’s First and Second causes of action.” R.8 at 13.

ARGUMENT[2]

I. The Federal Charge-Filing Limitations Period in Oklahoma is 300 Days.

All individuals in Oklahoma have 300 days in which to file a charge of discrimination, as long as proceedings are timely initially instituted with the State agency, and regardless of whether that agency is designated a “FEPA” by EEOC regulations. Title VII[3] and the ADEA themselves, when read in conjunction with Oklahoma law, provide that employment discrimination proceedings in Oklahoma must begin with the State, and so 300 days necessarily is the applicable limitations period. The defendant’s argument to the contrary fails to take any account of the statutory language, and instead rests on a misinterpretation of the EEOC’s published regulations.

The applicable charge-filing period for Title VII is derived from the interplay between section 706(e), 42 U.S.C. § 2000e-5(e), which contains the 180/300-day limitations period, and section 706(c), 42 U.S.C. § 2000e-5(c), which explains what circumstances require that proceedings begin with the State and how long after the commencement of those proceedings an individual must wait before his EEOC charge may be filed. If a state agency—FEPA or not—meets the criteria in section 706(c), then section 706(e) provides that the limitations period for filing with that agency is 300 days.

Section 706(c) of Title VII provides, in relevant part:

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice . . . upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . .

42 U.S.C. § 2000e-5(c). The ADEA has an analogous provision that uses slightly different wording, but is effectively the same.[4] As the Supreme Court put it, “the filing provisions of the ADEA and Title VII are ‘virtually in haec verba,’ the former being patterned after the latter.” Commercial Office Prods., 486 U.S. at 123-24 (quoting Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755 (1979)); see also Oscar Mayer, 441 U.S. at 758 (taking note of “the clear and convincing evidence that Congress intended § 14(b) to have the same meaning as §706(c).”). Thus, for purposes of the present analysis, references to Title VII, the ADA, and the ADEA are essentially interchangeable.

Oklahoma meets Title VII’s standards for mandatory commencement of proceedings with the State because (1) it has a statute prohibiting employment discrimination on the basis of age and disability and (2) the OAG is authorized to grant or seek relief from such discriminatory practices. See Okla. Stat. Ann. tit. 25, §§ 1350(B) (listing age and disability among the bases for Oklahoma employment discrimination claims), 1350(G) (setting out available remedies). Because the Oklahoma statute and the OAG meet the requirements of both statutory provisions, § 706(c) requires that proceedings be instituted with the OAG before Chandler’s charge could be deemed filed with the EEOC, and it makes no difference to this analysis whether the OAG has been formally deemed a FEPA. See, e.g., White v. Dallas Indep. Sch. Dist., 581 F.2d 556, 560 & n.2 (5th Cir. 1978) (en banc) (holding that designation of Texas district and county attorneys as recipients of charges under Texas law was sufficient to trigger deferral obligation). The EEOC terms jurisdictions like Oklahoma that meet both requirements of § 706(c) “deferral states.”

The question then becomes, how are proceedings “initially instituted” in deferral states? In Oklahoma, the MOU contains a mechanism for the EEOC to institute state proceedings by forwarding a copy of the charge to the OAG. The Supreme Court recognized this method as legitimate in Love v. Pullman Co., 404 U.S. 522 (1972), where it held that, under Title VII, the EEOC may initiate charge-filing proceedings with the state agency on behalf of a charging party. In relevant part, the Court explained:

The EEOC takes the position that [the charge-filing] requirements were fulfilled by the procedure followed in this case, whereby a charge filed with the EEOC prior to exhaustion of the state remedy was referred by it to the state agency, and then formally filed once the state agency indicated that it would decline to take action. . . . We hold that the filing procedure followed here fully complied with the intent of [Title VII], and we thus reverse the judgment of the Court of Appeals. Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself, nor is there any requirement that the complaint to the state agency be made in writing rather than by oral referral.

404 U.S. at 525 (emphasis added). See also Commercial Office Prods., 486 U.S. at 111 (“The EEOC’s referral of a charge initially filed with the EEOC to the appropriate state or local agency properly institutes the agency’s proceedings within the meaning of the Act, and the EEOC may hold the charge in ‘suspended animation’ during the agency’s 60-day period of exclusive jurisdiction.”) (citing Love, 404 U.S. at 525-26). The Love Court further clarified that the referral need not be formal or in writing, and could be made orally. Love, 404 U.S. at 525.

Section 706(e), 42 U.S.C. § 2000e-5(e), in turn, states that where proceedings are initially instituted with a State agency, then the 300-day limitations period applies:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . , except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, . . . and a copy of such charge shall be filed by the Commission with the State or local agency.

42 U.S.C. § 2000e-5(e)(1). The ADEA also provides for a 300-day limitations period in similar circumstances. 29 U.S.C. § 626(d)(1)(B) (providing that charges of discrimination “in a case to which section 14(b) [29 U.S.C. § 633(b)] applies, [must be filed] within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.”).

Accordingly, the 300-day limitations period applies to federal charges filed in Oklahoma, regardless of whether a charging party physically presents his charge to the OAG first or to the EEOC. Because Oklahoma is a deferral state, the terms of § 706(c) allow the State sixty days to process the charge before it may be deemed filed with the EEOC, “unless such proceedings have been earlier terminated.” The MOU, in turn, contains a waiver provision stating that all such proceedings are immediately terminated by the OAG and transferred back to the EEOC for processing. MOU § III (R.8-3 at 2). Thus, by operation of the automatic waiver, so long as the OAG receives notice of the charge within the 300-day limitations period, the charge is timely filed. See Commercial Office Prods., 486 U.S. at 122, 125 (finding that 300-day limitation period applied even though the charging party first filed her charge with the EEOC and that the state agency’s waiver of the deferral period “terminated” its proceedings within the 300-day limit, rendering the charge timely); see also id. at 123 (holding that “state time limits for filing discrimination claims do not determine the applicable federal time limit”).[5]

This understanding of Title VII and Oklahoma law is consistent with other language in the MOU. Section II(A) of the MOU provides that “[p]otential charging parties whose charges or allegations exceed one hundred eighty days shall be referred by the Attorney General’s office to the EEOC.” If the defendant’s reading of the law were correct, a charging party who went to the OAG to file a charge between 180 and 300 days after the alleged unlawful activity occurred would go through the futile step of being referred to the EEOC, per the terms of the MOU, only to be told that his charge was already untimely when it was presented to the OAG. This interpretation would render MOU § II(A) extraneous and nonsensical, which cannot have been the intent of the EEOC and the State in agreeing to it.

The defendant’s heavy reliance on the procedural requirements of the EEOC’s regulations, 29 C.F.R. §§ 1601.70 et seq., in support of its argument that Oklahoma is not a deferral state because the OAG is not a FEPA (R.8 at 7) is misplaced. Preliminarily, the regulations implementing the ADEA do not contain any list of FEPAs at all, a fact not addressed by the defendant. See 29 C.F.R. § 1626.10. Thus, neither the ADEA nor its regulations conditions any aspect of processing an ADEA charge on the existence of a FEPA, and whether or not a State agency is a FEPA is of no relevance at all under the statute.

With respect to the ADA, the regulations themselves explicitly state that, in any state where an agency meets the statutory requirements in § 706(c) of Title VII, the EEOC “shall” defer charges to the state agency. 29 C.F.R. § 1601.70(b) (“[I]f the Commission is aware that an agency or authority meets the above criteria for FEP agency designation, the Commission shall defer charges to such agency or authority even though no request for FEP agency designation has been made.”). Section 1601.70(b) is consistent with the language of Section 709 of Title VII, since the statute provides for the EEOC to enter into cooperative agreements with “State and local agencies charged with the administration of State fair employment practices laws,” without regard to FEPA designation. 42 U.S.C. § 2000e-8(b). Since FEPA status is not a prerequisite for deferral, the sole purpose of formal designation as a FEPA is to make the agency eligible for “certification,” which means that “the Commission shall accept the findings and resolutions of that agency as final in regard to all cases processed under contract with the Commission, as provided in section 709(b) of title VII, except that the Commission shall review charges closed by the certified FEP agency for lack of jurisdiction, as a result of unsuccessful conciliation, or where the charge involves an issue currently designated by the Commission for priority review.” 29 C.F.R. § 1601.77. As both the Supreme Court and the Tenth Circuit have observed, the EEOC’s interpretation of its own regulations is entitled to heightened deference. See, e.g., Commercial Office Prods., 486 U.S. at 115; Smith, 180 F.3d at 1165 n.5.

II. Although Chandler’s Charge Was Not Filed With the OAG Within 300 Days, This Court Should Apply Equitable Tolling to Hold It Timely Filed Because the EEOC, Not Chandler, Was Solely Responsible for Any Filing Outside the Limitations Period.

Given that the 300-day limitations period applies, the next question is whether Chandler’s charge was timely “initially filed” with the OAG within that limitations period. Prior to the dissolution of the OHRC and the worksharing agreement, the EEOC acted as OHRC’s agent for purposes of receiving charges, and so filing a charge with the EEOC served to institute state proceedings immediately. Worksharing Agreement § II(A) (R.8-2 at 2) (“In order to facilitate the assertion of employment rights, the EEOC and the OHRC each designate the other as its agent for the purpose of receiving and drafting charges, including those that are not jurisdictional with the agency that initially receives the charges. The EEOC’s receipt of charges on the OHRC’s behalf will automatically initiate the proceedings of both the EEOC and the OHRC for the purposes of Section 706 (c) and (e)(1) of Title VII.”). The worksharing agreement also waived the State’s right to initial processing of such charges, so that under section 706(c) there was no need to wait sixty days before EEOC proceedings could be commenced, and the EEOC charge could be deemed “filed” on the same day that the EEOC received the charge. Worksharing Agreement § III(A) (R.8-2 at 3).

The MOU retains this automatic waiver by the State, so that Chandler’s charge may be considered filed with the EEOC as soon as State proceedings are commenced. MOU § III (R.8-3 at 2). However, the absence of the “agent” language from the MOU means that instituting State proceedings is no longer automatic, as it was under the OHRC worksharing agreement. Instead the EEOC must now take some step to contact the OAG and let it know of the charge.

Per the MOU, the EEOC and the OAG agreed to send each other copies of all charges of discrimination each received within ten calendar days of receipt. MOU § II(B) (R.8-3 at 2). Here, the EEOC sent a copy of Chandler’s charge to the OAG on June 27, 2013, fifty days after the EEOC received the charge, and 335 days after the date of Chandler’s discharge. Letter from Holly Waldron Cole to OAG of June 27, 2013 (Exh. A); R.8-1 (charge). Accordingly, although the 300-day limitations period applies, the EEOC’s notice to the OAG of Chandler’s charge came thirty-five days too late to fall within that period.

Nonetheless, the district court should apply equitable tolling principles to find Chandler’s charge timely filed. Preliminarily, to the extent the defendant advanced the argument that the plaintiff’s failure to timely file a charge deprives a federal court of jurisdiction over claims based on that charge, this position is simply wrong as a matter of law. As the Supreme Court held in Zipes v. Trans World Airlines, 455 U.S. 385 (1982), “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Id. at 393; see also Johnson v. United States Postal Serv., 861 F.2d 1475, 1483-84 & n.5 (10th Cir. 1988).

In this case, the failure to transmit Chandler’s charge to the OAG in a timely fashion rests entirely on the shoulders of the EEOC’s Oklahoma City Area Office. The MOU required the EEOC to send all charges to the OAG within ten days of receipt, MOU § II(B) (R.8-3 at 2), but the EEOC simply and inexplicably failed to do so here. If the EEOC had timely sent Chandler’s charge to the OAG, whether in writing or orally, it would have been timely filed within the 300-day limitations period.

The Tenth Circuit has recognized that equitable tolling may serve to extend the time limits for filing of charges. See Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984). In Martinez, the court explained that the Tenth Circuit’s decisions have recognized several circumstances where equitable tolling may be appropriate: where “active deception” was involved, where a plaintiff was “lulled into inaction by her past employer, state or federal agencies, or the courts,” and where a plaintiff was “actively misled” or “has in some extraordinary way been prevented from asserting his or her rights.” Id. Unilateral error on the part of the processing agency would prevent a plaintiff in an extraordinary way from asserting his or her rights. A charging party in Chandler’s position would have no idea that the EEOC failed to forward his charge to the OAG, nor would he have any opportunity whatsoever to affect the EEOC’s internal process in this regard.

Although the Tenth Circuit has not reached the specific issue of agency inaction or misconduct as grounds for equitable tolling, appellate courts across the country have held that, where the EEOC or a state agency fails to follow its own rules or procedures, through no fault of the charging party, that failure should not redound to the disadvantage of the charging party. See, e.g., Edelman v. Lynchburg Coll., 300 F.3d 400, 404 (4th Cir. 2002) (“The problems noted by the [defendant] are not deficiencies in the charge; they are failures of the EEOC to carry out its responsibilities under Title VII. . . . Once a valid charge has been filed, a simple failure by the EEOC to fulfill its statutory duties regarding the charge does not preclude a plaintiff’s Title VII claim.”); Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1570-71 (11th Cir. 1996) (“Title VII does not condition an individual’s right to sue upon the EEOC’s performance of its administrative duties. . . . Accordingly, the fact that the EEOC may not have complied with its own regulations is of no moment in determining whether appellants are entitled to equitable modification.”) (internal citations and quotation marks omitted); Albano v. Schering-Plough Corp., 912 F.2d 384, 387 (9th Cir. 1990) (holding that, when the EEOC improperly refuses to amend a claimant’s timely EEOC charge, “the collapse of the EEOC’s conciliatory and investigatory function is due to the EEOC’s own errors, not the claimant’s”); Sedlacek v. Hach, 752 F.2d 333, 335 (8th Cir. 1985) (“The action or inaction of the EEOC . . . cannot affect a complainant’s substantive rights under Title VII.”); White, 581 F.2d at 562 (“We think that the EEOC’s failure to follow its own regulations sufficiently misled Mrs. White and that their mistakes should not redound to her detriment.”); Hicks v. ABT Assocs., Inc., 572 F.2d 960, 965 (3d Cir. 1978) (holding that, where the EEOC “fail[ed] . . . to follow the statute and its own regulations[, t]he individual employee should not be penalized by the improper conduct of the Commission.”). We are aware of no holding to the contrary.

Accordingly, this Court should reject the defendant’s motion to dismiss, holding that the 300-day limitations period is applicable to Chandler’s charge, and that Chandler is entitled to equitable tolling of that deadline based on the EEOC’s error in processing his charge.

CONCLUSION

For the foregoing reasons, the EEOC respectfully urges this Court to deny Defendant City of Lawton’s motion to dismiss claims 1 and 2 of Chandler’s complaint.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

[1] “R.#” refers to this Court’s docket entry.

[2] The Commission takes no position on any other issue in this case.

[3] Title VII procedures govern ADA claims. See 42 U.S.C. § 12117(a).

[4] 29 U.S.C. § 633(b) (“In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated . . . .”).

[5] The defendant argues that, based on the Supreme Court’s decision in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the legislative history of the deferral provisions reflects that their sole purpose was to give FEPAs in deferral states an opportunity to redress the charge—an interest not present in this case where the MOU waives that right. R.8 at 9 (citing Mohasco, 447 U.S. at 821). The defendant’s characterization of the legislative history and its ramifications is, at best, only partially correct. Eight years after Mohasco, in Commercial Office Products, the Court made clear that the deferral provisions also served another purpose: “to promote ‘time economy and the expeditious handling of cases.’” 486 U.S. at 118 (quoting 110 Cong. Rec. 9790 (1964) (remarks of Sen. Dirksen)). As the Court observed in Commercial Office Products, a state agency’s decision to waive its right to initial charge processing without relinquishing jurisdiction permanently is thoroughly consistent with both goals of the deferral provisions: affording states the opportunity to avoid unnecessary federal intervention and promoting efficiency in charge processing. 486 U.S. at 119.